U.S. v. Manfredi, s. 81-1359
| Decision Date | 26 January 1984 |
| Docket Number | 81-1360 and 81-1681,Nos. 81-1359,s. 81-1359 |
| Citation | 722 F.2d 519 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Paul MANFREDI, George Weggers, and Emory Butner, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David V. Marshall, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
Howard Ratner, David L. Shorett, Harvey Chamberlain, Laurence B. Finegold, Seattle, Wash., for defendants-appellants.
Appeal from the United States District Court for the Western District of Washington.
Before BROWNING, Chief Judge, TUTTLE, * and REINHARDT, Circuit Judges.
Butner, Manfredi and Weggers appeal from convictions for conspiracy to distribute cocaine, distribution of cocaine, and possession of cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1976) and 18 U.S.C. Sec. 2 (1976). We affirm.
Agents of the Drug Enforcement Administration (DEA), cooperating with officers of the Royal Canadian Mounted Police (RCMP), investigated cocaine trafficking in the Bellingham, Washington area. James Ballendine, an RCMP undercover agent, assumed the identity of a "middle level drug trafficker from Vancouver," and in this capacity became acquainted with Jeffrey Randall, who occasionally sold him small amounts of cocaine. Ballendine expressed interest in purchasing as much as five pounds. Thereafter, Randall met with Ballendine in Bellingham to confirm that a "source in Florida" could supply five pounds of cocaine.
One week later, Ballendine met Randall by arrangement at the Seattle-Tacoma Airport and accompanied him to the lounge of the nearby Seattle Holiday Inn. Sergeant Lee Joubert of the RCMP, also acting undercover, joined them and the three discussed the cocaine transaction, agreeing upon the sale of about five pounds for $160,000. Ballendine said he wanted to purchase all five pounds at once. Randall said he was not sure the transaction could be conducted in this manner but would check with his associates. He left the lounge, entered the hotel elevator, and rode to the fourth floor. Surveillance officers saw him enter Room 410.
A surveillance officer contacted the hotel management and learned that Room 410 and the adjoining room, 412, were registered to appellant Emory Butner and occupied by Butner and two others. One of the DEA agents, Special Agent Smith, knew Butner had been involved in drug trafficking between Florida and Washington State from July 1979 through January 1980, and had a reputation for violence. In addition, Agent Smith had been told by John Bora, Butner's brother-in-law, that Weggers was an associate of Butner and a member of the "Bandito" motorcycle gang; and that Butner had used Weggers to threaten Bora over a drug debt. Smith notified the other agents about Butner and Weggers and their propensity for violence.
After visiting Room 410, Randall returned to Ballendine and Joubert in the hotel lounge and told the agents "his people from Florida" were unwilling to complete the transaction in one step. Manfredi entered the lounge, and Ballendine and Joubert showed him a satchel containing $160,000. Manfredi told the agents he had no authority to decide whether all the cocaine could be transferred at once and said he would have to consult "his people" from Florida. He left the lounge, and agents saw him enter Room 410.
Manfredi returned five minutes later. He told Ballendine and Joubert they could examine half of the shipment, approximately two and a-half pounds, in Randall's tenth floor room, and deliver the cash ($80,000) for that portion. Randall and Ballendine left the lounge to go to the tenth floor room, Manfredi and Joubert staying behind. The elevator stopped on the fourth floor and Weggers entered. Randall introduced Ballendine and the three proceeded to Room 1003. After they entered the room, Weggers produced six packages from under his sweater and offered them for inspection. An agent observed Butner in the corridor listening at the door of the room. Shortly after Weggers produced the packages, Ballendine activated a silent alarm. Approximately two minutes later DEA agents simultaneously arrested Manfredi in the lounge and Weggers and Randall in Room 1003, and seized the two and a-half pounds of cocaine. By then, Butner had returned to his fourth floor rooms.
After his arrest Weggers admitted he had a gun in the hotel, but said it was not in Room 1003. DEA agents on the fourth floor were advised of what had occurred.
Shortly thereafter, an agent equipped with a bulletproof vest inserted a passkey in the lock to Room 410, knocked on the door, shouted "Federal agents, open the door," waited a few seconds, and entered. The room was empty. The agent then knocked on the connecting door to Room 412, announced "Federal agents, open up," waited a few seconds, kicked in the door and entered. Butner and Sandra Moore were arrested inside. The agents subsequently obtained a search warrant for rooms 1003, 410 and 412, as well as for Moore's purse, and searched them, discovering cocaine in rooms 1003 and 410 and in Moore's purse.
