U.S. v. Valles-Valencia

• Decision Date: 26 February 1987
• Docket Number: SOTO-LEA,Nos. 84-1258,D,VALLES-VALENCI,84-1259 and 84-1285,s. 84-1258
• Citation: 811 F.2d 1232
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Israelefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ricardo Vigil BUSTAMANTE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Guillermoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1232

811 F.2d 1232

UNITED STATES of America, Plaintiff-Appellee, v. Israel VALLES-VALENCIA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo Vigil BUSTAMANTE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Guillermo SOTO-LEAL, Defendant-Appellant.

Nos. 84-1258, 84-1259 and 84-1285.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 12, 1986.

Decided Feb. 26, 1987.

Walter B. Nash and James L. Ripley, Tucson, Ariz., for defendant-appellant Soto-Leal.

William G. Walker, Tucson, Ariz., for defendant-appellant Valles-Valencia.

Bertram Polis, Tucson, Ariz., for defendant-appellant Bustamante.

John M. Roll, Tucson, Ariz., for plaintiff-appellee U.S.

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

Before GOODWIN, NORRIS and BRUNETTI, Circuit Judges.

GOODWIN, Circuit Judge:

Bustamante and Valles-Valencia (Valles) appeal their conviction of possession of marijuana with intent to distribute. Soto-Leal appeals his conviction for conspiracy to distribute marijuana and possession of marijuana with intent to distribute. We reverse Soto-Leal's conviction for conspiracy and affirm the judgments appealed from in all other respects.

The appellants challenge a number of rulings by the district court, but the principal issue is whether the arrest of the defendants by officers investigating a report of a burglary in progress contaminated all the evidence and compelled its exclusion.

A neighbor, Jerry Hauser, reported to the Pima County Sheriff's Office that two trucks and a truck-trailer rig were parked at a nearby house, the owners of which he understood to be on vacation. Hauser reported that he had seen several men, had questioned one of them, and received evasive answers which caused him to suspect that a burglary was in progress. Officers dispatched in response to the call found the trucks and trailer at the house and saw two men enter the house. Officer Hines then noticed Ruben Cruz-Sinotez ¹ and appellant Valles standing next to a truck. Officer Hines questioned Cruz-Sinotez and Valles and discovered that they did not speak English. He arrested and handcuffed both men. Meanwhile, officer Gray observed Francisco Villa-Tapia attempting to unhook the trailer from its truck. When Villa-Tapia told officer Gray that he did not live at the house and did not know who did, the officer asked him what was going on and received no answer. This prompted officer Gray to direct Villa-Tapia to put his hands on the trailer. When Villa-Tapia attempted to get into the cab of the truck, the engine of which was running, officer Gray handcuffed him. During this time, radio traffic began to produce a small convention of police officers.

Based on what Hauser had told them, officers Gray and Slawinski believed that four other suspects were still unaccounted for. As the officers approached the house, they noted that a screen on the lower floor appeared to be pried away from the window and that a sliding glass door on the upper floor was partially open. The officers then walked up the outside stairway to the second story landing where they were assaulted by the strong odor of marijuana emanating from within the house. Entering through the open door, the officers discovered a closed box of .44 Magnum ammunition on a table. They then found Soto-Leal and Bustamante in the living room and quickly handcuffed them.

With five suspects handcuffed and under arrest, Gray and Slawinski re-entered the house to see if anyone else was present. As the officers descended to the first floor, they discovered that the house was, in fact, a warehouse containing several rooms packed from floor to ceiling with marijuana.

Agents from the Federal Drug Enforcement Agency joined the assembling law enforcement officers. Thereafter, the house was kept under guard while warrants were obtained for further searches. Phone numbers and addresses discovered at the house led to an investigation of a second house which contained substantial quantities of baled marijuana and other evidence incriminating various individuals. The five arrested suspects were taken to jail. The appellants challenge virtually all the physical evidence, as well as statements made by those arrested at the scene, as the product of an illegal arrest and of the officers' original warrantless entry into the house.

