U.S. v. Pantoja-Soto

Decision Date27 August 1984
Docket NumberNo. 82-5454,R,PANTOJA-SOT,82-5454
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Fulgencioaul Pal-Sali, Nelio A. Nunez and Manuel Roberto Guerrero, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Gelber, Glass & Canal, P.A., Roy T. Gelber, N. Joseph Durant, Miami, Fla., for Pal-Sali, Nunez and Guerrero.

Theodore J. Sakowitz, Federal Public Defender, Robyn J. Hermann, Charles Auslander, Asst. Federal Public Defenders, Miami, Fla., for Patoja-Soto.

Stanley Marcus, U.S. Atty., Neil Taylor, Sonia Escobio O'Donnell, Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before TJOFLAT and CLARK, Circuit Judges, and GOLDBERG *, Senior Circuit Judge.

GOLDBERG, Senior Circuit Judge:

Appellants Fulgencio Pantoja-Soto, Raul Pal-Sali, Nelio Nunez and Manuel Guerrero appeal their convictions on two counts of federal drug law violations. We find no reversible error in the conviction of Pantoja-Soto and therefore affirm the jury's verdict as to him. With respect to Pal-Sali,

Nunez and Guerrero, however, we find that their convictions are not supported by sufficient evidence and reverse.


On April 6, 1981, Special Agent Pedro Velazco of the Drug Enforcement Administration (DEA) received information via a confidential informant (the "CI") that a particular person in the Miami Beach area had a large amount of methaqualone tablets for sale. At around 11:30 a.m. of the following day, Agent Velazco and the CI met with Pantoja at the latter's apartment. A sale of approximately 50,000 methaqualone tablets was negotiated at that meeting. Pantoja said that he could obtain the tablets for seventy-five cents each, for a total of $37,000, and that it would take thirty minutes to arrange. Agent Velazco and the CI were to leave the apartment, and Agent Velazco was to phone Pantoja in thirty minutes. When he called, Agent Velazco was told that the pills were on the way but that they had not yet arrived. Velazco called several more times throughout the afternoon; each call produced the same answer--the drugs had not arrived. At approximately 7:30 that evening, Agent Velazco dropped the CI at Pantoja's apartment to find out the problem. Velazco then parked his car at a location several blocks from appellant's apartment. About forty minutes later, the CI and another individual, Angel Diaz, arrived in a maroon automobile at Velazco's location. Diaz indicated that he was the owner of the 50,000 methaqualone tablets and that the only problem in making the deal was that the CI owed him money. Velazco assured Diaz that if Diaz would deliver the pills he, Velazco, would make sure Diaz was paid what he was owed. Diaz agreed to the sale; he then left with the CI in the maroon car. A short while later, other surveillance agents notified Velazco that the maroon vehicle, with five individuals inside, was returning to Velazco's location. Velazco then left the location. He called Pantoja's apartment at around 8:45 p.m., explaining that he had left the spot because he had observed a car full of people heading his way and he did not want the $37,000 "ripped off." Diaz assured Velazco that no "rip off" had been intended. According to Diaz, only Pantoja, Pantoja's girlfriend, Diaz, Diaz's girlfriend, and the CI had been in the car. Diaz said the deal was still on, but, the location was to be changed. The deal was now to take place at a gas station in a section of Miami known as "Little Havana."

Agent Velazco and the CI proceeded to the vicinity of the gas station. Velazco searched the CI and then, around 9:30 p.m., dropped the CI near the station. Diaz and several others arrived in the maroon automobile, picked up the CI, and drove him to the gas station. Shortly thereafter, the CI returned to Agent Velazco and handed him three tablets. Agent Velazco "field tested" the tablets and determined them to be of "bootleg" rather than pharmaceutical quality. Velazco then made arrangements with other DEA agents and the local police to raid the gas station. At 9:55 p.m., Agent Velazco, with a pistol in each hand, led a charge of 14 law enforcement officers, all with weapons drawn, into the gas station.

The station, located on a corner lot, has gas pumps fronting on both streets, an office, and three service bays. At the time of the raid the station was not open for business, and the lamps in the pump areas were not illuminated. A door connects the office to two of the service bays. On the night of the raid, the overhead doors on those two service bays were closed and locked. The only other door to the office, the door leading outside, was open, and the office lights were illuminated.

