U.S. v. Restrepo, 91-6017
| Decision Date | 21 July 1992 |
| Docket Number | No. 91-6017,91-6017 |
| Citation | 966 F.2d 964 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Cesar Augusto RESTREPO and Luis Pulido, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James L. Turner, Paula Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for plaintiff-appellant.
Kent A. Schaffer, Houston, Tex., for Restrepo.
Mike DeGeurin, Houston, Tex., for Pulido.
Appeal from the United States District Court for the Southern District of Texas.
Before JOHNSON, GARWOOD, and WIENER, Circuit Judges.
This suppression of evidence case, implicating the independent source doctrine, arises from the warrantless "security sweep" of the residence of Defendant-Appellee Luis Pulido and the subsequent search of that same residence pursuant to warrant. Plaintiff-Appellant United States appeals the district court's decision to exclude from Pulido's trial all evidence from the second search as tainted by the initial, illegal sweep. The government insists that the proper approach is to excise from the warrant affidavit those facts that were gleaned from the illegal search, and then to consider whether the affidavit's remaining information is sufficient to constitute probable cause. Agreeing with the government that this is the correct methodology, we determine as a matter of law that the warrant affidavit, purged of information gained through the initial search, nevertheless contains sufficient remaining facts to constitute probable cause for the issuance of the search warrant. Additionally, however, we conclude that Murray v. U.S., 1 requires the district court to determine--independent of our determination that the expurgated warrant affidavit provided probable cause for the issuance of the warrant by the magistrate judge--whether the illegal search affected or motivated the officers' decision to procure the search warrant. Because the district court did not undertake this required analysis, we remand to that court for the appropriate findings of fact and conclusions of law. Lastly, as to Defendant-Appellee Cesar Augusto Restrepo, we ask the district court to consider again its decision to exclude under Federal Rule of Evidence 403 evidence from the search of Pulido's residence.
On July 2, 1991, Customs Officer John Wooley received a confidential tip that narcotics trafficking was being conducted at a residence at 8996 Imogene, Houston, Texas (Imogene). Later that day, Wooley and other officers established surveillance on Imogene. A resident of the neighborhood, who somehow perceived that surveillance was being conducted, told one of the participating officers that many different cars arrived at Imogene, pulled into the garage, and then departed--a pattern, the government informs us, typical of drug trafficking.
Wooley obtained information from Houston Light & Power (HL & P) that electric service had been established at Imogene on January 14, 1991, were listed to Luz Irene Pina (Pina), and named Sally Flores (Flores) as a reference. Wooley discovered that Pina had also established electric service at a residence at 7254 Regency Square Court, Houston (Regency), on June 14, 1991. Flores was listed as a reference at Regency.
On the morning of July 3, 1991, officers established surveillance on Regency, and resumed it on Imogene. At about 10:20 a.m., officers watched as Restrepo arrived at Regency in a blue Toyota and picked up Pulido. Officers followed the blue Toyota to a strip mall where they observed Pulido making and receiving calls on a public telephone. Wooley believed that Pulido was making calls to digital pagers and receiving responding calls from the possessors of the pagers, also a pattern of drug trafficking, according to the government.
Restrepo left with Pulido after about eighteen minutes. The officers followed them to another strip mall, at which Pulido once again made and received calls at a public telephone. On this occasion, Pulido was observed with a large wallet and black ledger book in which he made notations. Restrepo and Pulido departed after about sixteen minutes.
Officers next followed the pair to a residence at 13901 Hollowgreen, Houston (Hollowgreen). After remaining inside Hollowgreen for a short time, Pulido and Restrepo departed at about 11:30 a.m., once again in the blue Toyota. Wooley reports that Restrepo drove the blue Toyota below the speed limit after leaving Hollowgreen, perhaps, speculates the government, in an attempt to expose surveillance. At this time, officers observed Pulido using a cellular telephone while riding in the car with Restrepo.
Officers followed Restrepo and Pulido to a Home Depot store. At this location, Pulido was once again observed making calls at a pay telephone. Restrepo, in the meantime, drove away in the blue Toyota, apparently to rent video tapes. Shortly after 12:30 p.m., he returned to the Home Depot store and picked up Pulido. Officers then followed the blue Toyota back to Regency, where Pulido was dropped off. From there the officers followed Restrepo in the blue Toyota, terminating their surveillance on Regency.