The Suppression Hearing

The government prevailed on the suppression motions on the theory that the officers had the duty to preserve the status quo by handcuffing the suspects they encountered during the course of investigating a report of an on-going burglary. The government contends that the discovery of a major warehouse full of controlled substances, instead of house burglars carrying off valuables, merely constituted the fortuitous and inevitable result of correct police procedure under the circumstances.

The state of the law on the admissibility of evidence discovered during rapidly escalating police investigations is not crystal clear. Compare United States v. Strickler, 490 F.2d 378 (9th Cir.1974) and United States v. Russell, 546 F.2d 839 (9th Cir.1976). See also United States v. Richards, 500 F.2d 1025 (9th Cir.1974), cert. denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393 (1975). But, in this case, the officers gained no evidence as the direct or indirect result of the seizure of the defendants as the officers encountered them. As the Supreme Court set out in Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), we must judge the admissibility of evidence which is alleged to be the fruit of unconstitutional police activity under a threshold "but for" test: "[O]ur cases make clear that evidence will not be excluded as 'fruit' unless the illegality is at least the 'but for' cause of the discovery of the evidence. Suppression is not justified unless 'the challenged evidence is in some sense the product of illegal governmental activity.' " Id. at 815, 104 S.Ct. at 3391 (citing United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537 (1980)). Although the police handcuffed Valles-Valencia and his two compatriots face down on the driveway in order to secure the area before they approached the house, their investigation of the suspected burglary would have compelled them to proceed even without such a questionable seizure. Whether one officer would have had to remain behind to watch the suspects would not have changed in the least the subsequent search of the home, for which the officer had probable cause. Because none of the evidence used to convict Valles-Valencia was tainted by his seizure, even if that seizure was illegal, the arrest could not be a basis for setting aside his conviction. See Gerstein v. Pugh, 420 U.S. 103, 120, 95 S.Ct. 854, 865-66, 43 L.Ed.2d 54 (1975). All the actions of the suspects and the statements they made to the police on the scene occurred before the alleged illegal arrests.

The circumstances known to the officers supported probable cause to enter the building to learn what was happening. After the officers entered the upstairs and arrested Soto-Leal and Bustamante, they were justified in conducting a protective sweep of the remaining rooms. They reasonably believed that "there might be other persons on the premises who could pose some danger to them." United States v. Gardner, 627 F.2d 906, 909-10 (9th Cir.1980).

Hauser's report that he had seen two men "running into the brush" led the police reasonably to believe that two accomplices remained at large somewhere on the premises. The belief that the remaining suspects might be armed heightened the urgency of rounding them up. Thus, we may distinguish this case from the drug investigation cases, especially United States v. Spetz, 721 F.2d 1457 (9th Cir.1983) and United States v. Basurto, 497 F.2d 781 (9th Cir.1974), in which the risk of harm to the arresting officers was purely speculative. Here, the box of ammunition seen in the house provided a basis for fearing that remaining suspects in the vicinity of the house might be armed.

More problematic than the first entry and the initial protective sweep are subsequent entries by superior officers and detectives. To the extent that the officers should have postponed these entries until warrants had been obtained, appellants argue that the entries violated the fourth amendment rights of persons entitled to be in the house. We need not, however, canvas all the questions presented by these "tourist type" visits by curious officers who had assembled in response to radio information about a massive storehouse of contraband.

Even if exigent circumstances no longer supported these further intrusions, or if these intrusions exceeded the scope of the rationale exempting them from the warrant requirement, appellants have not shown how evidence traceable to these later intrusions prejudiced their defense. The prosecution obtained all the later discovered evidence under a warrant. Officers did not use the cumulative evidence observed by others in obtaining the warrants. Evidence legitimately observed during the protective sweep supported the warrants. Appellants do not claim that observations by other officers were needed to enhance the affidavits in support of the search warrants. Because evidence obtained independently of any possibly illegal searches amply corroborated the search warrants, they would stand whether or not the redundant searches were illegal as abstract questions of fourth amendment law. As the prosecution argues, Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599, and United States v. Lancellotti, 761 F.2d 1363 (9th Cir.1985), have foreclosed continued adherence to the broad exclusionary rule of United States v. Allard, 634 F.2d 1182 (9th Cir.1980) (illegal seizures pending a search warrant require exclusion of its fruits despite the search warrant's basis in previous...