U.S. v. Santa

• Decision Date: 28 December 2000
• Docket Number: No. 99-12086,99-12086
• Citation: 236 F.3d 662
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Gloria SANTA, a.k.a. Gloria Santa-Betancur, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 662

236 F.3d 662 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee, v. Gloria SANTA, a.k.a. Gloria Santa-Betancur, Defendant-Appellant.

No. 99-12086.

United States Court of Appeals, Eleventh Circuit.

December 28, 2000.

January 10, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Florida.(No. 98-00794-CR-DLG), Donald L. Graham, Judge.

Before TJOFLAT, HILL and POLITZ^* Circuit Judges.

TJOFLAT, Circuit Judge:

I.

A.

In August, 1998, a Confidential Informant ("CI") working with the Drug Enforcement Agency ("DEA") began communicating with Juan Ramirez and his wife, Gloria Santa, about purchasing approximately one kilogram of heroin. Ramirez informed the CI that he expected to receive a kilogram of heroin on or about October 4, 1998, and that they could arrange a sale then. In the meantime, the CI kept in touch with Ramirez and Santa by telephone and by visiting them at their place of employment, Tony's Furniture Store ("the Store") in northwest Miami.

During a series of recorded telephone conversations, the CI arranged to meet Ramirez and Santa at the Store on October 5, 1998, to purchase a "sample" amount of heroin. DEA agents set up surveillance at the Store and equipped the CI with a body wire. Once inside the Store, the CI purchased 1.7 grams of heroin from Ramirez for $100, and the two discussed a possible sale of the entire kilogram. Ramirez told the CI that if the CI found the sample to be acceptable, Ramirez could arrange a larger transaction at Ramirez and Santa's residence in Miami Lakes. The CI stated that he first needed to show the sample to his "people," and that he would be in touch about the larger deal.

The CI placed a phone call to Ramirez later that day and told him that he liked the sample and wanted to make another buy. Ramirez instructed the CI to get in touch with Santa so that she could contact the heroin supplier and make arrangements. As directed, the CI called Santa, explained that he had $5,000 to buy heroin, and asked her to get in touch with the supplier. Santa promised to notify the CI after speaking with the supplier, but the CI did not hear back from her.

The DEA agents continued their surveillance at the Store through Wednesday, October 7. On that day, the CI called Ramirez to find out whether he wanted to proceed with the heroin deal.¹ Ramirez told the CI that the supplier would be at the Store at 12:30p.m., and instructed the CI to call back at 1:00p.m. to find out whether the supplier would agree to make the sale. When the CI called back as instructed, Ramirez told him that the supplier had agreed to go forward with the transaction and that the CI was to be at the Store in one hour with the money.

Although the record is not entirely clear, it appears that the CI showed up to meet Ramirez and the supplier-Gilbert Gallego-at the Store sometime before 4:00p.m. Plans were made during that meeting to complete the drug transaction at Ramirez and Santa's apartment.² Someone (presumably Ramirez) began to give directions to the apartment but was interrupted by Gallego, who suggested that the parties meet back at the Store at 4:00p.m. and then proceed from there to Ramirez and Santa's apartment to complete the deal.

At approximately 4:00p.m., Ramirez, Santa, Gallego, the CI, and an undercover DEA agent posing as the CI's "money man" met at the Store. They confirmed that the transaction would occur at Ramirez and Santa's apartment in Miami Lakes. Gallego would leave the Store alone and bring the heroin to the apartment from an undisclosed location. Ramirez, Santa, and Gallego were led to believe that the undercover agent's role was to guard the purchase money somewhere outside the apartment while the CI went inside to inspect the drugs. If the drugs looked good, the CI would leave the apartment, get the money from the undercover agent, and return to complete the exchange.

The parties left the Store at approximately 4:25, with Ramirez and Santa in the front car leading the way to the apartment. The CI and the undercover agent followed Ramirez and Santa in another car, and Gallego left in his vehicle to retrieve the heroin. While en route, the CI and the undercover agent advised the surveilling agents that the group would complete the heroin transaction at Ramirez and Santa's apartment. The DEA had established surveillance at the apartment earlier in the day because both Ramirez and Santa had indicated during previous conversations with the CI that the transaction would take place there.³

Ramirez, Santa, the CI, and the undercover agent arrived at the apartment at approximately 4:50, and the CI followed Ramirez and Santa inside. The undercover agent apparently "left the area," although the record is unclear about where he went.⁴ The DEA agents had instructed the CI that when he saw the heroin, he was to tell Ramirez and Santa that he was going outside to get the money. As he exited the apartment under that guise, he was to give a prearranged visual signal to the surveilling agents meaning, "I've seen the drugs."

