United States v. Bonilla Romero

• Decision Date: 02 July 1986
• Docket Number: Crim. No. 86-83(PG).
• Citation: 639 F. Supp. 1021
• Parties: UNITED STATES of America, v. Felipe BONILLA ROMERO.
• Court: U.S. District Court — District of Puerto Rico

639 F. Supp. 1021

UNITED STATES of America, v. Felipe BONILLA ROMERO.

Crim. No. 86-83(PG).

United States District Court, Puerto Rico.

July 2, 1986.

Juan A. Pedrosa, Asst. U.S. Atty., San Juan, P.R., for plaintiff.

Francisco López Romo, Old San Juan, P.R., for defendant.

OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

Upon the arrest of defendant Felipe Bonilla Romero by local officers on September 18, 1985, and the search of his residence, also by state officials, on September 19, 1985, charges were brought against him at state and federal forums.

As to the charges on the federal forum, on February 19, 1986, the grand jury returned a five-count indictment against defendant. The indictment charges Bonilla Romero thru counts one and two for possession with intent to distribute on September 19, 1985, approximately 140.26 grams of cocaine in violation of 21 U.S.C. § 841(a)(1), and for possession with intent to distribute on September 19, 1985, approximately 181.13 grams of heroin also in violation of 21 U.S.C. § 841(a)(1). In counts three and four he has been charged for receiving on September 18, 1985, a firearm (a Baretta pistol .380 caliber, serial B74400Y, model 84-B) shipped and transported in interstate commerce in violation of 18 U.S.C. § 922(h)(1) and 924(a), and for carrying a firearm (Colt pistol caliber .45, serial 1844G70) on September 19, 1985, during and in relation to the commission of a crime of violence (the possession of narcotics with intent to distribute) in violation of 18 U.S.C. § 924(c). In count five he is charged for having received a pistol (Colt) on September 19, 1985, in violation of 18 U.S.C. § 922(h)(1) and 924(a) since defendant has been convicted for felonies.

On May 12, 1986, the case was called for jury trial. At that time defendant requested continuance of the trial and that in turn a hearing on a motion to suppress filed on May 6, 1986, be held.

Upon defendant's petition the motion to suppress was scheduled for and held on May 13, 1986. At the time arguments were heard from the parties.

At the conclusion of the proceedings on said motion to suppress defendant moved the Court to hold its decision on the matter until the state court ruled on a motion to suppress filed at the state court level. The matter was taken under advisement. Thereafter, the opinion rendered by the state court on the motion to suppress was forwarded to this Court and filed on May 19, 1986.

Defendant maintains that in view of the state court decision¹ the evidence seized from the defendant on September 18 and September 19, 1985, must be suppressed in the federal court. It is contended that the evidence is not admissible since, as determined by the state court judge, there was no probable cause to arrest the defendant and the search of defendant's home on September 19, 1985, was invalid because the search warrant was predicated on false statements.

The threshold question in this matter is one which pertains to the independence of judgment of the federal court based on its own appraisal of the evidence.

As stated by the Court of Appeals for the First Circuit in the case of United States v. Quiñones, 758 F.2d 40, 43 (1st Cir.1985) "It is well settled that in federal prosecutions evidence admissible under federal law cannot be excluded because it would be inadmissible under state law. Thus, it is a general rule that the federal district courts will decide evidence questions in federal criminal cases on the basis of federal, rather than state law." United States v. Rickus, 737 F.2d 360, 363 (3rd Cir.1984).

This is a case involving a federal crime, and federal law governs the admissibility of evidence in federal trials. Accordingly, the district court must pass on this issue with independence of the state court.

If the states could require federal courts to exclude evidence in federal criminal cases, some convictions would undoubtedly be lost and the enforcement of congressional policy would be weakened. United States v. Shaffer, 520 F.2d 1369, 1372 (3rd Cir.1975), cert. denied, 423 U.S. 1051 , 96 S.Ct. 779, 46 L.Ed.2d 640 (1976).

We must pass to ascertain whether under federal law the evidence obtained is inadmissible and subject to suppression as defendant contends.

As the Supreme Court has stated:

In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed. Elkins v. United States, 364 U.S. 206, 223-24 , 80 S.Ct. 1437, 1447-48, 4 L.Ed.2d 1669 (1960).

