U.S. v. Tarazon

• Citation: 989 F.2d 1045
• Decision Date: 05 February 1993
• Docket Number: No. 92-10204,92-10204
• Parties: 38 Fed. R. Evid. Serv. 1138 UNITED STATES of America, Plaintiff-Appellee, v. Ramon P. TARAZON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1045

989 F.2d 1045

38 Fed. R. Evid. Serv. 1138

UNITED STATES of America, Plaintiff-Appellee, v. Ramon P. TARAZON, Defendant-Appellant.

No. 92-10204.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 5, 1993. ^*

Decided March 17, 1993.

Sandra Lynn Slaton, Paradise Valley, AZ, for defendant-appellant.

Vincent Q. Kirby, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: FARRIS, POOLE, and WIGGINS, Circuit Judges.

POOLE, Circuit Judge:

Appellant Ramon P. Tarazon appeals his conviction following jury trial for possession of a narcotic substance with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). Tarazon argues that: (1) the district court erred in denying his motion to suppress, (2) the prosecutor made an improper reference to his not testifying at trial, and (3) the district court erred in admitting a pistol in evidence. We reject these arguments and affirm.

I.

On August 28, 1991, officers of the Drug Enforcement Administration (DEA), working in conjunction with the Bureau of Alcohol, Tobacco and Firearms (ATF), obtained a federal search warrant for a location in Phoenix, Arizona. During the execution of this warrant, the target of the search warrant agreed to cooperate with the law enforcement officials and provided them with the whereabouts of a second individual, later identified as Ken White, a cocaine dealer.

Based on the target's information, the officials went to Hermosa Park in South Phoenix. At approximately 10:00 p.m., they encountered White. The officials detained White, searched the immediate area and located 10 one ounce packages of cocaine in a nearby trash can. The officials also found a 9 millimeter handgun and approximately $450.00 in cash in White's vehicle. White admitted to the officials that the cocaine was his and that he was at the park for the purposes of selling it. The officials then obtained White's agreement to lead them to his supplier.

At approximately 10:30 p.m., White agreed to make a telephone call to Aspon Auto Service, located at 6443 South Central Avenue in Phoenix, and spoke to Tarazon. White advised Tarazon that he needed one-half kilogram of cocaine and subsequently told the officials that Tarazon told him that he could come and pick it up. White told the officials that he had purchased drugs at this establishment approximately three times in the past.

At approximately 11:00 p.m., White and the officials arrived at the establishment. White was met and admitted in by Tarazon. White and Tarazon, in the presence of Angel Serna, Tarazon's uncle, negotiated a price of $8,500.00, and Tarazon then took a bag of cocaine out from behind the front desk and showed it to White. White told Tarazon that he would return with the money. This transaction took three to four minutes.

After White left, he reported what had occurred to the officials and conferred with them regarding what action to take. White explained to the officials that Tarazon and Serna could become suspicious of any delay because White usually had his money with him. At least one official, ATF Agent Williamson, felt that delay could result in Tarazon's and Serna's leaving or destroying the cocaine. The officials decided to make a warrantless entry into the establishment. The officials made their entry at approximately 11:40 p.m.

The officials found Tarazon and Serna present in the establishment. The officials placed Serna and Tarazon on the floor and performed a warrantless search of the front desk. The officials discovered a sack in the bottom drawer of the desk containing cocaine. The officials discovered a loaded .25 caliber pistol in another drawer.

After being arrested and Mirandized, Tarazon told the officials that he owned the pistol, indicating that he kept it in the station based on concerns about robberies in the area. Tarazon also told the officials that the cocaine belonged to Serna, who did not speak English, and that he served as Serna's translator for drug transactions. Tarazon further told the officials that Serna had a supplier who delivered approximately one-half kilogram of cocaine per day.

Tarazon exercised his right not to testify at his trial. During closing argument, the prosecutor made the following comment: "Unless someone wants to get up here and say I didn't know to distribute cocaine is against the law, and you assist your uncle in negotiating a drug transaction it is intentionally aiding someone in committing a drug offense."

II.

