U.S. v. Perez

• Decision Date: 04 March 1983
• Docket Number: Nos. 82-1196,82-1197,s. 82-1196
• Citation: 700 F.2d 1232
• Parties: 13 Fed. R. Evid. Serv. 228 UNITED STATES of America, Appellee, v. Ignacio PEREZ, Appellant. UNITED STATES of America, Appellee, v. Luis QUINTERO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1232

700 F.2d 1232

13 Fed. R. Evid. Serv. 228

UNITED STATES of America, Appellee, v. Ignacio PEREZ, Appellant.

UNITED STATES of America, Appellee, v. Luis QUINTERO, Appellant.

Nos. 82-1196, 82-1197.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 14, 1982.

Decided March 4, 1983.

Martin, Bahn & Cervantes, James M. Martin, John Malec, St. Louis, Mo., for appellants.

Thomas E. Dittmeier, U.S. Atty., James E. Crowe, Jr., Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before BRIGHT and McMILLIAN, Circuit Judges, and HARRIS, Senior District Judge. ^*

BRIGHT, Circuit Judge.

Ignacio Perez and Luis Quintero appeal their jury convictions for drug-related offenses. The jury convicted Perez of conspiracy to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1976), and of two counts of illegally distributing cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1976). The jury convicted Quintero of conspiracy to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1976), illegally distributing cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1976), and travelling in interstate commerce to promote the distribution of cocaine, in violation of 18 U.S.C. Sec. 1952(a)(3) (1976). For the reasons outlined below, we affirm in part, reverse in part, and remand to the district court for a determination whether the illegal entry into the Perez home tainted certain evidence later seized pursuant to a search warrant.

I. Background.

Perez is a Venezuelan national who came to the United States several years ago to pursue advanced studies in civil engineering. In the fall of 1980, Perez met Marshall Jainchill, an owner of a delicatessen in downtown St. Louis. They became friends and purportedly used cocaine at their social gatherings. At one of these parties during the fall of 1980, Perez introduced Jainchill to Luis Quintero, whom Perez described as a friend from Venezuela. In that meeting, Perez, interpreting for Quintero, told Jainchill that Quintero travelled regularly to this country and brought a pound of cocaine each time. Perez stated that Quintero either carried the cocaine in a special suitcase or would travel with a woman who would body carry it. Perez told Jainchill that "there was money to be made" by selling cocaine.

In the ensuing months, Jainchill and Perez continued their association on essentially the same social basis. In mid-June 1981, Perez advised Jainchill that Quintero was coming to St. Louis. On the evening of June 16, 1981, Jainchill went to the Perez house and obtained one ounce of cocaine from Perez in repayment of a $1,500 loan made by Jainchill to Perez. Earlier that evening, Quintero had arrived in St. Louis with a female companion, Grecia Banados-Zavelata (hereinafter referred to as Banados). Although Quintero and Banados were at the Perez house during Jainchill's visit, Jainchill did not meet them at that time.

The next morning, at Jainchill's apartment, a government informant introduced Jainchill to an undercover drug agent, Detective Peter Gober of the St. Louis Metropolitan Police Department. Jainchill sold the one ounce of cocaine previously received from Perez to Detective Gober for $2,300. After buying the cocaine, Detective Gober questioned Jainchill about a larger purchase. Jainchill told Detective Gober that his source was a Venezuelan living in St. Louis whose friend brought about one pound of cocaine into this country each month from Venezuela. Detective Gober and Jainchill discussed larger purchases several times in the next few weeks, but had no contact for one month while Jainchill vacationed in Canada and the eastern United States.

On August 18, Perez told Jainchill that Quintero was to arrive in St. Louis that night, and that he could sell Jainchill two ounces of cocaine. They agreed to meet at St. John's Mercy Hospital in suburban St. Louis in the early evening to see Perez' new baby. Jainchill met Perez in the hospital room of Perez' wife at 6:30 p.m. At that meeting, Perez told Jainchill that Quintero was delayed but that Jainchill could buy three ounces of cocaine for $6,300. Jainchill telephoned Detective Gober from the hospital lobby and advised Gober that Quintero would not be in town until the next evening. Jainchill further agreed to sell Gober three ounces of cocaine for $7,100.

