U.S. v. Hackett

• Decision Date: 06 November 1980
• Docket Number: No. 79-1263,79-1263
• Citation: 638 F.2d 1179
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Abbay HACKETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1179

638 F.2d 1179

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Abbay HACKETT, Defendant-Appellant.

No. 79-1263.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 12, 1980.

Decided Sept. 15, 1980.

Rehearing Denied Nov. 6, 1980.

Marcus S. Topel, Paul D. Wolf, San Francisco, Cal., for defendant-appellant.

Robert S. Mueller, III, Asst. U.S. Atty., San Francisco Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY and GOODWIN, Circuit Judges, and SOLOMON, ^* District Judge.

CHOY, Circuit Judge:

Hackett was convicted of conspiracy to import cocaine and importation of cocaine in violation of 21 U.S.C. §§ 952 and 963. We affirm.

I. STATEMENT OF FACTS

Customs agents discovered 58 pounds of cocaine hidden in the false bottom of a crate shipped from Santa Cruz, Bolivia, and addressed to I.K.I., Inc., San Francisco, a business owned and operated by Hackett. Agents of the Drug Enforcement Administration (DEA) removed the cocaine and substituted a look-alike, non-narcotic substance. The agents also inserted an electronic transmitter emitting a slow impulse which could be monitored over a radio. The transmitter was designed so that this impulse would accelerate greatly when the drug compartment was reopened.

DEA agents followed Hackett from the San Francisco airport where he picked up the crate, over the Golden Gate Bridge into Tiburon where he picked up an accomplice, Turner, and on to Hackett's residence a few blocks away where the crate was unloaded into his garage. The transmitter began emitting the fast signal indicating the drug compartment had been opened, and after a few seconds went dead. The agents closed in. After demanding entry and receiving no response, agents entered the garage. They found the crate upside down with its bottom ripped open. The crate and the garage floor around it had been wetted down, presumably with a nearby garden hose. (The agents surmised that this had been done to short circuit the transmitter.) Hackett and Turner, the electronic transmitter and the contents of the drug compartment were gone.

A short time later, Turner was spotted on the street in front of Hackett's residence. He was questioned and arrested. Hackett's girl friend arrived shortly and admitted agents into the house. Hackett was found hiding in an upstairs bathroom where he was arrested. A search warrant for Hackett's house was then obtained and evidence implicating Hackett in the drug conspiracy was discovered. The electronic transmitter and the other contents of the hidden compartment were never recovered.

Hackett was convicted after a jury trial and sentenced to 10 years in prison and fined $30,000. (Additional facts are included in the discussion below.)

II. DISCUSSION

A. Hackett's Warrantless Arrest

The district court denied Hackett's motions to suppress all evidence derived from the warrantless entry of the garage and Hackett's warrantless in-house arrest on the ground that exigent circumstances excused the agents from any warrant requirement. ¹ Hackett's attack on this conclusion is three-pronged. First, he contends that when the transmitter indicated the drug compartment had been opened, immediate entry into the garage was not necessary to prevent destruction of evidence or escape of the suspects; the police had the area "secured," he says, and could have waited until a warrant was procured before entering the garage to make the arrest. Second, he contends that even if exigent circumstances existed at that point, they were, insufficient to abrogate the warrant requirement because they were created by the agents' use of the controlled delivery procedure and failure to procure in advance an arrest warrant. Finally, Hackett maintains that even if the warrantless entry into the detached garage was justified, any exigency did not extend to his residence where he was arrested.

1. The entry into the garage

Agents observed Hackett and Turner unloading the cocaine crate into Hackett's garage. Approximately 5 to 10 minutes later, the transmitter began emitting the fast signal indicating the drug compartment had been opened; after 10 to 15 seconds the transmitter went dead. In less than 2 minutes, agents were outside Hackett's garage. The door was down but slightly ajar. The agents identified themselves, demanded entry, and upon hearing no response entered the garage and encountered the scene described above.

