U.S. v. Velasquez

• Decision Date: 22 May 1980
• Docket Number: No. 79-2777,Nos. 79-2737 and 79-2777,V,No. 79-2737,79-2737,79-2777,s. 79-2737 and 79-2777
• Citation: 626 F.2d 314
• Parties: UNITED STATES of America v. VELASQUEZ, Cecilia, Appellant inelasquez, Pauline, Appellant in . Submitted Under Third Circuit Rule 12(6) on
• Court: U.S. Court of Appeals — Third Circuit

Page 314

626 F.2d 314

UNITED STATES of America v. VELASQUEZ, Cecilia, Appellant in No. 79-2737 Velasquez, Pauline, Appellant in No. 79-2777.

Nos. 79-2737 and 79-2777.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6) on May 22, 1980.

Decided July 23, 1980.

As Amended Aug. 5, Sept. 23, Oct. 16, 1980.

Barry H. Denker, Mary McNeill Greenwell, Philadelphia, Pa., for appellant, Pauline Velasquez.

Dennis H. Eisman, Philadelphia, Pa., for appellant, Cecilia Velasquez.

Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, App. Section, Curtis E. A. Karnow, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, and GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

Cecilia and Pauline Velasquez appeal from the entry of conditional guilty pleas on charges of conspiracy, possession and distribution of methamphetamine in violation of 21 U.S.C. §§ 841, 846 (1976). They allege that the district court erred in refusing to grant a suppression motion based on their claims that a warrantless forced entry, arrest and search by officers of the Drug Enforcement Administration (DEA) violated, inter alia, their fourth amendment right to be free from unreasonable searches and seizures. The Government argues that compliance with the fourth amendment's requirement of arrest and search warrants was unnecessary because of the presence of exigent circumstances. Additionally, Pauline Velasquez claims her fifth amendment rights were violated by the use of an incriminating statement made by her after she was advised of her Miranda rights but before any clear indication was made by her of waiver of those rights.

We believe that no exigent circumstances existed to justify the warrantless arrest and search. However, we conclude that Pauline Velasquez did waive her fifth amendment rights. Accordingly, we reverse in part and affirm in part the judgment of the district court denying the motions to suppress.

I.

The facts leading to the challenged entry, arrest and search are typical of the plethora of narcotics prosecutions which fill the pages of modern legal history. James McNesby, a DEA undercover agent, had purchased some methamphetamine drugs from appellant Pauline Velasquez on January 30, 1979. Officer McNesby arranged for a subsequent purchase of drugs which was to take place at Velasquez' home on February 6, 1979. McNesby assembled surveillance teams and an additional six or eight federal agents to accompany him to the Velasquez residence. No arrest or search warrants were obtained. The plan called for McNesby to enter the Velasquez home and negotiate the sale. He would then return to his car to obtain the purchase money which was to be a signal to the surveillance team to proceed promptly thereafter to accomplish the arrest.

McNesby met Cecilia Velasquez, Pauline's daughter, outside the house and together they proceeded inside. There, Cecilia displayed a brown paper bag and requested $6,400 for the drugs. McNesby replied that he wanted to "check the meth out first" to which Cecilia replied that they did not conduct business that way. Cecilia called upstairs to Pauline that McNesby did not have the money. She proceeded to a second floor landing and gave the paper bag to Pauline. Cecilia returned downstairs and told McNesby to get the money. McNesby then returned to his car but radioed the surveillance team to "wait a minute" before closing in on the house because he had not actually seen the drugs. McNesby returned to the Velasquez residence.

Approximately thirty seconds after McNesby's reentry into the Velasquez household, a bang or a knock was heard at the door. There was a dispute as to whether the officers announced their identity but it was undisputed that they failed to announce their purpose. Roughly twenty to thirty seconds elapsed and after hearing no response, the officers forcibly entered the house. McNesby was on the third floor where he encountered Cecilia and Pauline Velasquez exiting a front bedroom empty-handed.

