U.S. v. Schaper

• Decision Date: 16 May 1990
• Docket Number: D,820,Nos. 819,s. 819
• Citation: 903 F.2d 891
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Eduardo SCHAPER, Defendant-Appellant/Cross-Appellee. ockets 89-1405, 89-1441.
• Court: U.S. Court of Appeals — Second Circuit

Page 891

903 F.2d 891

UNITED STATES of America, Appellee/Cross-Appellant, v. Eduardo SCHAPER, Defendant-Appellant/Cross-Appellee.

Nos. 819, 820, Dockets 89-1405, 89-1441.

United States Court of Appeals Second Circuit.

Argued Feb. 12, 1990.

Decided May 16, 1990.

Justin Levin, Canton & Jasper, New York City, for defendant-appellant/cross-appellee.

Henry J. DePippo, Asst. U.S. Atty. for S.D.N.Y., New York City (Joan McPhee, Asst. U.S. Atty., Otto G. Obermaier, U.S. Atty. for S.D.N.Y., New York City, of counsel), for appellee/cross-appellant.

Before CARDAMONE and WINTER, Circuit Judges, and KEENAN, ^* District Judge.

WINTER, Circuit Judge:

Eduardo Schaper appeals from his conviction and sentence after a bench trial before Judge Haight. Schaper claims that evidence seized from his residence should have been suppressed because it was obtained illegally in a warrantless search. Schaper also challenges his sentence, arguing that the district court improperly calculated his base offense level under the Sentencing Guidelines by adding a two-point enhancement for his possession of a firearm. Pursuant to 18 U.S.C. Sec. 3742(b)(1) (1988), the government cross-appeals from Schaper's sentence on the ground that the district court incorrectly applied the Sentencing Guidelines in declining to calculate into Schaper's base offense level quantities of narcotics that he allegedly traded but that were neither seized nor charged in the indictment.

We affirm defendant's conviction and his sentence as to the two-point enhancement. However, we agree with the government that the district court misapplied the Guidelines in calculating the base offense level. The court should have considered whether quantities of narcotics traded by Schaper that were neither seized nor charged in the indictment were part of the same scheme or plan as the offenses leading to Schaper's conviction. Accordingly, we reverse and remand for further proceedings.

BACKGROUND

On November 28, 1988, a government informant contacted Schaper in a recorded phone call and arranged a meeting to purchase cocaine from Schaper. At the meeting, the informant agreed to purchase ten kilograms of cocaine from Schaper later that evening. Law enforcement officers followed Schaper from the meeting to Schaper's residence. Schaper detected the surveillance and proceeded to circle blocks, make frequent U-turns, and stick his head out the window to see who was following him. Finally, Schaper entered his house and phoned the informant to say that he had been followed after their meeting. Schaper further indicated that he did not want to complete the transaction that night and was suspicious that the informant was setting him up. The informant reassured Schaper, who then agreed to complete the transaction the next day. After relating these conversations to the law enforcement agents, the informant ceased cooperating with them, fearing that he had aroused Schaper's suspicions.

The next day, the agents re-established surveillance of Schaper's house. Mrs. Schaper and another woman left the residence at around 12:30 p.m. and returned a half hour later. Around 1:30 p.m., Schaper and a man later identified as his father-in-law left the house and got into the car. Schaper was carrying a white paper shopping bag with handles, which he put in the back seat before they drove away. Using three cars, the agents stopped Schaper's car approximately 200 yards and around a corner from Schaper's house. An agent asked Schaper what was in the bag, which was visible in the back seat. Schaper indicated that it was just garbage and invited the agent to examine it. The agent then did so and found notebooks and torn papers that he believed to be records of narcotics transactions. The agent then read Schaper his Miranda rights and handcuffed him. Schaper's father-in-law also was arrested. The arrests were made on the street while several cars drove by and many passers-by stopped briefly to observe the events.

