United States v. Lopez, 72-1544.
Decision Date | 26 March 1973 |
Docket Number | No. 72-1544.,72-1544. |
Citation | 475 F.2d 537 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Antonio LOPEZ, Defendant-Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
Ronald Lev, Chicago, Ill., for defendant-appellant.
James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and KILEY, Circuit Judge.
Defendant Antonio Lopez was charged in a two-count indictment with violations of Title 21, U.S.C.A. § 174. A conspiracy was charged in Count One and a substantive violation in Count Two. In essence, the subject of both counts was the offense of fraudulently and knowingly receiving, concealing, buying, selling and facilitating the transportation, concealment and sale of approximately 474 grams of a mixture containing heroin, and conspiring to do so. The conspiracy count named as defendant's co-conspirators defendants Pablo Troche, Robert Warren and Antonio Gobel. The substantive count named the same three persons as defendants with Lopez.
Defendant Lopez was tried with Troche, and a jury found each of them guilty on both counts. Gobel was dismissed from the case. Warren was a fugitive from justice at the time of the trial. Lopez and Troche were each sentenced by the trial court to serve a total term of five years in a federal penitentiary. Defendant Lopez alone has appealed.
A brief statement of the facts, considered in the light most favorable to the Government, will furnish the setting necessary to consider the issues raised on appeal. Agents of the Federal Bureau of Narcotics and Dangerous Drugs conducted an investigation leading to the arrest of defendant; Agent Vinsik supervised.
The agents had heard that Robert Warren was in Chicago to sell narcotics. Warren and Antonio Gobel were both residing in Room 1207 at the Holiday Inn, 644 North Lake Shore Drive, Chicago, Illinois, on June 20, 1969. Agent Vinsik, with other agents, heard voices coming out of 1207. The next day Agent Vinsik rented Room 1209, which was to the north of, adjacent to and shared a common wall with 1207. The agents commenced a 24-hour surveillance of the defendants. Both Warren and Gobel were known to have dealt in narcotics.
The agents testified that while in 1209 they could hear conversations and other recognizable voices in 1207 through the common wall, using only the naked ear. The agents were able to tell whether someone was going in and out of 1207 by the sound of the door and the rush of air from the door. No electronic devices were use by the agents.
On June 22, 1969, at about 2:30 P.M., Agent Vinsik heard the telephone ring in 1207 and Warren's voice answer, "Hello," "It will be here either tonight or tomorrow morning," followed by, Later that evening, someone knocked on the door of 1207 and identified himself as "It's Buddy," from Indiana, and asked, "Do you have anything yet?" Warren responded, "No, not yet."
At 10:30 A.M., June 23, 1969, defendant Lopez was first seen leaving a Flash cab in front of the Holiday Inn, where he was met by Warren. Lopez was staying in Room 1220, down the hall from 1207. Room 1220 was obtained by Warren, registered in the name of A. Vitali and paid for by Lopez. Later that day, Lopez and Warren were seen together in the lobby of the Holiday Inn. About 12:40 P.M. Agent Vinsik heard the telephone ring in 1207 and Warren's voice say, "American Airlines Flight 249 arriving at 10:00 o'clock Chicago time, A. Vitali," and, after a pause, "I'll pick you up." About 1:00 P.M., there was a knock on the door of 1207, and Warren's voice asked, "Who is it?" The answer was, "It's me, the devil." Warren then said he didn't have anything yet, but it would cost a thousand dollars an ounce and it would be good stuff. Later, at about 8:30 P.M., Warren was observed going to the American Airlines terminal, O'Hare International Airport. He asked about Flight 249 and was informed it had been cancelled.
During the next day, June 24, 1969, Agent Cruz, who speaks Spanish, overheard Lopez and Gobel discuss how much money they were going to make. Agents heard numerous telephone calls and people going and coming from 1207 during the evening hours. About 6:30 P.M., Troche was seen leaving a cab, carrying a black attache case, getting a room assignment and then going up to 1207. After Troche entered the room Warren asked, "Where is it?" Troche answered. "Here it is." Warren stated, Agents heard a set of scales banging up and down. Later, Lopez was heard to say,
Agent Vinsik then stood by the door of 1209 and waited for the door to 1207 to open. When Lopez opened the door of 1207 about ten agents, led by Vinsik, immediately entered the room and without delay arrested Lopez, Warren and Gobel. The arrest occurred about 7:45 P.M. on June 24, 1969. The agents did not use a passkey but, after hearing that Lopez was ready to leave, waited outside in the hallway for someone inside Room 1207 to open the door.