Butner contends that his arrest was unlawful because the circumstances were not sufficiently exigent to excuse the agents' warrantless entry into rooms 410 and 412. He also challenges the district court's finding that these same circumstances justified the agents' failure to comply with the federal "knock and announce" statute. 18 U.S.C. Sec. 3109 (1976).
Numerous cases have sustained warrantless entries to effect arrests where probable cause existed and the circumstances justified a reasonable belief that evidence would be destroyed or risk of harm to the police or others would be enhanced if entry were delayed until a warrant could be obtained. See, e.g., United States v. Kunkler, 679 F.2d 187, 191-92 (9th Cir.1982), and cases cited therein.
We agree with appellant that in determining whether exigent circumstances justify an exception to the general rule requiring a warrant, the burden rests on the government to show that the warrantless entry was "imperative." McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 196, 93 L.Ed. 153 (1948). We also agree with appellant that this standard is not satisfied unless the government demonstrates that a warrant could not have been obtained in time even by telephone under the procedure authorized by Fed.R.Crim.P. 41(c)(2). United States v. Cuaron, 700 F.2d 582, 589 (10th Cir.1983); United States v. McEachin, 670 F.2d 1139, 1147 (D.C.Cir.1981).
We conclude the government discharged its burden with respect to the warrantless entry of rooms 410 and 412. The agents had reasonable grounds to believe that at least two persons identified as the source of the five pounds of cocaine were present in the rooms. They had reason to believe these persons had a gun and two and a-half pounds of cocaine, and that at least one of them was likely to be violent. They also knew that the occupants of the rooms had sent a cohort to deliver the first two and a-half pounds of cocaine to purported buyers in another room in the same hotel, and expected him to return with $80,000 in cash, to be followed by the exchange of the remaining cocaine for another $80,000. The rooms were just six floors apart in the same hotel. The details of the two-part exchange had already been agreed to, and there was no reason to anticipate delay. Failure of the emissary to return as expected would inevitably alarm the waiting principals, creating a substantial risk that the remaining cocaine might be destroyed and that an armed escape might be attempted. Immediate action was therefore imperative.
The facts in this case are close to those held to justify warrantless entries in United States v. Cuaron, 700 F.2d at 585, and United States v. Kunkler, 679 F.2d at 189-90, and similar to those in United States v. McLaughlin, 525 F.2d 517, 519 (9th Cir.1975); United States v. Curran, 498 F.2d 30, 35-36 (9th Cir.1974); and United States v. Bustamante-Gamez, 488 F.2d 4, 6-7 (9th Cir.1973).
Butner argues that a warrantless entry was not justified principally for three reasons: (1) the agents had probable cause to obtain a warrant before the arrests in Room 1003 precipitated the crisis; (2) the emergency arising from these arrests was foreseeable and avoidable; and (3) the destruction of evidence and danger of harm were in any event not certain or probable, but only possible.
(1) Butner argues that an hour and a half before the agents entered rooms 410-412, they had grounds to believe five pounds of cocaine were in these rooms or in Room 1003. This was ample time, Butner argues, to have obtained a telephonic warrant, and a warrantless entry was therefore not imperative. See United States v. Robertson, 606 F.2d 853, 860 (9th Cir.1979). However, the agents had nothing but Randall's verbal assurance that the suspects could provide cocaine. It was reasonable for them to permit the transaction to proceed until guilt had been clearly and unequivocally established by delivery of the cocaine.
(2) Alternatively, Butner argues that the agents proceeded with undue haste; that they could have permitted the entire transaction to be completed, thus gaining additional time that would have permitted the agents to obtain a warrant. The exigency created by the premature arrests in Room 1003, Butner argues, was foreseeable and avoidable and therefore cannot justify the warrantless entry into rooms 410 and 412. See Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970); United States v. Calhoun, 542 F.2d 1094, 1102 (9th Cir.1976). However, this course of action would have required the agents to relinquish possession and control of $160,000 in cash. It would have led to unpredictable consequences with the five suspects in...
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