Restrepo, shadowed by the surveillance team, went to a Dunkin' Donut shop. Two officers entered, informed Restrepo that they were conducting an investigation, and asked Restrepo if he would speak with them outside. Restrepo agreed. When officers asked where he lived, Restrepo responded that he lived in Queens, New York, but could not remember the exact address. Restrepo also stated that the blue Toyota had been loaned to him when he arrived in Houston, but when asked by whom, he could not recall.
Agent Wooley asked Restrepo about his connection with the man at Regency. Restrepo responded that he did not know him. When Restrepo was asked the name of the man at Regency, he responded "Enrique"; later, however, Restrepo stated that the man at Regency is named "Pedro." Restrepo told the officers that he and the man from Regency went to the Home Depot store and no other locations. When officers told Restrepo that he and the other man (who they later learned was Pulido) had been observed at Hollowgreen, Restrepo stated that he did, in fact, go to Hollowgreen.
Wooley then asked Restrepo for permission to search the blue Toyota. After some initial reluctance, Restrepo consented. The officers' search produced the black ledger, previously seen with Pulido, and the wallet that contained $688.00 in small denominations. Entries in the ledger, Wooley reports, are consistent with narcotics transactions. A drug-sniffing dog "alerted" to the wallet, indicating, the government tells us, the odor of narcotics. Restrepo was arrested and taken to jail.
The officers thereupon returned to Regency "to interview Pulido." At that point, there had been a break of about fifteen minutes in the surveillance on Regency, the time it took the officers to follow, interrogate, and arrest Restrepo. A woman, later identified as Mayra Cata Garcia, answered the officers' knock. She was told by the officers that they had information that narcotics were being dealt from her residence. Garcia responded that she and her children were the only persons in the residence at that time. When asked, Garcia refused to permit the officers to search the residence, stating that she had arrived only six days earlier and was merely visiting.
Despite Garcia's unambiguous refusal to allow the search, the officers entered and searched, justifying their warrantless, consentless search as a "security sweep." Pulido was located upstairs, "hiding" in the bathroom of the master bedroom. According to the government, Pulido invited the officers to search the house at that time, but Agent Wooley declined. But according to Pulido, he did not consent to search. In any event, Pulido, Garcia, and the two children were detained in the living room for four hours while Wooley sought and obtained a search warrant. The officers did not consider that Pulido was under arrest during that period.
Immediately after leaving Regency, Wooley prepared an affidavit to support his application for warrants to search Regency, Hollowgreen, and Imogene. Wooley's affidavit for the Regency warrant contained the following information: a description of his (Wooley's) experience with narcotics investigations; the confidential informant's tip about narcotics trafficking at Imogene; the neighbor's information about comings and goings at Imogene; the HL & P information linking Imogene (the suspected stash house) and Regency; the surveillance team's observations of Restrepo and Pulido; evidence seized from the blue Toyota; and information acquired as a result of the "security sweep" of Regency.
The portion of Wooley's affidavit containing information acquired as a result of the "security sweep" states At 1:45 p.m., Agents went to 7254 Regency Square Court to talk with the occupants. At that address a Latin female answered the door. The Latin female identified herself as Mira [sic]. HPF Officer Garcia told Mira that he had developed information that narcotics trafficking was being conducted from the residence. Mira stated that she and her two children were the only persons at the residence. Officer Garcia asked Mira if she would consent to a search of the residence. Mira stated that she would not. Agents then conducted a security sweep of the residence to secure it until a search warrant could be obtained. In the upstairs master bedroom bath, Special Agent Wooley found Narvaez del Rio hiding.
All occupants of the residence were moved to the living room area to ensure officer safety. Before leaving the residence to write the affidavit for the search warrant, Special Agent Wooley asked Narvaez del Rio his name. He answered Luis Pulido. 2
Restrepo and Pulido were indicted for conspiracy to distribute cocaine and for aiding and abetting one another in that conspiracy.
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