On a desk located adjacent to the common wall in 1207 were several bags of a white powder, a scale, some strainers and a can of dextrose anhydrous Merck. There was testimony that dextrose anhydrous Merck is frequently used to cut and mix a stronger quality of heroin to a lesser quality for use. It was shown that the 474 grams of heroin seized from the desk in 1207 were 100 per cent pure heroin.
Agent Vinsik testified that "as soon as the door was opened, I went right in" and that Lopez "never got outside the room." The agents had neither an arrest warrant nor a search warrant. Prior to their entry they made no announcement of their identity or purpose. As soon as they entered the room, they arrested and handcuffed Lopez and gave him Miranda1 warnings, as they also did to Warren and Gobel.
At a pre-trial hearing on February 29, 1972, a motion to suppress the evidence seized in Room 1207 was denied,2 as was a motion requesting the trial judge to inspect the scene of the arrest. A motion to have the jury view Rooms 1207 and 1209 was made during trial and denied.
Citing Title 18, U.S.C.A. § 3109,3 defendant first argues that the trial court erred in admitting into evidence the 474 grams of pure heroin because the arresting officers failed to announce their authority and purpose before entering Room 1207. No claim is made that the agents needed either a search warrant or an arrest warrant. It is conceded that § 3109 applies where an entry is made to effect an arrest without a warrant. Sabbath v. United States, 391 U.S. 585, 588-589, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958).
Relying upon Sabbath and Miller, defendant argues that § 3109 requires that prior to entering a dwelling, officers must make (1) an announcement of their authority to make the arrest, and (2) an announcement of their purpose to make an arrest, and that failure to do so vitiates an otherwise valid arrest and search and seizure incidental to such an arrest. Defendant reads the evidence at the pre-trial suppression hearing as showing that the agents failed to comply with the requirements of § 3109. We do not agree.
In the first place, we find Sabbath and Miller distinguishable on their facts from the case at bar. In Sabbath, federal officers opened a closed but unlocked door without announcing their authority or purpose. In Miller, the door was locked with a door chain, and the arresting officers put their hands inside the door, ripped the chain off and then entered without demanding admission or stating the purpose of their presence or placing the occupant under arrest until after they had entered his apartment.
Mr. Justice Brennan, speaking for the majority in Miller, analogized the requirements of § 3109 with the requirements of local District of Columbia law and found them substantially identical. 357 U.S. at 306, 78 S.Ct. 1190. The majority finally stated: (Emphasis added.) Id. at 313-314, 78 S.Ct. at 1198.
In Sabbath, Mr. Justice Marshall took note of the various means of entry found violative of § 3109, and said: (Citations and footnotes omitted; emphasis added.) 391 U.S. at 590, 88 S.Ct. at 1758. Further, in reference to whether "exigent circumstances" mentioned in Miller might excuse compliance with § 3109, the Court noted that the...
To continue reading
Request your trial-
People v. Neer
...1208; United States v. Whitney, supra, 633 F.2d 902, 909; United States v. Jackson (4th Cir.1978) 585 F.2d 653, 662; United States v. Lopez (7th Cir.1973) 475 F.2d 537, 541; cf. United States v. Harris (D.C.Cir.1970) 435 F.2d 74.) And comparing the current facts to those of McConney, I find......
-
State v. Ramirez
...Neb. 872, 877, 472 N.W.2d 898, 901 (1991). 56. Compare, e.g., United States v. Remigio, 767 F.2d 730 (10th Cir.1985); United States v. Lopez, 475 F.2d 537 (7th Cir.1973); Wittner v. United States, 406 F.2d 1165 (5th Cir.1969); United States v. Conti, 361 F.2d 153 (2d Cir. 1966), vacated on ......
-
State v. Coyle
...a door was opened without knowledge that police were outside of it, and the police then made an unannounced entry. In United States v. Lopez, 475 F.2d 537 (7th Cir.), cert. denied, 414 U.S. 839, 94 S.Ct. 89, 38 L.Ed.2d 74 (1973), the defendant opened the door and was therefore presumably aw......
-
U.S. v. Mendoza
...an individual emerge from the door, turn around and go back in the building where they suspected illegal gambling); United States v. Lopez, 475 F.2d 537 (7th Cir.), cert. denied, 414 U.S. 839, 94 S.Ct. 89, 38 L.Ed.2d 74 (1973) (Federal Agents entry into the open door of a motel room after p......