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Documente Cultură
_______________________
Guillermo Gil, United States Attorney, was on brief for appellee.
_____________
____________________
September 29, 1994
____________________
CAMPBELL,
Senior
Circuit Judge.
_______________________
the United
States
Defendant-
District Court
for
the District
of
to distribute
heroin, in
motion in
limine to
2.
violation of
21 U.S.C.
suppress evidence,
L pez
entered a
ruling.
I.
Factual Background
__________________
After
a hearing
on
the motion
to suppress,
the
May
agent
patrolling
the
Piedras, in
15,
of the
1993,
agent
Puerto
Rico
Los Lirios
an unmarked
Housing
car.
Wilfredo
Gonzalez
Police Department
Project
Agent
and
were
in Cupey,
Rio
Gonzalez noticed
two
been
project.
a reliable
involved
in
confidential informant of
illegal
drug
transactions
cars that
at
the
____________________
1. In his brief, defendant's name is given as Arnaldo L pez
Wilson or L pez-Wilson. We note, however, that in the
government's brief, the district court opinion, the plea
agreement, and other court documents and police reports, the
name appears as Arnaldo Wilson L pez, or Wilson-L pez.
-22
Gonzalez
water!"):
heard
people
a signal,
shouting
according
"Agua!,
to Agent
agua!"
("Water!,
Gonzalez, used
by
those involved in
presence
of police.
The
two
cars
among law
parked
in
front
of
enforcement
others of the
officials as
a situs
of
watched, Agent
Gonzalez saw an
object fall
As the
which
he determined
substances.
with the
the
to be
arrest; in five
and
asked
identification.
to the
the
As
lying on
the
exited
and no
top of
one
second floor,
persons
containing controlled
police proceeded
door,
a package
inside
five
to
individuals
arrived, and
knocked
step
on the
out
exited,
for
Agent
a table
within.
else remained
in
After all
five had
the apartment,
Agent
hundred small
Again,
he
determined
that
the
-33
it held several
one dropped in
packages
it
held
the street.
controlled
substances.
arrested.
The
Housing
district
Project
court
"is
well-known
being effectively
organizations
officials
who
have
among
the
Los
Lirios
law
enforcement
often
control of
shot
at
well-armed drug
law
enforcement
that to wait
for a
at the project.
The
court determined
re-enter or to remain in
a visible and unpopular
have
that
under the
would
found
of the
bag
and would
II.
Analysis
________
L pez moved to suppress the heroin, arguing that it
both
the
and
"exigent
The
of the heroin
circumstances"
exceptions
to
the
district court's
exercise
warrant
requirement.
We
plenary
review
over
the
review
the
district
court's legal
-44
conclusions.
United States v.
______________
Sanchez, 943
_______
F.2d 110,
112
A.
Applicable law
______________
L pez
failing
to
Constitution
apply
to
argues that
of his
the
the
standards
its analysis
raise this
district
of
of
the
court
the
Puerto
search and
issue below.2
However,
Rico constitution,
standards applicable
not federal officers.
that
to Police
Because
the court
in
Rico
seizure.
counsel
mentioning the
must apply
of Puerto Rico
if not, the
erred
"the
officers and
Judge would
be
____________________
2. In the introduction to his motion below, L pez argued
that the search was "conducted by Puerto Rico Police officers
in violation of the Fourth Amendment of the Constitution of
the United States and the Supreme Court ruling in Delaware v.
________
Prouse, 440 U.S. 648, 99 S. Ct. 1391 (1979)."
______
In Prouse, the Delaware Supreme Court had held that
______
police use of discretionary "spot checks" of automobiles
violated both the federal and state constitutions. Prouse
______
held, among other things, that the U.S. Supreme Court had
jurisdiction over the appeal even though the decision was
based partly on the state constitution, because it was
apparent that the Delaware court's interpretation of the
state constitution was affected by its understanding of the
federal constitution.
Though Prouse's other holdings might also be relevant to
______
the case before us, one might imagine that L pez cited it
with the intention of arguing that the Puerto Rico
Constitution should be applied in his case (though on this
point a citation to Prouse is tangential at best). However,
______
L pez did not thereafter mention Prouse, the Puerto Rico
______
Constitution, or even any Puerto Rico cases in his brief and
oral argument before the district court.
-55
argument made
to preserve
United States
_____________
by
an issue for
cert. denied,
____________
Freije
______
1967).
But
it seems
advanced was
114
S. Ct.
sufficiently
on appeal.
is
for
It
federal
prosecutions in
neither
83
411 n.7
e.g.,
____
(1st Cir.
anyone
the
first time
simply
it is
that "federal
without
law governs
United States v.
______________
nor federal
in
law is
112
violation of
admissible in
Id.
___
to
district court").
federal court."
"'Evidence
the Constitution
appeal
is now open,
well established
(1991).
on
now
(5th Cir.
(1994); see,
___
F.2d 408,
the argument
merit.
S.
1410
articulated below
general issue
Even, however, if
a codefendant,
arguments
because the
may sometimes
doubtful to us
appeal by
v. Sanchez-Sotelo, 8
______________
1993),
survive
one defendant
evidence
investigation.
is
obtained
in
the
of
state
_____________
n.7 (1st Cir. 1989).
