U.S. v. Ramirez, 84-5371

• Decision Date: 10 September 1985
• Docket Number: No. 84-5371,84-5371
• Citation: 770 F.2d 1458
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Jesse RAMIREZ, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1458

770 F.2d 1458

UNITED STATES of America, Plaintiff/Appellee, v. Jesse RAMIREZ, Defendant/Appellant.

No. 84-5371.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1985.

Decided Sept. 10, 1985.

David Nimmer, Jeffrey Modisett, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Lori Huff-Dellman, Donald Etra, Sidley & Austin, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before ANDERSON, HUG, and TANG, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Jesse Ramirez was arrested and charged with violating 18 U.S.C. Appendix I Sec. 1202(a)(5), alien in possession of a firearm, and with violating 18 U.S.C. Sec. 111, assaulting a federal officer. His motion to suppress evidence, the handgun, was denied by the district court. Subsequent to that denial, Ramirez entered a conditional plea of guilty of being an alien in possession of a firearm. The other count of the indictment was dropped with the approval of the district court. We find that the district court's denial of Ramirez's motion to suppress the evidence of the handgun was not improper and therefore affirm the decision of the district court.

FACTS

The FBI secured arrest warrants from a federal judge in Florida for the arrests of Julita Nina DeParias and Julio E. DeParias in connection with a kidnapping and murder that had taken place there. This information was transmitted via teletype to other regional field offices of the FBI. In Los Angeles, Special Agent (SA) Gregory Allen Pack was assigned the case. Pack was familiar with the DePariases because Julita had assisted him in rescuing two other kidnapping victims earlier that year.

On September 14, 1984, while acting on the arrest warrants issued in Florida, SA Pack went to see Flor Ochoa, whom he knew to be an acquaintance of the DePariases. When he arrived at the apartment complex where Ochoa lived, he was met by the apartment manager, Margaret Teamer. She identified, by photograph, Julita, Julio, and Hector DeParias. Teamer informed SA Pack that the identified people were going to try to rent an apartment, but that she would not be sure of it until around September 17, 1984. After talking with Teamer, Pack decided not to contact Ochoa because he did not want the DePariases alerted to the fact that the FBI was looking for them.

Although no surveillance of the apartment complex was performed, Pack and other agents did keep in touch with Teamer. On September 24, 1984, Teamer informed Pack that she had seen the DePariases on that day, but she did not know their whereabouts. However, at approximately 9:30 p.m. that same day, SA Pack received a phone call from Teamer at his home. She told him that she had been lying to him all along, that the DePariases occupied apartment 10, and if a rust-colored Lincoln Continental was in a specific parking stall by the apartment complex, the DePariases would be in the apartment.

SA Pack and several other agents arrived at the apartment complex approximately one hour later. The car mentioned by Teamer was in the parking stall. Pack got the key to apartment 10 from Teamer and had his men surround and surveil all the doors and windows of the apartment. Surveillance showed that two men were in the apartment, with the lights on and watching TV.

As Pack began to unlock the door to the apartment, he discovered that the door Not seeing anyone in the hallway, Pack stepped up to the entrance of the living room and saw a figure lying on the floor in a prone position, pointing a gun at him. No shots were fired. Within seconds, both occupants were placed in custody and put under arrest. The man holding the gun was Jesse Ramirez.

chain was in place. At about the same time, another agent told him that the lights in the apartment had gone out, but the TV was still on. Pack kicked open the door and entered with three other agents; the agents announced that they were agents of the FBI after they had entered the apartment.

DISCUSSION

Ramirez complains that the evidence of the handgun should be suppressed because the FBI did not have a valid search warrant which gave them the authority to enter the apartment. We disagree.

It is clear that " '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.' " United States v. Underwood, 717 F.2d 482 (9th Cir.1983) (en banc), cert. denied, --- U.S. ----, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984) (quoting and applying Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), to the Ninth Circuit). Ramirez contends that apartment 10 was actually his apartment and that because the arrest warrant did not name him, the entry into the apartment was in violation of the fourth amendment. The district court found, however, that Ramirez was not the sole inhabitant of the apartment and that the apartment was the residence of the DePariases, for whom the arrest...