U.S. v. Polanco

• Decision Date: 09 February 2011
• Docket Number: No. 09–2517.,09–2517.
• Citation: 634 F.3d 39
• Parties: UNITED STATES of America, Appellee,v.Stiven F. POLANCO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

634 F.3d 39

UNITED STATES of America, Appellee,

v.Stiven F. POLANCO, Defendant, Appellant.

No. 09–2517.

United States Court of Appeals, First Circuit.

Heard Oct. 6, 2010.Decided Feb. 9, 2011.

Jeffrey B. Ruben, with whom Todd C. Pomerleau and Sarah Unger were on brief, for appellant.Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, Sandra R. Hebert and Milind M. Shah, Assistant United States Attorneys, were on brief, for appellee.Before LYNCH, Chief Judge, SELYA and THOMPSON, Circuit Judges.THOMPSON, Circuit Judge.

A federal grand jury indicted Stiven Polanco on heroin-trafficking and firearm charges. After the district judge denied Polanco's motion to suppress a cache of incriminating evidence found in his car and apartment, a jury convicted him on all counts. His appeal presents three questions: Were the searches legal? Was a DEA agent's testimony about how much heroin an addict could use in a day admissible? ¹ And was the evidence underpinning his conviction for aiding and abetting the distribution of heroin sufficient? We answer “yes” to these questions and affirm Polanco's conviction.

BACKGROUNDFacts

Consistent with the standard protocol, we summarize the key facts in the light most compatible with the verdict. See, e.g., United States v. Troy, 618 F.3d 27, 29 (1st Cir.2010).

In the fall of 2008, a joint task force comprising federal and local law enforcement agents zeroed in on a suspected drug dealer, David Contreras. Posing as a lobsterman from Newport, task force member Seth Godek bought heroin from Contreras four times over a two-month stretch from October through November 2008. Each deal took place at the Providence Place Mall, an upscale shopping center in downtown Providence. December was shaping up to be more of the same. During a recorded phone call on December 2, 2008, Contreras agreed to sell Godek 20 grams of heroin for $1,500. Speaking in code, they said they would do the deal at the Mall on December 3. Phone records show that Contreras and Polanco called each other a total of six times later that day. That was not unusual. Records show they called each other nine times on the day of the December 3 deal, for example.

With Polanco at his side, Contreras came to the Mall as promised. They sat in the food court and waited for Godek. When Godek got there, Contreras told Polanco that he and Godek had to go to a nearby restroom—an area Contreras knew had no Mall security cameras. Once there, Contreras swapped the heroin for the cash. Polanco and Godek then traded nods as Godek walked on by. Contreras headed back to where Polanco was sitting, counting the money. A surveillance camera caught Contreras and Polanco huddled around a table. They ate lunch and then left the Mall in Polanco's red Toyota Camry.

Contreras and Godek talked again on December 9. Godek asked for 100 grams of heroin. He said he would pay $6,500. Contreras said okay, and they agreed to rendezvous at the Mall's food court on December 10. Within minutes of hanging up with Godek, Contreras called Polanco. Records show a total of six calls between the two on December 9. Records also show that Contreras called Polanco early on December 10, right after he had gotten off the phone with Godek.

Agents wanted to arrest Contreras and anyone else tied to the heroin scheme. Contreras and Polanco showed up at the food court on December 10 right on cue. But agents were concerned that arresting the two in a crowded Mall might endanger others, so they changed plans on the fly. Godek called Contreras and convinced him to do the deal at a parking lot in Warwick, Rhode Island. Polanco and Contreras drove to the new locale. Contreras was not happy. “I have the stuff,” he told Godek during one of their many calls. “You better come get it.” Contreras said he was in a red Camry, parked with the lights on.

And so he was, sitting in the passenger seat beside driver Polanco. Agents arrived on the scene and arrested the two on the spot. They found no heroin on either man. Heavy rains came, so agents drove Polanco's Camry to a DEA office. A warrantless search of the car there revealed a hidden compartment inside an armrest that contained 94.1 grams of heroin (just shy of the agreed-on amount) and a loaded handgun. To open the compartment, one had to use an electric motor to release a tension strap so that the armrest would lift up. Needless to say, contraptions like this do not come standard with Camrys.

