U.S. v. Rivera

• Decision Date: 20 July 1987
• Docket Number: 86-2124,Nos. 86-2086,86-2100,s. 86-2086
• Citation: 825 F.2d 152
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas RIVERA, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 152

825 F.2d 152

UNITED STATES of America, Plaintiff-Appellee, v. Douglas RIVERA, et al., Defendants-Appellants.

Nos. 86-2086, 86-2100, 86-2124.

United States Court of Appeals Seventh Circuit.

Argued April 13, 1987.

Decided July 20, 1987.

John M. Cutrone, Chicago, Ill., for defendants-appellants.

Vilija A. Bilaisis, Asst. U.S. Atty., (Anton Valukas, U.S. Atty.) U.S. Atty's Office, Chicago, Ill., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.

BAUER, Chief Judge.

Douglas Rivera, Betty Martinez de Colon and Arturo Robles were convicted individually of possessing cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846, and of conspiring to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841. Rivera received a seven year sentence to be followed by a special parole term of ten years, after conditionally pleading guilty pursuant to FED.R.CRIM.P. 11(a)(2). Rivera reserves his challenges on appeal to the district court's denial of his motion to suppress evidence and his motion to sever his case from Colon's. Colon was found guilty after a jury trial and sentenced to seven years in prison. She challenges the denial of the motion to suppress as well as the sufficiency of the evidence used to convict her of conspiracy. Robles pled guilty and was sentenced to fifteen months in prison to be followed by a six year special parole term. Robles challenges the imposition of the special parole term. The appeals have been consolidated for disposition. We affirm the convictions and Robles' sentence for the reasons which follow.

I.

Pursuant to an ongoing investigation, agents from the Drug Enforcement Agency ("DEA") tailed defendants Douglas Rivera and Betty Martinez de Colon as they drove around the northwest side of Chicago on September 25 and 26, 1985. While under surveillance, Rivera and Colon behaved in a manner to arouse suspicion of narcotics activity. They took indirect routes, switched rented cars on occasion and stopped several times to make and receive phone calls. Rivera and Colon eventually drove a rented car to the O'Hare Plaza Hotel. Rivera went to the parking lot of the hotel and opened the trunk of a Monte Carlo with a key in his possession. He placed a black briefcase in the trunk, removed a tan plastic bag and proceeded to Room 422 with the bag. Soon thereafter, Rivera returned to the Monte Carlo with the bag. Meanwhile, Colon made calls from a bank of telephones in the lobby and left in the rented car. She picked up Rivera in the parking lot. Rivera then dropped Colon off at a restaurant and picked up defendant Arturo Robles on a street corner. Robles rode with Rivera for a short time and then left, entering his own car, with the tan plastic bag.

Two agents followed Robles and a chase ensued, during which Robles discarded the tan bag. Robles was arrested; agents retrieved the bag and found it contained cocaine. Rivera and Colon were arrested in the rented car shortly thereafter. The rented car was found to contain approximately $12,000. A search of Rivera incident to arrest revealed a car key and a hotel room key. The car key was believed to fit the Monte Carlo in the parking lot of the O'Hare Plaza Hotel and the hotel key appeared to be from Room 422 of the O'Hare Plaza Hotel. When agents returned to the hotel room with the key, they saw a "Do Not Disturb" sign on the door and heard television or radio noises from within. The agents feared another confederate might be inside the room and entered it without a warrant. Once inside, they found three suitcases, which they seized. The room was otherwise empty and unoccupied.

After ascertaining that the key found on Rivera fit the Monte Carlo, agents seized the car and drove it to the DEA garage. At the garage, the car was exposed to a drug-sniffing dog, which "alerted" to the trunk area of the car. The agents then searched the car without a warrant and found approximately three kilograms of cocaine in the trunk. A drug-sniffing dog also "alerted" to the seized suitcases. The agents obtained a warrant for the suitcases and recovered a large amount of money along with packaging material similar to that used to package the recovered cocaine. Three days later, agents conducted a more thorough search of the Monte Carlo, retrieving nine additional packages of cocaine.