Aware that the admissibility of evidence against a defendant charged with a federal crime is always to be determined independently by the federal court, United States v. Mastrangelo, 733 F.2d 793, 799 (11th Cir.1984), we pass to analyze whether the evidence obtained by state officers to be used against defendant in the federal forum was obtained by an unreasonable search and seizure as defendant avers. Elkins v. United States,² supra; Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 882, 11 L.Ed.2d 777 (1964); United States v. Combs, 672 F.2d 574, 578 (6th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); United States v. Castillo, 449 F.2d 1300, 1301 n. 2 (5th Cir.1971).

Therefore, we will make an independent finding concerning the probable cause for arrest on September 18, 1985, and the reasonableness of the search warrant that was issued and executed on September 19, 1985. Through our own independent evaluation we must determine whether the evidence was obtained in an illegal way and with reckless disregard for the truth.

At the hearing held before us on the motion to suppress,³ the Court received the testimonies of Agents Caín Santiago Figueroa and Angel Luis Negrón Santiago, the two agents who offered affidavits in support for the search warrant. The testimonies of Miguel A. Cochrán Acosta, defendant's attorney in state court proceedings, and that of defendant himself were also received.

We have examined and weighed the witnesses' credibility, United States v. Baldacchino, 762 F.2d 170, 175 (1st Cir.1985); United States v. Jobin, 535 F.2d 154, 157 (1st Cir.1976), in reporting the findings which follow.

Agent Caín Santiago has been an agent at the Drugs and Narcotics Division in Ponce and has been a police officer with that unit for a period of four years (Tr. 32). He testified that his supervisor, Sergeant Pedro F. Arévalo instructed him to conduct a surveillance of defendant's house (Tr. 35-36)⁴ in relation to illegal activities that were being carried out there. He stated that on September 18, 1985, he proceeded to conduct a surveillance from a white van prepared for this type of operations (Tr. 61), which he parked in front of defendant's residence at a distance of 25 to 30 feet. The van offered clear visibility from inside out but not from outside in (Tr. 61). While conducting this surveillance on September 18, 1985, in less than two hours he witnessed two transactions (Tr. 46-47) which, given his experience (Tr. 60), appeared to be related to controlled substances.

Two vehicles went there in the morning. The first, a beige color Champ, parked parallel to where the official vehicle (Van) was parked. He described how a man entered defendant's home and around five minutes later came out carrying a small plastic transparent bag containing a white powder inside. He was unable to jot down the license plate number since the driver pulled out in reverse (Tr. 62).

Thereafter, another vehicle, which the witness described as a white colored Mitsubishi, came and parked in front of defendant's residence (Tr. 62). The individual called and defendant came out. After they conversed defendant Bonilla handed over a plastic bag containing white powder while the man handed over an amount of money to defendant (Tr. 63). The agent stated that given the position in which the vehicle was parked he was able to observe and jot down the license plate number (Tr. 63). He called and the vehicle was reported stolen (Tr. 49, 54, 63-64). At this point the agent then decided to go to the drug division and inform his supervisor, Sergeant Pedro F. Arévalo, about what had happened (Tr. 47, 64). Later on, he returned to the site. Agent Angel Luis Negrón Santiago drove, and upon arrival Agent Caín Santiago remained and Agent Negrón Santiago left.

While there and in the early afternoon, Agent Caín Santiago saw defendant coming out of his residence and getting to his car, which was parked in front of the residence. The agent stated he saw defendant carrying on the left side of his waist a black colored pistol (Tr. 64). Knowing that defendant Bonilla Romero had been convicted and as such was impeded from carrying a firearm, he gave the information over the radio to Agent Negrón (Tr. 64). Later on he found that defendant had been arrested and that a gun had been occupied along with two small plastic envelopes containing a white powder (Tr. 66) similar to the ones he had seen before in the morning of September 18, 1985, while effecting the surveillance ordered by Sergeant Arévalo (Tr. 66).

On that day, September 18, 1985, defendant was taken before Magistrate Prudencio Collazo Padín (Tr. 68); he admitted that the pistol and the drug seized belonged to him.

For the illegal reception of said gun, which was occupied during the arrest on September 18, 1985, defendant is charged in count three of the indictment under 18 U.S.C. § 922(h)(1) and 924(a).

We find there was probable cause for defendant's arrest. Concerning an arrest, "probable cause exists when the facts and circumstances within the arresting officers' knowledge ... are sufficient in themselves to warrant a man of...