When Hackett and Turner opened the bottom of the crate to enter the drug compartment and discovered the transmitter, they realized that they were under surveillance and in imminent danger of arrest. Immediate action was necessary to prevent their escape and destruction of evidence. Hackett and Turner had in fact managed temporarily to escape and the transmitter and the contents of the drug compartment were permanently disposed of by the time the agents entered the garage only a few minutes later. Thus, exigent circumstances existed at the time of the agents' entry into the garage. See United States v. McLaughlin, 525 F.2d 517, 521 (9th Cir. 1975), cert. denied, 427 U.S. 904, 96 S.Ct. 3190, 49 L.Ed.2d 1198 (1976); United States v. Bustamante-Gamez, 488 F.2d 4, 8-9 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974).

2. The agents' creation of exigent circumstances

In United States v. Dubrofsky, 581 F.2d 208 (9th Cir. 1978), we approved the warrantless use of a controlled delivery procedure almost identical to that used here. Thus, the procedure is not per se objectionable. ²

Hackett contends, however, that the agents had several days' notice that Hackett would be picking up the crate at the airport and had probable cause to arrest him there, and that they also knew at least 20 to 30 minutes before his arrival that Hackett was "in all probability" destined for his residence. Thus, an in-house arrest was "foreseeable," argues Hackett, and any exigency existing at that time was created by the agents' own failure to procure a warrant in advance, or at least to arrange for the procurement of a telephonic warrant.

In support of this argument, Hackett cites United States v. Curran, 498 F.2d 30, 34 (9th Cir. 1974), and United States v. Calhoun, 542 F.2d 1094, 1102 (9th Cir. 1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 792, 50 L.Ed.2d 781 (1977).

In Curran, officers received a reliable tip that a large quantity of marijuana was at a certain house and would be shipped out in small quantities. They staked out the house and stopped three cars that left, finding three kilograms of marijuana in one. Without a warrant, officers approached the house; when the door was opened, they smelled marijuana. They entered and discovered marijuana.

The Government's exigency theory was that the officers approached the house simply to ask questions (for which no warrant is required); when the door was opened and the officers simultaneously smelled the marijuana and revealed their presence, it became necessary to enter immediately to prevent destruction of evidence.

We found it clear, however, that the officers did not intend merely to ask questions but also to search for marijuana.

Knowing that marijuana was present and knowing that they would make their presence known to the occupants, the officers consciously established the condition which the government now points to as an exigent circumstance. If exigency arises because of unreasonable and deliberate delay by officers, it is not an exigent circumstance capable of dispensing with the requirement of a warrant.

498 F.2d at 34.

We went on, nonetheless, to justify the entire raid, including the approach to the door, on an exigency theory. There was every reason to believe that the marijuana was in the very process of being distributed. We held that even though it might have been possible to attempt to stop all cars leaving the house until a warrant to search the house was obtained, this would have been unreasonable and burdensome under the circumstances. Moreover, word of such a siege soon would have reached the house, and the evidence would then have been destroyed. Id. at 35.

In Calhoun, DEA agents and local police officers had been investigating for many months members of a suspected drug importation ring. When they learned that a major drug transaction had taken place, they obtained and executed a search warrant for Calhoun's apartment. A shoot-out ensued in which the ring leader was killed and Calhoun wounded. A large quantity of heroin was discovered. About an hour later, other officers went to Sheppard's apartment to arrest him without a warrant. Sheppard was gone but evidence incriminating him was found in his apartment. 542 F.2d at 1102.

The Government argued exigency to enter Sheppard's apartment, saying that Sheppard might have learned of the raid on Calhoun's apartment and attempted to flee. We held that though this was possible, "nothing in the record indicates it was more likely here than in any other case where there are two or more suspects and all are not arrested at once." Id. And the ability of the officers to maintain surveillance while a warrant was sought "suggests that exigent circumstances did not exist." Id.

Here, on the other hand, it was necessary to effect the arrest as quickly as possible in order to catch the suspects in the act of opening the false bottom thereby establishing their guilty knowledge of the drug compartment and its contents. Moreover, as the agents testified the situation of Hackett's house and garage on the heavily-wooded bayside bluff made it difficult if not impossible to surround and secure the residence, as we felt could have been done with Sheppard's apartment. This was demonstrated by the fact that Hackett and Turner did manage to elude the agents closing in on the garage. Turner made it all the way out onto the street, apparently having gone down a bluff trail to the...