Initially, the district court granted the motion to suppress, finding that the entry into the hotel room and the subsequent seizure of the luggage was unlawful. The court reserved ruling on the legality of the searches of the Monte Carlo. After hearing further testimony, the court denied the motion in its entirety. The court also denied Rivera's motion for severance, which was based on his allegation that if his case was severed from Colon's, she would testify in conformity with a previous statement to police: that the cocaine was hers, that Rivera had nothing to do with it, and that she was selling the cocaine to support her family since she had been abandoned by her husband. Rivera entered a conditional guilty plea, subject to this appeal of the adverse determinations of the two pretrial motions.

Defendants Rivera and Colon both object to the warrantless entry into the hotel room and the subsequent search and seizure of the suitcases. ¹ Rivera also challenges the warrantless search and seizure of the Monte Carlo. Aside from her Fourth Amendment claim, Colon claims that the evidence was insufficient to convict her of conspiracy. In addition, Robles challenges the sentence he received.

FOURTH AMENDMENT CLAIMS

A. The Hotel Room

The Fourth Amendment prohibits warrantless and nonconsensual entry into a person's home. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). A hotel room, as a temporary abode, is similarly protected from arbitrary searches and seizures. See Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966); United States v. Diaz, 814 F.2d 454, 458 (7th Cir.1987). Searches and seizures undertaken without warrants are presumed arbitrary and unreasonable, subject "to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One such exception is the exigent circumstances doctrine which recognizes that "warrantless entry by criminal law enforcement officials may be legal when there is a compelling need for official action and no time to secure a warrant." Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978); United States v. Dowell, 724 F.2d 599 (7th Cir.), cert denied, 466 U.S. 906, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984). The doctrine applies where agents fear imminent destruction of the evidence. Ker v. California, 374 U.S. 23, 39-40, 83 S.Ct. 1623, 1632-33, 10 L.Ed.2d 726 (1963).

Since the doctrine is an exception to the general warrant requirement, the government had the burden of showing that the warrantless entry into the hotel room fits within the exception. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1970). The government must show more than a subjective fear of imminent destruction of evidence; the fear must be objectively reasonable. United States v. Dowell, 724 F.2d at 602. In determining whether the agents reasonably feared imminent destruction of the evidence, the appropriate inquiry is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced agent to believe that evidence might be destroyed before a warrant could be secured. United States v. Miller, 800 F.2d 129, 133 (7th Cir.1986). In other words, "were the police unreasonable in not getting a warrant in the circumstances that confronted them?" Llaguno v. Mingey, 763 F.2d 1560, 1564 (7th Cir.1985) (en banc).

When the agents approached the hotel room they saw a "Do Not Disturb" sign on the door and heard sounds of a television or radio from within. Since the officers had information that large quantities of cocaine were involved and believed that the hotel room near the airport was the central locus of the transactions, the district court found that the officers had probable cause to believe that there was additional contraband in the room. The district court also found that the officers reasonably believed that the hotel room was occupied by other persons who might destroy the contraband.

Appellants' objections to the behavior of the agents rest largely on hindsight. Rivera argues that since all known defendants were then in custody, it was unreasonable to believe that the room was occupied. But the agents could not know, to a certainty, the final number of those involved. The room had not been under surveillance prior to the time the agents approached and heard sounds from within. Given the information the agents then possessed, it was not unreasonable to fear that a fourth or fifth conspirator might be inside the room, ready to destroy the evidence if his or her compatriots did not return as planned.

Rivera urges that the agents could have procured a telephonic warrant, pursuant to FED.R.CRIM.P. 41(c) However, once the agents believed that another conspirator might be inside the room with the contraband they reasonably feared imminent destruction of the evidence. Once the exigent circumstances arose, it is impossible to say whether the agents had five minutes or five hours. They had no way of knowing when destruction of the evidence might occur. We therefore agree that the facts available to the agents at the time established exigent circumstances sufficient to allow the warrantless entry into the hotel room.

B. The Search and Seizure of the Suitcases

Once a room is legally entered under exigent circumstances, a subsequent search or seizure of items in the room...