U.S. v. Soria

• Decision Date: 14 September 1992
• Docket Number: No. 90-2692,90-2692
• Citation: 965 F.2d 436
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Julio Javier SORIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 436

965 F.2d 436

UNITED STATES of America, Plaintiff-Appellee, v. Julio Javier SORIA, Defendant-Appellant.

No. 90-2692.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 10, 1992.

Decided June 11, 1992.

As Amended June 11, and June 19, 1992.

As Amended on Denial of Rehearing

Sept. 14, 1992.

James L. Santelle, Chris R. Larsen (argued), Asst. U.S. Attys., Milwaukee, Wis., for plaintiff-appellee.

Andrew M. John (argued), Mandell & Ginsberg, Madison, Wis., for defendant-appellant.

Before KANNE, Circuit Judge, WOOD, Jr., Senior Circuit Judge, and SHARP, Chief District Judge. ^*

KANNE, Circuit Judge.

Thomas "Slim" Johnson agreed to cooperate with the police after he was indicted on various drug and tax related offenses. Consistent with the agreement, Johnson pursued a relationship with Julio Soria, who was being investigated for drug activity. Soria introduced Johnson to Sharon Bogan, and Johnson subsequently made several deliveries of cocaine in two- to three-ounce packages to Bogan for Soria. Prior to one of those deliveries, Johnson observed Soria retrieve approximately two ounces of cocaine from his home.

The police searched Bogan's home pursuant to a search warrant and recovered cocaine, drug-related paraphernalia, a handgun and approximately $3,000. Bogan agreed to cooperate with the police, and attempted to contact Soria to purchase cocaine. Although she was unable to reach Soria directly, she contacted Johnson's wife, who in turn contacted Soria to request "two" for Bogan. Soria instructed Mrs. Johnson to deliver a package to Bogan that he would leave in her mailbox. Mrs. Johnson was stopped by the police when she delivered the package to Bogan, and she admitted to receiving the cocaine from Soria.

Based on information that Soria was interested in purchasing a Corvette, Johnson and an undercover police officer met with Soria to discuss the purchase of a white Corvette from the officer. Soria offered $2500 and approximately 10 ounces of cocaine to the officer in exchange for the car. The officer had previously told Soria that he was involved in the sale and distribution of cocaine. The transaction did not take place, however, because Soria became suspicious about the officer's actual identity.

Around that time, Soria told Johnson that he planned to obtain one-half kilogram of cocaine from a man in Chicago in exchange for his automobile. That deal was never consummated. The police subsequently recorded and observed a transaction in which Johnson paid Soria $1,600, in marked bills, which he purportedly owed Soria from a previous drug deal. Johnson told the police about several drug transactions in which Soria was involved, including purchases of large quantities of cocaine from men from Chicago and Miami (totalling seven kilograms) and several smaller deliveries to Sharon Bogan's brother, and stated that on one occasion he observed Soria carrying a handgun. He also told the police that Soria kept the proceeds of his drug transactions in a yellow purse.

The police searched Soria's home pursuant to a search warrant. Approximately $14,000 was recovered from the home, and some of the bills were marked. The majority of the money was found in a yellow purse. A revolver was found in a dresser drawer in the bedroom in which Soria was found at the time of the search. Soria admitted to the police that the money and the gun belonged to him. He also stated that Johnson was his source for cocaine.

Soria was charged in a superseding indictment with conspiracy to possess with the intent to distribute cocaine and possession with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2, and with possessing a firearm as a convicted felon and using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 922(g) and 924(c). Soria filed several pre-trial motions, including motions to suppress statements he made to the police and the evidence seized during the search of his home, to exclude evidence of the nature of his prior felony conviction, and to sever the firearms counts from the other counts. The district court denied the motions.

A jury convicted Soria of the first three offenses, but found him not guilty of the fourth. He was sentenced to two terms of 240 months of imprisonment and one term of 120 months of imprisonment for the crimes, which were to be served concurrently. The district court denied Soria's motions for acquittal and for a new trial. He appeals and we affirm.

I.

