United States v. Cisneros

• Decision Date: 01 September 1971
• Docket Number: No. 26115.,26115.
• Citation: 448 F.2d 298
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Baldamar CISNEROS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

448 F.2d 298 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Baldamar CISNEROS, Defendant-Appellant.

No. 26115.

United States Court of Appeals, Ninth Circuit.

September 1, 1971.

COPYRIGHT MATERIAL OMITTED

Carl E. Stewart (argued), Hollywood, Cal., for defendant-appellant.

John W. Hornbeck, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., Los Angeles, Cal., for plaintiff-appellee.

Before CHAMBERS, MERRILL and TRASK, Circuit Judges.

TRASK, Circuit Judge:

This is an appeal from a judgment of conviction in a nonjury trial in which the defendant, Joe Cisneros, was found guilty of two counts of violating 21 U.S.C. § 174, and one count of violating 26 U.S.C. § 4705(a) as a result of his participation in a sale of 30.02 grams of heroin on May 12, 1969. Our jurisdiction rests upon 28 U.S.C. § 1291.

Carol Thomas, a co-participant in this transaction, had made two previous sales of heroin to government agents, but she was never aware that she was doing business with agents of the Federal Bureau of Narcotics. Agent Ozment, in an effort to reach her source of supply, contacted Thomas regarding yet another purchase of narcotics. She told Ozment that her connection, whose name was Joe, had some heroin for sale. Agents Ozment and Herring, to consummate the sale, were to pick up Thomas, take her to meet her connection at his location, where she could obtain the narcotics, and make the purchase from her. R.T. 48. The agents met Thomas, and she directed them to the vicinity of a house on Spreckles Street, Redondo Beach, California, an area that had been the approximate location of one of the two prior sales made by Thomas. The house on Spreckles Street was owned by the father of Cisneros' girlfriend, Helen Montanez.

Before the appointment with Carol Thomas all of the agents met together and reviewed their respective assignments. There were three separate vehicles and six agents all in communication with each other by two-way radio. The agents other than Ozment and Herring were to maintain surveillance of the purchase of narcotics and of those involved and thereafter to make an arrest of all defendants concerned and recover the expended money. Ozment and Herring explained to the others that they were to pick up Thomas at 175th Street, Redondo Beach, California, then proceed to her source of supply and make the purchase. They also related that Thomas had given them two telephone numbers where she could be contacted, one of which was traced to the 175th Street address and the other to the Spreckles Street address.

Agent Raymond McKinnon, one of the group, had observed Carol Thomas on April 30 and May 8, prior to May 12, the date of the events detailed here. On this occasion, he observed Thomas leave the government vehicle of Ozment and Herring, walk to Spreckles Street where she proceeded down about three houses "and entered Cisneros' residence."¹

Thereafter he observed Thomas and Cisneros come out of the house together, R.T. 27, and walk toward the automobile of Ozment and Herring. Cisneros followed Thomas at a distance of from three feet to six feet and stopped before Thomas reached the agents and out of their sight waited for her. Thomas returned in a few minutes and Cisneros walked back to the house with her where they entered together.

In the meantime, Thomas had delivered to agents Ozment and Herring 30.02 grams of heroin for which she was given $700 in money that had been marked with fluorescent powder and listed. McKinnon then heard agents Ozment and Herring come on the two-way radio stating that the buy had taken place and that they were to arrest all defendants. McKinnon was then about one quarter block away. He drove at once to the house, slammed on the brakes and ran toward the front door just as Carol Thomas was coming out. One of the other government vehicles was coming up at the same time. Agent Richardson who was with him, placed Thomas under arrest and McKinnon ran on to the front door. The front door was slammed in his face. McKinnon did not knock but forced the door open and announced himself "as police as I was entering the door."² He noticed Cisneros make a movement towards the bed in the bedroom and then seeing the agent coming through the door he ran out the back with the agent in pursuit. As Cisneros ran out the back door and around the house, McKinnon observed him toss away an object which was later recovered and identified as the $700 purchase fund given to Thomas. When Cisneros was placed under arrest outside the house, he was returned to the house and a package of cigarettes was taken from him which when examined was found to contain a small amount of heroin. His hands and those of Thomas at this time were put under an ultra violet lamp and revealed the markings of the fluorescent powder with which the purchase money had been dusted.

An additional 64.44 grams of heroin were found in Thomas' bedroom inside the house. That heroin was the subject of count four of the indictment upon which the trial court granted a judgment of acquittal.

