U.S. v. Samboy

• Decision Date: 29 December 2005
• Docket Number: No. 04-1615.,04-1615.
• Citation: 433 F.3d 154
• Parties: UNITED STATES of America, Appellee, v. Alsenio SAMBOY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

433 F.3d 154

UNITED STATES of America, Appellee, v. Alsenio SAMBOY, Defendant, Appellant.

No. 04-1615.

United States Court of Appeals, First Circuit.

Heard September 15, 2005.

Decided December 29, 2005.

COPYRIGHT MATERIAL OMITTED

Bruce Green, for appellant.

Virginia M. Vander Jagt with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before SELYA and LYNCH, Circuit Judges, RESTANI, Judge.^*

RESTANI, Judge.

Appellant, Alsenio Samboy, was convicted of conspiracy to distribute at least 50 grams of cocaine base and possession with intent to distribute and distribution of at least 50 grams of cocaine base. See 21 U.S.C. §§ 841(a)(1), 846. Samboy moved to exclude evidence resulting from a warrantless search of his dwelling, and a warrantless search of the apartment below his. The district court denied Samboy's motion, and following a jury finding of guilt sentenced him to two concurrent terms of 175 months in prison and five years of supervised release. On appeal, Samboy argues that the district court erred in denying his motion to suppress. He also contends that his sentencing was improper under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because exigent circumstances justified the warrantless entry into Samboy's home, and because the record demonstrates no plain error in his sentence, we affirm the judgment of the court below.

BACKGROUND

On September 14, 2000, Jose Miguel Padin was arrested for conspiring to distribute and distributing cocaine base ("crack"). Padin agreed to cooperate with authorities following his arrest, and identified his supplier of cocaine as the Appellant, Alsenio Samboy. Padin stated that Samboy stored drugs in his apartment at 82 Pleasant Street, Worcester, Massachusetts. Padin also mentioned to the police that the apartment below Samboy's residence was being used as part of Samboy's drug operation.¹

That day, the government proceeded to use this information to set up a "controlled buy." Padin was instructed to contact Samboy via telephone and request 125 grams of crack. Samboy agreed to the sale over the course of several telephone calls. Four of the calls merit particular attention. During the first call, placed at 2:30 P.M., Padin informed Samboy that he had an interested buyer, but the call ended without any agreement by Samboy to actually furnish Padin with narcotics. Samboy stated that he was "afraid of doing it," and that he would "let you [Padin] know later on when you call me back if we can get that or not." At about 4:30 P.M., Padin called Samboy again and confirmed that his buyer was ready. Samboy stated he would "send for that" and requested that Padin call back again in fifteen or twenty minutes. Padin called again at 5:25 P.M., stating that he was about to leave for an auto-parts store where he would wait for delivery. Samboy refused to send his courier to meet Padin until he was certain Padin had arrived, and instructed Padin to call once he arrived at his destination. Finally, at 5:32 P.M., Padin called Samboy after arriving at the arranged location and received confirmation that Samboy's courier, Claudin Mar Dellossantos (a.k.a."Marcos"), was leaving.

During the course of these calls, police officers positioned themselves around Samboy's apartment complex. Prior to the 5:32 call, officers witnessed Dellossantos leave 82 Pleasant Street, drive away, and return a few minutes later. After the 5:32 call, officers again observed Dellossantos leave Samboy's building. They followed him to his meeting place with Padin, arrested him, and recovered 125 grams of crack and a set of keys to Samboy's apartment. After Dellossantos's arrest, several agents proceeded to Samboy's apartment on the fourth floor, while one agent went to obtain a search warrant.

The police arrived at Samboy's apartment at approximately 6:00 that evening to arrest him. Agents knocked and announced themselves when they arrived. When they heard no response, they used the keys found on Dellossantos to open Samboy's door and enter the apartment. When they entered, the police found Samboy on a sofa with his cellular phone. They immediately put him under arrest and conducted a search of Samboy and a "protective sweep" of the apartment incident to that arrest. They found $440 in cash and 13.4 grams of cocaine in a bulge in Samboy's pants pockets. Only after arresting Samboy and securing the apartment did the officers obtain a warrant to complete the search of the third and fourth floors.

