U.S. v. Magluta

• Decision Date: 21 February 1995
• Docket Number: No. 93-5069,93-5069
• Citation: 44 F.3d 1530
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Salvador MAGLUTA, a/k/a Sal, a/k/a Santiago Menendez, a/k/a Angelo Maretto, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1530

44 F.3d 1530

UNITED STATES of America, Plaintiff-Appellant, v. Salvador MAGLUTA, a/k/a Sal, a/k/a Santiago Menendez, a/k/a

Angelo Maretto, Defendant-Appellee.

No. 93-5069.

United States Court of Appeals,

Eleventh Circuit.

Feb. 21, 1995.

Christopher Clark, Ann Hayes, Linda Collins Hertz, Asst. U.S. Attys., Miami, FL, for appellant.

Jeffrey S. Weiner, Miami, FL, for Orlando Lorenzo.

Martin G. Weinberg, Boston, MA, for Salvador Magluta.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and CLARK, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

The United States government appeals the district court's order granting Salvador Magluta's motion to suppress evidence obtained by federal and state law enforcement agents after entry into a residence for the purpose of executing outstanding arrest warrants. ¹ We REVERSE and REMAND.

I. Factual Background and Procedural History

In April 1991, a federal grand jury in the Southern District of Florida returned a 24 count indictment charging Salvador Magluta with numerous offenses involving cocaine trafficking, including conspiracy to import cocaine, conspiracy to possess with intent to distribute cocaine, importation of cocaine, and possession with intent to distribute cocaine. Orlando Lorenzo was charged in the conspiracy counts of the indictment. ² Arrest warrants were issued for Magluta and Lorenzo, and the United States Marshals Service's fugitive apprehension unit was assigned the task of locating Magluta and Lorenzo, as well as other named suspects. ³ Despite extensive investigation, the marshals were unable to locate or apprehend Magluta and Lorenzo until October 13, 1991, when a previously reliable confidential source in custody provided Deputy Marshal Keith Braynon with information regarding the location of Magluta's and Lorenzo's respective residences. The confidential informant ("CI") had obtained this information from Luis Mendez, a co-defendant in the instant case who had been arrested less than a month earlier. The CI gave Braynon a map showing the location of Magluta's residence, ⁴ and informed Braynon that Lorenzo was Magluta's friend and drug associate, who frequently visited Magluta's house. The CI also reported that there was a smaller residence on the premises occupied by bodyguards, that Lorenzo lived south of Magluta's residence in an apartment building on Miami Beach, and that Mendez had been at the residence within the past month.

On October 15, 1991, at about 6 a.m., Braynon went to the location of the house on the map, later identified as 98 East La Gorce Circle (hereinafter "98 East La Gorce"), and verified that the house was lived in. The house is located on a private island, La Gorce Island, the sole entrance to which is monitored by guards who operate an entry gate from a guard shack. Braynon noted that the lawn was manicured and that a porch light was on. A gold Honda car, a large motor home, a white Chevrolet Astro van, and a gray Pathfinder were parked outside of the residence. Later that morning, Braynon returned and the marshals established a surveillance team at the entrance to La Gorce Island. At approximately 12:30 p.m., the gold Honda drove away; the driver, according to Braynon, resembled Lorenzo. When the afternoon guard, Michael Vaccaro, arrived at 3:00 p.m., Braynon showed him photos of Lorenzo and Magluta. According to Braynon, Vaccaro identified Lorenzo as a person who frequented 98 East La Gorce, and although he could not positively identify Magluta, he noted that a man who looked like Magluta lived at 98 East La Gorce and drove a white Chevy Astro van. Contrary to Braynon's recollection, Vaccaro later testified that he had only identified Lorenzo to Braynon, and that he did not provide any information with respect to Magluta, the owner of the Chevy Astro van, or the identity of the resident of 98 East La Gorce. ⁵ Vaccaro testified that Magluta was not the man that he had seen driving the white Astro van, but rather, he provided a description of the van's driver that did not match Magluta.

