U.S. v. Vasquez

Decision Date23 January 1992
Docket NumberNo. 90-2088,90-2088
Citation953 F.2d 176
Parties34 Fed. R. Evid. Serv. 993 UNITED STATES of America, Plaintiff-Appellee, v. Steve Tristan VASQUEZ, Alfredo Paul Guajardo, and Daniel Gomez, Jr., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

David R. Bires, Houston, Tex., for Vasquez.

Douglas C. McNabb, Houston, Tex. (court-appointed), for Guajardo.

Jose Gonzalez-Falla, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for Gomez.

Nina Goodman, Crim. Div., Appellate Sec., U.S. Dept. of Justice, Washington, D.C., Paula C. Offenhauser, Kathlyn G. Snyder, Asst. U.S. Attys., Houston, Tex., for U.S.

Appeal from the United States District Court For the Southern District of Texas.

Before WILLIAMS, DUHE and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendants Steve Tristan Vasquez ("Vasquez"), Alfredo Paul Guajardo ("Guajardo") and Daniel Gomez, Jr. ("Gomez")--found guilty (1) of conspiring to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846, and (2) of aiding and abetting the possession of more than 100 kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2--appeal their convictions. 1 Finding no error, we affirm.

I

On July 18, 1989, Guajardo contacted Roland Graz ("Graz"), a confidential informant for the Drug Enforcement Administration ("DEA"), to find a buyer for some marijuana. Graz contacted DEA agent Gerald Douglas ("Douglas") and told him of this conversation. That afternoon, Douglas and another undercover DEA agent, Barbara McCollough, met with Guajardo and an associate to discuss a possible transaction. 2

Guajardo telephoned Graz the following day, and told him that he had found a source with a large quantity of marijuana to sell. Graz and Guajardo agreed to meet so that the purchasers could view a sample of the marijuana. The next day, Guajardo met with Graz and Douglas in the parking lot of a Houston convenience store. Guajardo gave Douglas a one-pound sample of marijuana to examine, and offered to sell him 300 pounds of marijuana for $660 a pound.

Graz called Guajardo later and agreed to the deal. Graz then drove to a second convenience store where he met Guajardo, while Douglas waited nearby in an undercover van with the money to buy the marijuana. 3 Roberto Sanchez Nava ("Nava") 4 and Vasquez subsequently arrived to discuss the deal. Graz got into Nava and Vasquez's car, and was to accompany them to a nearby house where the marijuana was stored. Nava, however, stopped at two different phone booths before driving to the house. Gomez was waiting at the second phone booth where he and Vasquez spoke. Vasquez returned, and drove the car to a house on Auburn Street (the "Auburn Street house"). 5

Gomez had already arrived at the house and he let Nava, Vasquez and Graz in. Vasquez and Gomez went to a back room, and each returned carrying a bundle of marijuana. Gomez also showed Graz the rest of the marijuana in the back room. Graz then said he wanted to complete the transaction, so he agreed to contact DEA agent Douglas and ask him to bring the money.

Nava drove Graz back to the second convenience store. 6 Along the way, Nava stopped at a pay phone so that Graz could call DEA agent Douglas and tell him to return to the convenience store with the money. 7 Guajardo had waited for the purchasers' return at the convenience store. When Graz and Nava arrived at the convenience store, Graz walked over to Douglas's car and gave a prearranged arrest signal; Nava had walked over to Guajardo's car where they both were arrested.

Graz, accompanied by DEA agents, returned to the Auburn Street house. Graz was greeted by Vasquez and Gomez. Graz handed the money to Gomez. The agents then got out of the van, identified themselves, and entered the house through the back door without an arrest warrant. 8 The agents arrested Gomez inside the house and Vasquez on the front lawn.

Vasquez, Guajardo and Gomez were subsequently indicted and convicted of conspiracy to distribute, and of aiding and abetting the possession of more than 100 kilograms of marijuana with intent to distribute. They timely appeal, alleging that exigent circumstances did not justify a warrantless entry into Gomez's residence and that the evidence seized should have been suppressed. In addition, Vasquez raises three separate points of appeal, claiming that: (i) the evidence is insufficient to support his conviction under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846; (ii) the evidence is insufficient to support his conviction under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2; and (iii) the district court erred in admitting statements made by Vasquez's co-conspirators under Fed.R.Evid. 801(d)(2)(E). We review each contention.