The arresting agent then contacted an Assistant United States Attorney, who directed the agent to secure Schaper's house before applying for a search warrant. The agents returned to the residence with the arrestees and explained to Schaper's wife that they were going to apply for a search warrant but were first going to make a security sweep of the house. No weapons or contraband were discovered in that sweep. As the agents started to apply for a warrant, Schaper's wife agreed to consent to the search and signed a written consent-to-search form. During the search, Schaper told one of the officers that he had a gun under his bed and five kilograms of cocaine in the garage, indicating to the officer where to find the key to the garage. The agents found a loaded Schaper was charged with one count of conspiring to distribute more than five kilograms of cocaine in violation of 21 U.S.C. Sec. 846 (1988) and one count of possessing with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(A) (1988). Schaper moved to suppress the evidence seized in the search of his house and garage. After a hearing, the district court denied the motion to suppress, holding that the warrantless entry into Schaper's residence was justified by exigent circumstances, that both Schapers subsequently consented to the search, and that discovery of the evidence was inevitable. United States v. Schaper, No. 88-Cr.-916 (CSH) (S.D.N.Y. April 21, 1989) (1989 WESTLAW 46283) (Memorandum Opinion and Order denying suppression motion).

.9mm handgun in the bedroom and ten kilograms of cocaine in the garage.

Schaper waived a jury trial, and on the basis of stipulated facts the district court issued findings of fact and conclusions of law convicting him on both counts of the indictment. Schaper was sentenced on July 28, 1989, to concurrent terms of 208 months' imprisonment on each count followed by concurrent terms of five years' supervised release on each count.

DISCUSSION

A. Suppression of Evidence

We affirm the district court's denial of the suppression motion. First, the district court properly held that exigent circumstances justified the warrantless entry into the Schaper residence. Such a warrantless entry is justified where the agents have a reasonable belief that there are persons inside the residence who might, inter alia, destroy evidence. See United States v. Vasquez, 638 F.2d 507, 531-32 (2d Cir.1980), cert. denied, 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981); see also United States v. Agapito, 620 F.2d 324, 336 n. 18 (2d Cir.) (officers may conduct a security check inside premises after an arrest outside the premises, but "the arresting officers must have (1) a reasonable belief that third persons are inside, and (2) a reasonable belief that the third persons are aware of the arrest outside the premises so that they might destroy evidence, escape or jeopardize the safety of the officers or the public"), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980). The test for determining whether a warrantless entry is justified by exigent circumstances is an objective one, and the agent's belief in the existence of such circumstances must therefore be objectively reasonable. See United States v. Miles, 889 F.2d 382, 383 (2d Cir.1989); United States v. Zabare, 871 F.2d 282, 291 (2d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 161, 107 L.Ed.2d 119 (1989).

In this case, there was ample probable cause to believe that Schaper was trading in cocaine and that evidence of this crime was located in his residence. Schaper's offer to sell cocaine to the informant clearly demonstrated that Schaper was engaged in narcotics transactions. After stopping Schaper shortly after he drove from his house, the agents discovered he was attempting to remove what appeared to be narcotics records from the residence. This provided cause to believe that the house was a base for Schaper's illegal activity and that other evidence might be there.

The agents also had an ample basis for the apprehension that evidence in the house might be destroyed if it were not immediately secured. The agents knew that Schaper had detected their surveillance after meeting with the informant, had expressed suspicion that he had been "set up" by the informant, and was aware that the informant had not yet contacted him to complete the transaction. When the agents arrested Schaper, he had been removing a bag containing the apparent narcotics records that had been torn and partially destroyed. Finally, the agents were reasonably concerned that Schaper's arrest in mid-afternoon on a public street a short distance from his house might be reported by onlookers to persons known to be in the house. The arrest had involved several vehicles, and the stopping of Schaper's car and his subsequent arrest had been observed Second, the district court did not err in finding that the Schapers voluntarily consented to a search of their house and garage after the valid entry by the agents. Voluntariness is a question of fact to be determined from all the circumstances, see Schneckloth v. Bustamonte, 412 U.S. 218, 248-249, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973), and a trial court's determination that a person voluntarily consented to a search must be accepted unless that determination is clearly erroneous, see United States v. Moreno, 897 F.2d 26, 33 (2d Cir.1990); United States v. Arango-Correa, 851 F.2d 54, 57 (2d Cir.1988).

by a number of people in the neighborhood. From their surveillance of the house, the agents knew that at least Mrs. Schaper and another woman were in the house, and the agents reasonably could have believed that the occupants of the house were capable of removing or destroying further evidence. See United States v. Gallo-Roman, 816 F.2d 76, 80 (2d Cir.1987); cf. Zabare, 871 F.2d at 291 (no extrinsic evidence of destruction of evidence necessary where there is ground for...