When the agents approached the station, Diaz and appellants Pantoja and Guerrero were kneeling together outside the station building. Next to them was an automobile with its hood up. Behind that vehicle was another automobile with two unidentified persons standing beside it. 1 Both vehicles

                were "some distance" away from the office and service bays.  Record, Vol. II at 76.  DEA Agent Snyder immediately arrested Diaz, Pantoja, and Guerrero.  Appellants Pal-Sali and Nunez were standing in the office of the station.  As Agent Velazco approached, Pal-Sali ran out the office's front door and was arrested by Velazco.  Nunez ran out the office's side door into the service bay area. 2   Two police officers and Velazco then entered the building and began looking for Nunez.  About ten minutes later, the officers located Nunez, hiding behind a rack of tires in a storeroom.  During the search for Nunez, Agent Velazco discovered four large boxes on the floor of one of the service bays.  Two of the boxes were open;  the methaqualone tablets were plainly visible

Pantoja-Soto, Pal-Sali, Nunez and Guerrero were all charged in the same two-count indictment. Count I alleges that appellants knowingly and intentionally possessed, with intent to distribute, a quantity of methaqualone tablets. 3 Count II charges that appellants knowingly and wilfully conspired to possess, with intent to distribute, methaqualone. 4 Upon motion by appellants Pal-Sali, Nunez and Guerrero, the district court severed their trial from Pantoja's. All four appellants moved to suppress evidence seized at the time of their arrests. That motion was denied after a hearing before a magistrate. A jury convicted Pal-Sali, Nunez and Guerrero on both counts, and the three appellants' subsequent motion for a judgment of acquittal was denied. Appellant Pantoja-Soto was convicted by a jury in a separate trial. All appellants received prison terms.

The Fourth Amendment Claim

Appellant Pantoja claims that the court below erred in failing to suppress evidence that was seized when law enforcement officers entered the service bay area of the service station. 5 He contends that officers violated the Fourth Amendment by not obtaining a search warrant before entering the service station. 6 In reviewing this claim, we initially note that Fourth Amendment protection extends to business premises. G.M. Leasing Corp. v. United States, 429 U.S. 338, 354, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1977). Such protection contemplates that a neutral and detached magistrate issue a warrant, supported by probable cause, before law enforcement officers may enter the premises. Only in the face of "exigent circumstances," where obtaining a warrant would greatly compromise important law enforcement objectives, does the warrant requirement yield. When exigent circumstances coexist with probable cause, the Fourth Amendment has been held to permit warrantless searches and seizures. See generally United States v. Blasco, 702 F.2d 1315, 1324 (11th Cir.), cert denied sub nom.; Jamardo v. United States, --- U.S. ----, 104 S.Ct. 276, 78 L.Ed.2d 256 (1983), and Galvan v. United States, --- U.S. ----, 104 S.Ct. 275, 78 L.Ed.2d 256 (1983).

Probable cause to arrest exists "where the facts and circumstances within the collective knowledge of the law enforcement officials, of which they had reasonably trustworthy information, are sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed." Id. United States v Perez, 526 F.2d 859 (5th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976). 7 In this case, law enforcement officials had probable cause prior to the raid to believe that certain individuals at the service station were involved in the distribution of methaqualone. The CI, after leaving with Diaz and Pantoja, had returned from the service station with three tablets. At that point, circumstances strongly indicated that at least Diaz and Pantoja were holding drugs at the station to sell. While executing the raid and arresting Diaz and Pantoja, officers observed Nunez and Pal-Sali standing inside the service station office. As Agent Velazco approached, Nunez fled from the office through a side door into the service bay. At that point, given Nunez's presence at the station and his flight, officers had probable cause to believe that he was in some way involved in the drug transaction. Moreover, any delay in apprehending the suspect conceivably could have increased the danger to officers on the station premises and allowed destruction of evidence. Exigent circumstances justified the officer's warrantless entry of the station building to pursue Nunez. See United States v. Santana, 427 U.S. 38, 44, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300 (1976) (pursuit of fleeing suspect); Blasco, 702 F.2d at 1326 (danger to officers justified warrantless, exploratory search of a residence). Once inside the station building, the officers could then lawfully seize the methaqualone tablets which lay in the officer's "plain view." See Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Coolidge v. New Hampshire, 403...

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