Soria argues that the district court erred in refusing to suppress the evidence obtained from the search of his home because the executing officers failed to knock and announce their authority and purpose before entering. We review the denial of a motion to suppress under a clearly erroneous standard. United States v. Somers, 950 F.2d 1279, 1283 (7th Cir.1991); United States v. Barnes, 909 F.2d 1059, 1067 (7th Cir.1990). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. at 1067 (citation omitted). We will accept the district court's findings of fact and determinations of credibility unless we are left with the definite and firm conviction that a mistake has been committed. Somers, 950 F.2d at 1284.

"[F]ederal standards control the admissibility of evidence in a federal prosecution even though the evidence was seized [during the execution of a search warrant] by state officials...." United States v. Singer, 943 F.2d 758, 761 (7th Cir.1991). "[E]vidence seized by state law enforcement officers is admissible in a federal criminal proceeding if it is obtained in a manner consistent with the protections afforded by the United States Constitution and federal law." Id.; United States v. D'Antoni, 874 F.2d 1214, 1218 (7th Cir.1989); United States v. Mealy, 851 F.2d 890, 907 (7th Cir.1988). ¹ The fourth amendment, through the fourteenth amendment, demands that state officials act reasonably in conducting searches. Singer, 943 F.2d at 761; United States v. Andrus, 775 F.2d 825, 844 (7th Cir.1985) (citing Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963)).

Pursuant to 18 U.S.C. § 3109, a federal law enforcement officer is authorized to forcefully enter a private residence "to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant." An officer's failure to knock and announce his presence before entering will be excused if exigent circumstances exist to justify such an entry. Singer, 943 F.2d at 762. "[I]t is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant--subject of course to the general fourth amendment protection 'against unreasonable searches and seizures.' " Id. at 761 (quoting Dalia v. United States, 441 U.S. 238, 257, 99 S.Ct. 1682, 1693, 60 L.Ed.2d 177 (1979)).

Soria's home is a single family house with an unattached garage. The front door leads directly into the living room, and a side-rear door leads into a vestibule between the outside and the kitchen. There is a vestibule door which leads into the kitchen. Two bedrooms are located on the first floor and additional bedrooms are located upstairs. At the time of the search, approximately 6:00 p.m., the curtains in the front bay window were drawn. The executing officers observed movement in the living room through the curtains and noted that a television was turned on in that room. Soria, Enid Baez and her two children were in the home.

After several police officers surrounded the home, a plain-clothes officer knocked on the side door but there was no response. Fifteen to twenty seconds passed before the officer knocked a second time, and again there was no response. There was also no response when the officer knocked a third time fifteen to thirty seconds later. Another officer was then ordered to forcibly push the door open with a sledgehammer. After that door and the inside vestibule door were opened, several officers entered the home through the kitchen while shouting loudly, "Police officers, search warrant!"

Detective James Cesar, who was in charge of the search, testified that the plain-clothes officer knocked on the side door of Soria's home in order to have it opened through a ruse. He stated that the officer was to have presented himself as a salesman to gain peaceable entry and to ensure the safety of the officers. See United States v. De Feis, 530 F.2d 14, 15 (5th Cir.) (entry by ruse or deception not violative of § 3109), cert. denied, 429 U.S. 830, 97 S.Ct. 92, 50 L.Ed.2d 95 (1976); United States v. Raines, 536 F.2d 796, 799-800 (8th Cir.) (same), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976).

Soria concedes that had the warrant been executed as Detective Cesar had planned the entry would have been legal, but argues that no one heard the knocking on the side door. He claims that he was watching television in a first floor bedroom and did not hear the knocking. Ms. Baez testified that she was in the living room at that time with her younger daughter, and that she did not hear the knocking. She stated that she heard the noises made by the sledgehammer, but thought that her older child, who was in the basement, had made the noises. ²

Soria argues that the police should have known that no one inside the house would have heard the knocking on the side door, considering that they had observed movement only in the living room. He notes that the officer's second and third knocks on the side door were no louder than the first, and that no attempt was made to knock on the front door.

In denying Soria's motion to suppress, the...