Officers also gave Samboy a printed Miranda warning, written in Spanish, Samboy's native language, and informed him in Spanish that he was under no obligation to sign the form, and that he could make such alternations to the form as he saw fit. Samboy signed the form, which gave the officers written permission to conduct a full search of Samboy's residence. Despite this, the police waited until a warrant arrived at approximately 8:07 P.M. to conduct a full search.

Between the time of Samboy's arrest and the arrival of the search warrant, the police conducted an investigation of the common areas of the apartment building, during which they found a key to the apartment on the third floor of the building. The officers knocked on the door, announced themselves, and then entered with the key after they received no response. Crack was immediately found lying on a table, but the police refrained from completing their search until the search warrants arrived. Afterwards, the police conducted a full investigation of the apartments on the third and fourth floors. The police found $3,600 in cash in the fourth-floor apartment. The police also discovered a variety of drugs and drug paraphernalia in the third-floor apartment, including 50.9 grams of crack, 633.9 grams of powder cocaine, 158.8 grams of heroin, scales, cutting agents, and a pan with crack residue.

On September 24, 2001, Samboy filed a motion to suppress the evidence collected as a result of the warrantless search of his apartment. The motion was denied without prejudice on January 29, 2002. On February 13, 2003, Samboy filed a motion to reconsider the court's 2002 ruling. This motion requested that the court suppress evidence related to the 13.4 grams of cocaine and $440 found on Samboy's person, any evidence obtained from the search of the third and fourth floor apartments, and statements of admission by him resulting from his arrest. The motion was denied on August 18, 2003, and evidence found in the third and fourth floor apartments was presented to the jury.

DISCUSSION

I.

The district court's conclusions of fact are reviewed for clear error, but we afford plenary review to the district court's ultimate conclusion regarding exigent circumstances. United States v. Curzi, 867 F.2d 36, 42 (1st Cir.1989).

It is a well-established principle of Fourth Amendment law that warrantless searches inside a home are presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Even with probable cause to believe that evidence of a crime will be found within a private dwelling, the constitutional protections afforded to an individual's privacy interest in his own home outweighs the government's interest in crime prevention. Id. at 588-89, 100 S.Ct. 1371.

Nevertheless, a warrantless entry into a person's dwelling may be permitted if "exigent circumstances" arise. The government bears the burden of proving exigent circumstances. United States v. Baldacchino, 762 F.2d 170, 176 (1st Cir.1985). To show exigent circumstances, the police must reasonably believe that "there is such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant." Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st Cir.1999) (quoting United States v. Almonte, 952 F.2d 20, 22 (1st Cir.1991)). Proof of exigent circumstances "should be supported by particularized, case-specific facts, not simply generalized suppositions about the behavior of a particular class of criminal suspects." United States v. Hidalgo, 747 F.Supp. 818, 828 (D.Mass.1990). We have recognized a number of situations giving rise to exigent circumstances, including when delay would risk the destruction of evidence. See United States v. Wihbey, 75 F.3d 761, 768 (1st Cir.1996); see also United States v. Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir.1988) (finding exigent circumstances "when there is an urgent need to prevent evidence from being lost or destroyed," particularly in drug cases where "`narcotics can be easily and quickly destroyed while a search is progressing'") (quoting United States v. Socey, 846 F.2d 1439, 1444-45 (D.C.Cir.1988)). Officers are justified in relying on this exception only if they show an objectively reasonable basis for concluding that the loss or destruction of evidence is likely to occur. Wihbey, 75 F.3d at 768.

At the time the police entered Samboy's apartment, the police knew that Samboy was present, that he had recently sent Dellossantos to deliver drugs, and that Dellossantos had been arrested and therefore had not returned or contacted Samboy. The district court thus arrived at the conclusion that, when the police received no response after knocking and announcing their presence, there arose a "reasonable belief that Samboy was alerted to their presence and might try to destroy evidence in the apartment. Consequently, there were sufficient exigent circumstances to justify entry into the fourth floor apartment without obtaining a warrant...."

We see no clear error in the district court's factual findings. As a matter of law, we agree with the district court that these facts gave rise to a reasonable belief that Samboy probably would have realized the police were closing in and begun disposing of evidence had the police waited to obtain a search warrant at the time of Dellossantos's arrest. Courts have found exigent circumstances in similar cases where a...