United States v. Squella-Avendano

• Decision Date: 25 August 1971
• Docket Number: No. 71-1143.,71-1143.
• Citation: 447 F.2d 575
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Oscar SQUELLA-AVENDANO et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

447 F.2d 575 (1971)

UNITED STATES of America, Plaintiff-Appellant, v. Oscar SQUELLA-AVENDANO et al., Defendants-Appellees.

No. 71-1143.

United States Court of Appeals, Fifth Circuit.

August 25, 1971.

Neal R. Sonnett, Asst. U. S. Atty., Robert W. Rust, U. S. Atty., J. V. Eskenazi, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellant.

Donald I. Bierman, Miami, Fla., for Oscar Squella-Avendano.

Michael A. Masin, Harry Prebish, Prebish & Masin, P.A., Miami, Fla., for Andres Rodriguez.

Alfred Duran, Angelo Ali, Miami, Fla., for Carlos Rojas.

Donald Frost, Miami, Fla., for Raul DeMaria.

Frank Ragano, Ragano & LaPorte, Miami, Fla., for Marco Osorio.

Theodore Klein (Court-appointed), Fine, Jacobson & Block, Miami, Fla., for Rudolfo Quintanilla.

Albert Carricarte, Miami, Fla., for Jorge Vasquez.

Before JOHN R. BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.

GEWIN, Circuit Judge:

The United States appeals from an order granting a motion to suppress the use of about 200 pounds of cocaine as evidence.¹ We perceive no constitutionally unlawful search and reverse.

Acting on a confidential informant's report that certain individuals intended to smuggle a large shipment of Chilean cocaine into Miami, Florida, federal narcotics agents conducted extensive investigation and surveillance. Their efforts culminated in the arrest of appellees and the seizure of about 200 pounds of illegal cocaine. The government's brief provides an accurate description of certain pertinent events preceding the arrest. We quote from it those facts which the defendants have chosen not to dispute:

Other than that the cocaine was from a Chilean source, it was not known when or how it would arrive in Miami. On July 24, 1970, the informant advised that the cocaine would arrive at anytime. On July 26, 1970, the informant advised that the cocaine had arrived, and the defendants were attempting to rent a certain type of automobile which would be used to pick up and deliver the cocaine. Later, the informant supplied information concerning the make of car that had been rented and gave the agents the last three digits of the license plate, which were 906.

The car was located and placed under surveillance. On the morning of July 27, 1970, it was followed to a parking place in Miami Springs, where the defendants Osorio and Quintanilla left it. It was next seen at about 12:30 p.m. that day, parked beside a C-46 aircraft, where cartons were unloaded from the airplane and into the car. Then, the defendant Squella drove the car back to the parking lot where he parked it in the same parking space that it had been parked in by Quintanilla.

The car remained there until 2:30 that afternoon, when Quintanilla returned, received the car keys from the defendant DeMaria, and drove off.

Quintanilla, in the rented automobile, was followed by Rojas, driving a green Dodge. Driving in tandem, they began circling blocks * * * They stopped the cars, and Quintanilla ran back to Rojas, conferred with him for fifteen seconds, ran back to the rented car, and both cars left in opposite directions at a high rate of speed.

The rented car, containing the boxes, was lost by the surveillance agents. It was later located at the apartment at 44 Santillane Avenue, occupied by Quintanilla. The apartment had not been under surveillance, but agents had driven by to see if the car might have returned there. Quintanilla was observed unloading the cartons from the car and taking them into the apartment. Other agents were notified by radio, and joined the first agent at the apartment. They checked with their headquarters and were told that there was not time to get a warrant.

The circumstances immediately surrounding the arrest are somewhat more in dispute. Accordingly, factual disputes will be resolved in favor of the appellees, but evidence that is uncontradicted will be accepted at its face value unless voided by a district court finding of poor credibility.

About ten minutes after the boxes were unloaded into Quintanilla's apartment, six or eight agents had converged on the scene. Radio instructions from headquarters directed them to effect an immediate arrest, regardless of whether cocaine was found on the premises. No arrest warrant was obtained because, the agents felt, a delay might permit the destruction of evidence and allow the defendants to escape.