The officers on the first floor spread out and searched the entire house. McNesby met them on the second floor and told them he suspected the drugs were in the third floor front bedroom. Cecilia and Pauline Velasquez were placed under arrest in a second floor bedroom. The search proceeded to the third floor front bedroom where they encountered an old woman who suspiciously moved a chair in front of a closet and sat down. The officers searched the closet and found a brown paper bag containing methamphetamine.

Meanwhile, on the second floor, Cecilia and Pauline were read their Miranda rights from a standard form. Pauline indicated that she understood her rights. She, however, signed no waiver of her rights yet proceeded to make certain statements which the Government sought to introduce against her.

The Velasquezes moved to suppress the drug evidence seized by the DEA as the product of a search and seizure violative of the fourth amendment. Pauline Velasquez moved to suppress the statements made to the arresting officers, on the ground that they were obtained in violation of her fifth amendment right against self-incrimination. The district court denied the motion to suppress the drug evidence holding that exigent circumstances, namely fear of destruction of the evidence and fear for Officer McNesby's physical safety, warranted dispensing with a warrant. The court rejected Pauline's fifth amendment claim holding that "the warnings that were given to Pauline were the kinds of warnings that are required in order to make a statement voluntary under the law." Following denial of the suppression motion, the appellants entered conditional guilty pleas to all charges and were sentenced to two consecutive five-year prison terms to be followed by a three-year special parole term. This appeal followed.

II.

The fourth amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . and (that) no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." We have disapproved of warrantless arrests in private dwellings as violative of the fourth amendment in the absence of exigent circumstances, see United States v. Davis, 461 F.2d 1026, 1030 (3d Cir. 1972), a view espoused by a majority of the federal courts of appeals and recently approved by the Supreme Court in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 63 L.Ed.2d 639 (1980). In Payton, the Court stated:

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home a zone that finds its roots in clear and specific constitutional terms . . . . In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Id. at 589-590, 100 S.Ct. at 1381.

The realities and practicalities of law enforcement dictate that in certain emergency situations, strict compliance with statutory and constitutional safeguards against intrusion into the sanctity of the home may be excused. Such exigent circumstances have been recognized in a variety of contexts but two situations are commonly considered to be of sufficient exigency to justify the governmental intrusion: (1) where there is a risk of destruction of evidence or escape of the defendants, see, e. g., United States v. Rubin, 474 F.2d 262, 268 (3d Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); Davis, supra; United States v. Singleton, 439 F.2d 381, 385-86 (3d Cir. 1971); and (2) where there is a threat of physical harm to a police officer or other innocent individual, see, e. g., Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1961); United States v. Shye, 492 F.2d 886, 892 (6th Cir. 1974); Rubin, supra, 474 F.2d at 268; United States v. Pino, 431 F.2d 1043, 1045 (2d Cir. 1970), cert. denied, 402 U.S. 989, 91 S.Ct. 1675, 29 L.Ed.2d 154 (1971). The Government contends and the district court agreed that these circumstances existed and justified the governmental intrusion into the privacy of the Velasquez' home in this case. The Velasquezes urge that there were no objective indicia that the contraband was about to be destroyed, that they were about to escape, or that Agent McNesby was in any danger. We are constrained to agree.

As to the possible destruction of the drugs, there is nothing in this record to suggest that the contraband was about to be destroyed. There is nothing to indicate that the Velasquezes suspected that McNesby was an undercover agent. McNesby apparently did not act as if they did. When he first met Pauline inside the house, he had not seen any drugs--only a brown paper bag which may or may not have contained them. On McNesby's return to his car, he radioed his fellow officers to wait before proceeding with the arrest so that he could verify the presence of the drugs and conclude the sale. These actions demonstrate one of two things. Either McNesby was dubious whether the bag contained drugs, or, if he thought drugs were in the bag, he must also have believed he could safely delay their seizure until he made the purchase without risking their destruction by the Velasquezes.

Nor do we find evidence that, when his fellow officers rushed to the door in disregard of McNesby's instructions, they did so because they heard sounds inside the house which would indicate that the drugs were being destroyed. McNesby did not call out to them that the drugs were being destroyed. In fact, the record reveals that the...