At approximately 5:00 p.m., the gold Honda returned to the island, and Braynon, who was stationed in the guard's shack, thought he recognized the driver as Lorenzo. Based upon the facts described above, Braynon and his supervisor, Deputy Marshal Sean Conboy, decided that they had sufficient information to conclude that fugitives named in the indictment were present at 98 East La Gorce. Between 5:30 and 6:00 p.m. the agents and local police approached the house in marked Miami Beach police cruisers. Conboy stated that four men were standing in the front porch area of the house, and that upon seeing the police cars approach, two men, including a man matching Lorenzo's description, entered the house. The other two men on the porch immediately surrendered. Over a loudspeaker, Conboy directed everyone to leave the house. Two more men complied, but based upon the statements of detainees who had exited the residence, the marshals believed that at least two suspects remained inside.

After several minutes, a six person special operations group (SOG) team, ⁶ led by Inspector Michael Cameron, sprayed an irritant gas, similar to tear gas, into the house. A minute later the team entered and performed a protective sweep of the house, which lasted five to seven minutes. During the sweep, the team located Lorenzo, who was suffering from effects of the gas, and escorted him from the house. Also during the sweep, marshals observed in plain view two nylon gym bags, numerous papers, telephones, a telefax machine and a floor safe. A detainee told Conboy that another man remained in the house, and an agent then observed that a person might have jumped from a second story window. A search of the bushes surrounding the house, with the assistance of a Miami Beach police dog, resulted in Magluta's capture.

Simultaneously with the search of the main house, Miami police secured the guest house and executed a protective sweep of that structure as well. During the sweep, police discovered a box containing stacks of currency. ⁷ No further search occurred until Special Agent David Borah of the Drug Enforcement Agency obtained a search warrant. The search executed pursuant to the warrant located fax machines, large assortments of jewelry and U.S. currency, a suitcase with ledgers, portable phones, beepers and an electronic rolodex.

Magluta and Lorenzo moved to suppress the evidence seized during the above-described searches. After an evidentiary hearing, the magistrate judge issued a report and recommendation in which he found that there was probable cause to believe that Magluta resided at 98 East La Gorce, ⁸ but that the marshals did not have probable cause or reason to believe Magluta was at the residence at the time the search took place. The magistrate judge concluded that there was no evidence that Magluta was at the property on the day of the search, or anytime within the previous month. He opined that Lorenzo's presence was not dispositive as to Magluta's presence, and the fact that Magluta might have been connected to the Astro van was of "little import since no one had seen Magluta in the house for at least one month," and there was no evidence as to when Magluta last drove the vehicle. The magistrate judge also concluded that neither the inevitable discovery nor independent source exceptions applied in this case. Accordingly, he recommended that the motion to suppress be granted. The district court accepted the magistrate judge's report and recommendation in its entirety, and granted Magluta and Lorenzo's joint motion to suppress. This appeal followed.

II.

The Supreme Court set the standard for entry into residences based upon an arrest warrant in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), where the Court stated: "[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Id. at 603, 100 S.Ct. at 1388 (emphasis added). Payton thus requires a two-part inquiry: first, there must be a reasonable belief that the location to be searched is the suspect's dwelling, and second, the police must have "reason to believe" that the suspect is within the dwelling. In this case, police had a valid arrest warrant for Magluta, and thus were privileged to enter 98 East La Gorce if they had reason to believe it was Magluta's residence, and if they had reason to believe that Magluta was home at the time of entry. As noted above, although the magistrate judge found that the government had sufficient information to believe that Magluta resided at 98 East La Gorce, he held that the evidence was insufficient to establish that Magluta was at home at the time of the entry. Therefore, he granted the motion to suppress. ⁹

The parties disagree as to the meaning of Payton 's "reason to believe" test. Magluta argues that the Payton standard is the functional equivalent of probable cause; the government contends that the standard embodies a lesser degree of certainty than probable cause.

The "reason to believe" standard was not defined in Payton, and since Payton, neither the Supreme Court, nor the courts of appeals have provided much illumination. See, e.g., United States v. De Parias, 805 F.2d 1447, 1457 (11th Cir.1986) (applying Payton without defining "reason to believe"), cert. denied, 482 U.S. 916, 107 S.Ct. 3189, 96 L.Ed.2d 678 (1987). Consequently, the parties have been forced to assert somewhat strained rationales for their respective interpretations. Magluta notes that it was not argued in Payton that the police lacked probable cause to believe the suspect was home, Payton, 445 U.S. at 582-83, 100 S.Ct. at 1378; and that the dissent in Payton treated the majority opinion as if it...