An extended hearing was first held on a motion to suppress. Appellant sought to suppress the introduction of any of the heroin described in the indictment as evidence in any criminal proceeding. C.T. 4. At the conclusion of the presentation of the evidence on this issue, the motion was denied. The parties then stipulated that the evidence on the motion be considered on the trial of the case with the parties to have the right to present additional evidence and that the trial be to the court. The conviction followed. The appellant assigns four questions for review, (1) lack of probable cause for arrest, (2) absence of justification for search of the house, (3) absence of justification for search of the rear grounds, and, (4) insufficiency of the evidence.

Probable cause to arrest under the circumstances disclosed here is governed by federal standards. Rocha v. United States, 387 F.2d 1019, 1022 (9th Cir. 1967), cert. denied, 390 U.S. 1004, 88 S.Ct. 1247, 20 L.Ed.2d 104 (1968). An arrest by federal narcotics agents can be made without a warrant when they have reasonable grounds to believe that the person arrested has committed a violation of the Federal Narcotics law. 26 U.S.C. § 7607;³ Jordan v. United States, 416 F.2d 338, 345 (9th Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 930, 25 L.Ed.2d 101 (1970). Reasonable grounds as used in 26 U.S.C. § 7607, and probable cause as used in the Fourth Amendment have the same meaning. Ng Pui Yu v. United States, 352 F.2d 626, 630 (9th Cir. 1965). Thus, appellant's extensive reliance upon California law in his brief is misplaced. We turn then to a consideration of the facts giving the agents probable cause to believe Cisneros had participated in a narcotics transaction. Thomas had previously sold narcotics to agents, once in this approximate location; Thomas had given the agents a telephone number which was located in the house on Spreckles Street. Cisneros' involvement is derived from Thomas' statements to the agents that she had to get the heroin from a connection,⁴ and as well from his conduct during the sale in walking out with Thomas, waiting for her to complete the sale, and then returning with her to the house. Without more, Cisneros' conduct could be arguably considered innocuous. But there is more. When the agents approached the house, Cisneros slammed the door.⁵ Refusal of entrance to a known law officer can be considered as a factor in establishing probable cause. Martone v. United States, 396 F.2d 229 (1st Cir. 1968); Rodriguez v. Hanchey, 359 F.2d 724, 727 (5th Cir.), cert. denied, 385 U.S. 884, 87 S.Ct. 179, 17 L.Ed.2d 112 (1966). Cf. United States v. Soyka, 394 F.2d 443, 453 (2d Cir. 1968) (en banc rehearing), cert. denied, 393 U.S. 1095, 89 S.Ct. 883, 21 L.Ed.2d 785 (1969).

Thomas testified that she knew what was happening as soon as she saw the cars approach the house. R.T. 129. Cisneros testified that he did not know if the approaching people were police or someone Carol Thomas had just defrauded in a narcotics transaction. Cisneros denied seeing the cars approach. Miss Helen Montanez, Cisneros' girlfriend, who was sitting on the couch in the living room with Cisneros, saw the agents approaching in their cars down the street. R.T. 74. Cisneros had the same view. R.T. 78. We think the trier of fact was entitled to disbelieve Cisneros' testimony that he did not see the agents' cars approach. And, furthermore, we think it proper to conclude that as an addict with a prior conviction he had some familiarity with police procedures. Cisneros probably concluded, as did Carol Thomas, that the officers' conduct was not ambiguous and that the persons approaching the door were police. And, in light of Thomas' conduct, which Cisneros realized could have been a narcotics transaction, R.T. 216-17, Cisneros had reason to believe the people approaching his house were engaged in a narcotics raid. Thus, we conclude that Cisneros' behavior in slamming the door in the face of the approaching agent and the deviousness of the entire transaction are elements adding to the proof of probable cause, and we conclude that Agent McKinnon had probable cause to arrest Cisneros prior to the time McKinnon forcefully entered the Spreckles Street residence in pursuit of Cisneros.

We turn next to Cisneros' complaints about the search of the house and grounds. He complains that the evidence obtained by the search of the house and the backyard exceeded the permissible scope of a search incident to an arrest because the search was not confined to the immediate vicinity of the arrest, which was in the side yard of the house, nor was it substantially contemporaneous with the arrest, because the officers examined Cisneros' hands in the house before searching the backyard.

With respect to the search of the house and Cisneros, no heroin was discovered which became the basis for...