II

The defendants moved to suppress evidence seized from the house, alleging that the agents' warrantless entry into the Auburn Street house violated their Fourth Amendment rights. The district court denied the motion, stating that exigent circumstances excused the agents' failure to obtain a warrant. Defendants assert error in this holding by the district court.

A warrantless entry into a home to effectuate a search or seizure presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 586-87, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980) (citation omitted). However, the presence of exigent circumstances may justify a warrantless entry into a home for the purposes of arrest or search. See Minnesota v. Olson, 495 U.S. 91, 100-01, 110 S.Ct. 1684, 1690, 109 L.Ed.2d 85 (1990). A district court's determination as to whether exigent circumstances existed is fact-specific, and will not be reversed unless clearly erroneous. See United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991) (citations omitted); see also United States v. Webster, 750 F.2d 307, 326 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340-41, 85 L.Ed.2d 855 (1985) (applying clearly erroneous standard to district court's determination that exigent circumstances existed); United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir.), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990) (when a district court's ruling on a motion to suppress is based on live testimony, trial court's purely factual findings must be accepted unless clearly erroneous, or influenced by an incorrect view of the law; evidence is viewed in light most favorable to the party prevailing below; and questions of law are reviewed de novo) (citation omitted).

To determine if exigent circumstances exist, some factors a court examines include: (1) the degree of urgency involved and amount of time necessary to obtain a warrant; (2) a reasonable belief that contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the contraband's possessors know police are on their trail; and (5) the ready destructibility of the contraband. See United States v. Thompson, 700 F.2d 944, 948 (5th Cir.), affirmed on appeal after remand, 720 F.2d 385 (5th Cir.1983) (listing facts that may be relevant to finding of existence of exigent circumstances) (citation omitted); see also United States v. Capote-Capote, 946 F.2d 1100, 1103 (5th Cir.1991) (listing frequently cited examples of exigent circumstances that may justify warrantless entry) (citation omitted).

The district court found that exigent circumstances existed, in part because the Auburn Street house was not under surveillance by the DEA and so the DEA agents did not know where the deal was taking place until they arrived at the house. The district court also found the DEA agents had a legitimate concern to secure the location because of the imminent danger to Graz. Gomez, Vasquez, and Guajardo each argue that the warrantless entry violated the Fourth Amendment. They argue that no exigent circumstances existed. They argue that warrantless searches, subject to only a few exceptions, are per se unreasonable under the Fourth Amendment. See Thompson, 700 F.2d at 946. Moreover, they contend that the Government has failed in its burden of demonstrating exigency. See United States v. Shima, 545 F.2d 1026, 1028 (5th Cir.), on reh'g, 560 F.2d 1287 (5th Cir.), cert. denied, 434 U.S. 996, 98 S.Ct. 632, 54 L.Ed.2d 490 (1977) (citation omitted) (burden on Government to show that exception existed). Defendants disagree that the Government's contentions--fear that the marijuana would be destroyed and concern for the informant's safety--establish exigent circumstances.

We agree with the Government's argument that it would not have been feasible to obtain a warrant before entering the house to arrest Vasquez and Gomez because the agents did not have the Auburn Street house under surveillance. We also agree with the district court's finding that exigent circumstances existed because of this fact. In addition, the agents acted reasonably for a second, and perhaps more important reason--although Nava and Guajardo had left with Graz to get the money to buy the marijuana, Nava and Guajardo could not return with Graz to the Auburn Street house because they had been arrested. Thus, the DEA agents' concern that Vasquez and Gomez might suspect Graz of treachery, threaten his safety, and then flee the house with the marijuana before the agents could obtain a warrant was reasonable. As we have noted, even after the arrest of Nava and Guajardo, the agents did not know the address of the Auburn Street house; Graz had to accompany the DEA agents there. Given this particular situation, there was an urgent need for the DEA agents to take action. See MacDonald, 916 F.2d at 769 ("[t]he essential question in determining whether exigent circumstances...

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