A. Denial of the Motion to Suppress

Tarazon argues that all evidence obtained as a result of the warrantless entry, arrest and search should have been suppressed because: (1) there was no probable cause to arrest him or search the establishment; (2) there were no exigent circumstances sufficient to support a warrantless arrest or search; and (3) the scope of the search exceeded its constitutional justification. We review the district court's determination of the legality of an arrest or search de novo. See United States v. Lai, 944 F.2d 1434, 1441 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992). We review the district court's underlying factual findings for clear error. Id.

1. Probable Cause

The officials' determination of probable cause was based on White's information. In reaffirming the totality-of-the-circumstances ¹ analysis that has traditionally applied to probable cause determinations based on information obtained from an informant, the Supreme Court in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) held that "probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules. Informant's tips doubtless come in many shapes and sizes from many different types of persons." Id. at 232, 103 S.Ct. at 2329. The Court noted that even if an informant does not disclose the basis for his information, police corroboration or the surrounding circumstances can support a determination of the informant's reliability. Id. at 242-46, 103 S.Ct. at 2334-36. In applying Gates, this court has found that an admission against an informant's penal interest is a corroborating detail. "Admissions of crimes ... carry their own indicia of credibility--sufficient at least to support a finding of probable cause to search." United States v. Estrada, 733 F.2d 683, 686 (9th Cir.), cert. denied, 469 U.S. 850, 105 S.Ct. 168, 83 L.Ed.2d 103 (1984) (citing United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971)).

White provided information sufficient to support the officials' determination ² of probable cause. White admitted that he was a cocaine dealer, an admission against his penal interest. White further acted against his penal interest by calling his alleged supplier and agreeing to arrange a drug transaction in the officials' presence. Finally, as the district court found, the officials were able to corroborate White's information by listening to him talk to his supplier and following him to his supplier's establishment. Therefore, the totality of the circumstances shows that White's information was reliable and that the officials properly determined they had probable cause to arrest Tarazon and search the establishment. White's information indicated that the persons in the establishment were drug suppliers and that there would be drugs on the premises.

2. Exigent Circumstances

The existence of probable cause does not eliminate the need for a warrant absent exigent circumstances. See United States v. Suarez, 902 F.2d 1466, 1467 (9th Cir.1990). The government bears the burden of showing the existence of exigent circumstances by particularized evidence. Id. at 1468, citing United States v. Alvarez, 810 F.2d 879, 881 (9th Cir.1987). Mere speculation regarding the presence of drugs on a premises and the danger of their destruction is not sufficient to show exigent circumstances. Suarez, 902 F.2d at 1468. The officials must have had a reasonable belief that exigent circumstances existed. Id. Furthermore, the presence of exigent circumstances necessarily implies that there is insufficient time to obtain a warrant; therefore, the government must show that a warrant could not have been obtained in time. Lai, 944 F.2d at 1441 (citations omitted).

The officials' determination of exigent circumstances was also based on information obtained from White. White told the police that he usually operated with his supplier on a "cash in hand" basis and that they would become suspicious if he did not return soon to make his purchase. This court has held several times that irregularities in drug transactions which could cause a supplier to suspect police action and destroy evidence or prepare to defend a residence are sufficient to constitute exigent circumstances. See Lai, 944 F.2d at 1442; United States v. Lindsey, 877 F.2d 777, 781 (9th Cir.1989); United States v. Perdomo, 800 F.2d 916, 918 (9th Cir.1986); United States v. Wulferdinger, 782 F.2d 1473, 1476 (9th Cir.1986); United States v. Hicks, 752 F.2d 379, 384 (9th Cir.1985); United States v. Kunkler, 679 F.2d 187, 190 (9th Cir.1982). Therefore White's information about the ordinary manner of his drug transactions with his supplier was properly considered by the officials in determining whether exigent circumstances existed.

Tarazon argues that the circumstances in this case were not truly exigent but were the result of the officials' failure to seek a warrant earlier. See Alvarez, 810 F.2d at 882. While the officials arguably had probable cause under Gates before they followed White to the establishment and had him arrange the transaction which gave rise to the exigent circumstances, they were not required to rely solely on White's representations regarding the identity and...