Quintero and Banados flew together from Caracus, Venezuela, to New York City on August 19, arriving in New York at 2:00 p.m. At that point, Perez informed Jainchill that Quintero was on his way to St. Louis. Jainchill conveyed this information by telephone to Detective Gober and told Gober that he would have the cocaine by 10:00 p.m. Later that day, Quintero and Banados flew from New York to St. Louis, arriving in St. Louis at 10:10 p.m. At about 10:15 p.m., Perez drove to the airport, picked up Quintero and Banados, and drove them back to his house. They arrived at the Perez home about 10:45 p.m. At approximately 11:00 p.m., Jainchill called Perez. Perez asked Jainchill if he wanted to "play racquetball." Jainchill took this as an indication that the cocaine was available. At 11:05 p.m., Jainchill telephoned Detective Gober, asked him if he wanted to play racquetball, told Gober he had to "pick up [his] racquet," and advised Gober to meet him at Jainchill's apartment at 12:30 a.m. Jainchill then proceeded from his apartment to the Perez house, where Jainchill arrived at 11:30 p.m. Once inside the house, Jainchill met with Perez and Quintero. Some ten minutes after Jainchill's arrival, a light brown Oldsmobile Cutlass arrived at the Perez house. The driver, who was subsequently identified as Thomas Groll, went into the Perez house.

Jainchill left the Perez residence at 11:50 p.m. and arrived at his apartment at 12:20 a.m. on August 20. There Jainchill met with Detective Gober and offered him the two baggies of cocaine. Gober "flashed" the "buy money" and placed Jainchill under arrest. Jainchill immediately cooperated with the agents. He told them that he had just bought the three ounces from Perez and Quintero. The agents questioned him about the brown Oldsmobile. He told them "Tom" was there to buy "ten ounces." Detective Hegger telephoned this information to the surveillance officers outside the Perez house. Shortly thereafter, Groll drove away from the Perez house in the brown Oldsmobile. The police arrested Groll a short distance from the house.

At about 1:00 a.m. and within minutes after Groll's arrest, Perez and Quintero left the Perez house in Perez' car. Police arrested Perez and Quintero about one-half mile from the Perez house.

Following the arrest of Perez and Quintero, police detectives returned to the Perez house. Upon entering the house, the agents swept through its rooms. They discovered Banados sleeping in a guest room, and took her into custody. Two agents remained in the house to secure the premises.

The police obtained a search warrant for the house some eleven hours later (at about noon) and executed the warrant at 2:30 p.m. that same day. Thus, agents remained in the house for thirteen and one-half hours until the house was searched pursuant to a search warrant. The execution of the warrant at the house revealed the following evidence:

1. A white purse on the night table next to Banados' bed containing a yellow "Taylor Publishing Company" envelope in which $21,000 in cash was found. It was later determined that fifteen of the $100 bills found in that purse were used by Detective Gober as "buy money" in his purchase of one ounce of cocaine from Jainchill on June 17;

2. A brown leather bag found on the bed in the master bedroom containing airplane tickets and passports in the names of Banados and Quintero. The tickets reflected their trip from Caracas to New York to St. Louis on August 19;

3. A nylon suitcase in the closet of the master bedroom containing a triple-beamed balance scale and parts to a Deering grinder;

4. Drug paraphernalia in the living room, including a "snorting" tube, a small cutting mirror and a Deering grinder.

After a grand jury returned indictments against Perez and Quintero, both defendants moved to suppress the evidence seized from the Perez house pursuant to the search warrant. The district court denied the motions. On January 29, 1982, the court entered judgments on the guilty verdicts, and sentenced Perez to an aggregate of seven years' imprisonment and Quintero to an aggregate of eight years' imprisonment. Both Perez' and Quintero's terms of imprisonment are to be followed by a special three-year parole term. These appeals followed.

II. Discussion.

A. The Search of the Perez Home.

Initially, the Government attacks the standing of Perez and Quintero to contest the admission of certain items of evidence the district court failed to suppress. The Government asserts that Quintero is not entitled to an expectation of privacy in every corner of the Perez home. For example, the Government contends that Quintero was not entitled to an expectation of privacy in those items claimed by Perez. ¹ Moreover, the Government argues that neither Perez nor Quintero can assert a legitimate expectation of privacy in those articles belonging to Banados. ² We reject the Government's argument on this issue.

The touchstone of a standing requirement to assert a fourth amendment challenge is whether the individual had a legitimate expectation of privacy in the area searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980). The Rakas decision indicates that the Supreme Court would now deny standing to a "casual visitor" to a house that is searched if the visitor has never been to a room searched, or was in the room only one minute before the search began. Rakas v. Illinois, supra, 439 U.S. at 142, 99 S.Ct. at 430.

In the case at bar, however, the evidence indicates that Quintero and...