Polanco told agents that he lived in a basement apartment at 422 Plainfield Street in Providence. His parents owned the building and lived upstairs. Agents then secured a warrant for Polanco's quarters and used the keys he had given them to get in. They hit pay dirt: hidden above the ceiling tiles agents found 12.7 grams of heroin, plastic baggies (perfect for packaging heroin), a digital scale with heroin residue, two coffee grinders (perfect for grinding heroin), eleven rounds of ammunition, and $140 in marked bills that had passed from Godek to Contreras during the December 3 deal (they also came across $860 in unmarked currency).

Proceedings

In short order, a grand jury returned a four-count indictment charging Polanco with conspiring with Contreras to possess and distribute 100 grams or more of heroin (count 1), aiding and abetting Contreras in the December 3 heroin-distribution scheme (count 2), possessing with intent to distribute 100 grams or more of heroin on December 10 (count 3), and possessing a firearm in furtherance of drug-trafficking crimes (count 4). See 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C), 846 and 18 U.S.C. §§ 2, 924(c)(1)(A). Pleading not guilty, Polanco filed a motion to suppress. Calling the warrantless search of his car unconstitutional, Polanco argued that had the agents not illegally rummaged through his auto, they would not have had enough probable cause to get a search warrant for his apartment. So he asked the district judge to suppress everything seized. After an evidentiary hearing, the judge found the car search constitutionally permissible under the auto exception to the Fourth Amendment's warrant requirement, see United States v. Dickerson, 514 F.3d 60, 66 (1st Cir.2008) (permitting “a warrantless search of a car if there is probable cause to believe” that it has “contraband or evidence of a crime”)—which ruined Polanco's fruit-of-the-poisonous-tree argument concerning the apartment search.

The trial lasted two days. A parade of agents discussed the ins and outs of what had happened. One also discussed how many bags of heroin most addicts purchase for personal use. At the end of the prosecution's case, Polanco moved for a judgment of acquittal, which the judge denied. Polanco opted not to present any evidence on his own behalf, and the jury found him guilty of all charges. The judge later sentenced him to 120 months, comprising concurrent sentences of 60 months each on counts 1–3 and a consecutive 60–month sentence on count 4. This appeal followed.

We will disclose additional details as we discuss specific issues.

ANALYSIS

Legal Searches

Polanco insists that the district judge stumbled in denying his suppression motion. We review the judge's ruling de novo, except that we assess his factual findings (which Polanco does not really contest) only for clear error and will affirm his ruling if “ ‘any reasonable view of the evidence supports it.’ ” United States v. Bater, 594 F.3d 51, 55 (1st Cir.2010) (quoting United States v. Mendez-de Jesus, 85 F.3d 1, 2 (1st Cir.1996)).

Polanco protests that the judge failed to see that Arizona v. Gant, –––U.S. ––––, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), signals a rollback of the auto exception. Gant, he says, limits warrantless vehicle searches to situations where an arrestee is unsecured and close enough to threaten officer safety or destroy evidence. And, his argument continues, agents had him in a cell when they combed the car for evidence at a secure location, so the search offended the Fourth Amendment.

This is a dead-end argument. Gant dealt with the search-incident-to-arrest doctrine in the vehicle context. Pre- Gant, officers could conduct a warrantless search of “the passenger compartment of [the arrestee's] automobile” under that doctrine. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Some courts even permitted searches “when ... the handcuffed arrestee ha[d] already left the scene.” Thornton v. United States, 541 U.S. 615, 628, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) (Scalia, J., concurring in the judgment) (collecting cases reading Belton broadly). But Gant clarified that an automobile search may fall within the search-incident-to-arrest doctrine only in two very specific situations: “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” (the officer-safety justification), or “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle’ ” (the evidence-preservation justification). Gant, 129 S.Ct. at 1719 (quoting Thornton, 541 U.S. at 632, 124 S.Ct. 2127 (Scalia, J., concurring in the judgment)). Gant also noted that officers may conduct vehicle searches under other doctrines. Id. at 1721.

Our case does not involve the search-incident-to-arrest exception, however. As the district judge noted, the government had jettisoned any search-incident-to-arrest theory before the suppression hearing. Only the auto exception matters here—an exception that provides that “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” agents can search without a warrant “any area of the vehicle in which the evidence may be found.” Id. (discussing United States v. Ross, 456 U.S. 798, 820–21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). And, critically, Gant did not scrap that exception. See id. That is not just our opinion: every circuit that has...