The testimony is unclear regarding the exact sequence and time intervals of events immediately preceding the arrest. It is clear, however, that these events occurred in rapid succession, many of them simultaneously. It appears that immediately after the decision to arrest was made, Agent Hudson of the Bureau of Narcotics and Dangerous Drugs went to the door of the apartment, knocked on it, and announced "Police. Open the door."² After a pause, during which he heard hurried moving around in the apartment, he repeated the announcement in Spanish, "Policia. Abra la puerta." Meanwhile, Bureau of Narcotics Agent Robinson was stationed at the right front corner window of the house; looking into it, he observed the cocaine strewn on the kitchen floor and pointed it out to Bureau of Narcotics Agent Zell, who accompanied him.³ Hearing the hurried movements inside, he announced into the window, "Open the door. You're under arrest."⁴ At this point, Agent Hudson opened the unlocked front door and immediately saw the cocaine strewn in plain view on the living room floor in boxes and suitcases. Simultaneously with the opening of the door both agents heard the sound of breaking glass at the rear of the apartment. Agent Robinson remained in front to watch the front door, while Agent Hudson ran around to the rear to find the defendant Vasquez climbing out of a window. He was arrested. The defendant Osorio was found hiding in a bedroom closet and was arrested. Quintanilla, who apparently escaped through the back window, was arrested later, as were Squella-Avendano, Rodriquez, Rojas and DeMaria.

The trial judge was apparently of the opinion that the agents did in fact have probable cause to effect an arrest, but he nevertheless found the arrest fatally defective because, under the circumstances, he believed the agents fell short of their constitutional duty in failing to procure warrants for the search of the apartment and arrest of the defendants.⁵ He expressed, in dictim, an alternative opinion⁶ that the arrest could not stand because the agents did not announce their purpose before entering, as required by 18 U.S.C. § 3109⁷ and Miller v. United States.⁸ The defendants seek to uphold the ruling of the district court upon the grounds given in the opinion below, and assert, in addition, that there was not probable cause for the arrest, and that Agent Robinson's peering through the window of the apartment was an unconstitutional search.

I

At the outset we consider and reject the district court's ruling that warrants should have been obtained prior to the arrest. At the time of arrest 26 U.S.C. § 7607(2)⁹ plainly authorized these agents to arrest without a warrant "for violations of any law of the United States relating to narcotic drugs * * * upon reasonable grounds to believe that the person to be arrested has committed or is committing such violation."¹⁰ This statute has been directly held constitutional¹¹ and has repeatedly passed unchallenged before the Supreme Court.¹² Congress apparently chose to enact this measure in order to give narcotics agents broad discretion in performing their duties. On the one hand they are entitled to act quickly, to prevent suspects from escaping or evidence from being destroyed:¹³ on the other hand, they are permitted to proceed deliberately in order to strengthen their case or to apprehend additional suspects.¹⁴

Of course, a warrantless arrest requires closer scrutiny by the courts in determining whether probable cause exists than would an arrest based on the sound judgment of an impartial magistrate.¹⁵ Mindful of this standard, we proceed to a consideration of the defendants' assertion that probable cause for the arrest did not exist.

II

It is too obvious to require discussion that if the informant's report that the defendants had imported 200 pounds of cocaine is worthy of belief, there was probable cause for arrest. Defendants therefore attack the reliability of the informant, pointing out that he had not previously provided any information to officers by which his reliability could be measured. The consequence is, they say, that the weight of the circumstances offered by the government to show probable cause is critically lightened and falls below the minimum necessary to support a finding of probable cause. The two-pronged test by which we measure the effect of an informant's reliability on an officer's determination of probable cause was set out in Aguilar v. Texas.¹⁶ To rely on an informant's report to establish probable cause, it must affirmatively appear that the agents were informed of:

first some of the underlying circumstances from which the informant concluded that his information was accurate, and second some of the underlying circumstances from which the officer concluded that the informant * * * was "credible" or his information "reliable." Otherwise, "the inferences from the facts which lead to the complaint" will be drawn * * * by a police officer "engaged in the often competitive enterprise of ferreting out crime," Giordenello v. United States, supra, 357 U.S. at 480 486, 78 S.Ct. 1245 at 1250, 2 L.Ed.2d 1503 at 1509; Johnson v. United States, supra, 333 U.S. 10 at 14, 68 S.Ct. 367 at 369 92 L.Ed. 436, at 440, or, as in this case, by an unidentified informant.¹⁷

In Spinelli v. United States¹⁸ the court stated that an informant's tip that did not meet Aguilar's requirements literally could nevertheless be used to justify a search or arrest if "it can fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as...