After Ramirez, Santa, and the CI arrived at the apartment, Gallego called Ramirez from the road to let them know that he was stuck in traffic. While waiting for Gallego to arrive, Santa left the apartment briefly to pick up her children, ages two and four, from somewhere in the apartment complex. The CI also left the apartment periodically to check in with the undercover agent. After another call from Gallego, the CI went out to inform the agent that the heroin would soon be at the apartment.

At 6:50, approximately fifteen minutes after hearing from the CI that Gallego was close by, the surveilling agents observed Gallego arrive at the apartment complex. He emerged from his vehicle carrying a white plastic shopping bag. Agents then saw Ramirez exit the apartment, but lost sight of him for a short time. When agents spotted Ramirez again, he was carrying a white plastic bag similar to the one Gallego had been carrying. Ramirez brought the bag into his apartment, according to one of the surveilling agents, "as covertly as possible." The CI followed Ramirez into the apartment, and then emerged three to five minutes later giving the prearranged signal to the DEA agents indicating that he had seen the heroin. Gallego had already left the area in his truck, never having entered the apartment.

Within thirty seconds of seeing the CI's signal, two DEA agents-LeClair and Mokwa-and Detective O'Hara of the Hollywood, Florida Police Department approached Ramirez and Santa's first floor apartment. Mokwa went around to guard the sliding glass doors in the back of the apartment, which opened onto a golf course. Meanwhile, LeClair and O'Hara announced themselves at the front door by yelling "police," and found the door locked when they attempted to open it. LeClair kicked in the front door, and he and O'Hara entered with their guns drawn. Mokwa then returned from the rear of the apartment and entered through the front door.

After entering the apartment, LeClair spotted Ramirez approaching the agents from a hallway. The agents ordered Ramirez onto the floor and handcuffed him, and then made a protective sweep of the apartment to find any other persons who were inside. The agents found Santa in the hall bathroom giving her children a bath. Mokwa told her to wrap them up and bring them into the living room, which she promptly did. Santa was neither placed on the floor nor handcuffed.

Approximately two to three minutes after the forced entry, while the other agents were securing the apartment, Mokwa advised Ramirez of his Miranda rights. LeClair told Ramirez that the agents knew there were drugs in the apartment, and asked "if he would just make things easy and tell [the agents] where the drugs were." The agents' weapons were holstered by this time. Ramirez, still on the floor in handcuffs, told the agents that they could search the apartment, and that the heroin was beneath the sink in the master bathroom.⁵

After finding the heroin precisely where Ramirez said it would be, the agents led Ramirez to a table in his living room/dining room area. They removed his handcuffs and asked him to sign a written consent form written in Spanish.⁶ Essentially, the agents were asking Ramirez to give his written consent to the search that had just taken place. Ramirez read the consent form silently and signed it.⁷ According to the DEA agents' testimony at the suppression hearing, a total of five to ten minutes passed between the initial police entry and Ramirez's signing of the consent form.⁸

Santa was placed under formal arrest after the heroin was found in the bathroom, and Gallego was stopped and arrested by agents who had followed his vehicle from the Miami Lakes apartment. On October 16, 1998, a Southern District of Florida grand jury returned a two-count indictment against Ramirez, Santa, and Gallego pursuant to 21 U.S.C. 846 for conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. 841(a)(1), and, pursuant to 21 U.S.C. 841(a)(1) and 18 U.S.C. 2, for possession with intent to distribute heroin.

B.

Ramirez and Santa filed motions to suppress the heroin seized during the search of the Miami Lakes apartment, alleging that the agents' warrantless entry was unlawful and that the subsequent consent given by Ramirez was invalid.⁹ In response, the Government contended that exigent circumstances-namely, a possibility that Ramirez or Santa would flee or destroy the drugs-supported their warrantless entry and search of the apartment. The Government contended in the alternative that even if the entry were illegal, Ramirez's subsequent verbal and written consent to search was voluntary and therefore valid.

The magistrate judge held a suppression hearing on January 25, 1999, at which Agent LeClair testified that he felt the warrantless police entry was necessary because "[the heroin] could be...