_____
for the
-66
where
federal officials
seek to
case
of flagrant abuse of
capitalize on
the law" by
an "extreme
Probable cause
______________
Because the
upon
the
outside
officer's
the
justified
apartment, entry
and
were
into
the
the apartment
thereupon
arrested
apartment was
not
a search of a house is
to be
upheld
inside
______
the house")
apartment's
(emphasis in
threshold,
cause to believe
original).
Agent Gonzalez
needed
To cross
the
(1) probable
would be found
the warrant
first
requirement, allowing
obtaining a warrant.
him to
enter without
mentioned in
the
initial
was inherently
police reports
(though
was not
it
was
also made the next day), and that the police never identified
-77
the
carrier of
package of
the
bag.
Had
Agent Gonzalez
not seen
would
not have
there
was
had probable
cause either
incriminating evidence
are
in
the
to believe
that
apartment or
to
bound
by
the
district
court's
factual
F.2d
credibility
of
witnesses
competence
of the
under
170, 175
(1st
is
Id.
___
of Puerto
prosecution,
evidence
supra.
_____
The
not
district
and since
However, special
apply in
court's
federal
finding
that
clearly erroneous.
heroin,
argues that,
law do
is by no means
contained
Rico
the
standard of rigorous
standards
"[T]he
within
L pez
law, a special
Cir. 1985).
particularly
trial court."
United States v.
_____________
Since the
defendant
dropped packet
and his
companions
carried the yellow bag from which the packet had dropped into
the apartment, the
to arrest
of
viewing of
course
cannot
the dropping
subsequent examination
of the dropped
his
contained
finding
that
it
-88
object
of the
to
Agent
packet and
packet, resulting
heroin.
Agent
his
in
Gonzalez
observed
this
"If
inspection
the
legitimate
subject
U.S.
evidence before
by
expectation
to the
police
of
does
reasonable expectation
not
privacy,
Warrant Clause."
left behind
any intrusion
had occurred.
intrude
there
is
Illinois v.
________
in a public street,
upon
no 'search'
Andreas, 463
_______
have had no
United
______
States v.
______
1989).
Eubanks, 876
_______
F.2d 1514,
1516
(11th Cir.
bag
accomplices
bag, which
had
could
contained drugs,
were seen
and
entering the
since
apartment
probable cause
lawfully
to seize
enter
the
defendant and
the yellow
apartment
his
carrying the
they
having
warrant.3
____________________
3. Defendant disputes as inherently incredible Gonzalez's
testimony that the bag was in plain view in the apartment.
Again, we are bound by the district court's factual finding
on this issue, which was not clearly erroneous. Moreover,
because the officers had probable cause to believe the bag
contained drugs and had been left in the apartment, and
because we find, below, that the officers' reasonable fear
-99
C.
Exigent Circumstances
_____________________
In
determining
sufficient to justify a
test
is "whether
1980).
States
______
we
must
there
there is such
a compelling
exigency
necessity for
obtaining a
is necessarily 'fact-based.'"
an
is
whether
include
the gravity
of
the
United
______
Factors
underlying
likelihood that
until a
____________________
4. Agent Gonzalez's "plain view" of the yellow bag from
outside the apartment did not give him the right to enter the
apartment. An officer is not entitled to conduct a
warrantless entry and seizure of incriminating evidence
simply because he has seen the evidence from outside the
premises. "Incontrovertible testimony of the senses that an
incriminating object is on premises belonging to a criminal
suspect may establish the fullest possible measure of
probable cause. But even where the object is contraband,
this Court has repeatedly stated and enforced the basic rule
that the police may not enter and make a warrantless
seizure," absent exigent circumstances. Coolidge v. New
________
___
Hampshire, 403 U.S. 443, 468 (1971). Thus Agent Gonzalez's
_________
"plain view" of the bag from outside the apartment would not
have justified the seizure unless exigent circumstances
existed. This is not a situation to which the so-called
"plain view" doctrine applies. That justification to search
arises where an officer, already properly on the premises,
________________________________
sees contraband or evidence in plain view that is unrelated
to the original justification for entry. See Arizona v.
___ _______
Hicks, 480 U.S. 321, 325-26 (1987).
_____
-1010
Here,
in the
fact
that the
housing
project, and
in
particular
activity" and
controlled by armed
drug-dealers who
"well-armed camp
every
day."
fact
where
Further, the
drug transactions
shouts of "Agua!,
was made
illegal
in public
occur
"probably alerted
presence of police
officers."
To
had
either to
risk
destruction
of the
evidence
by
risk their
own safety
by remaining
at the
building to
possibility
that
evidence
will
be
destroyed
by
is a well-recognized exigency."
occurred
in
(1st Cir.
a location
controlled
by
drug
to believe that
been
-1111
notified
of the
police presence,
reasonably determine
the district
court could
have placed
members
of
entitled to conclude,
the
their safety,
public, at
as well
risk
had
they
safety of
stayed at
the
lives of others."
298-99 (1967).
See,
___
Warden
______
v. Hayden, 387
______
United States
_____________
Cir. 1982).
v. Irizarry, 673
________
U.S. 294,
989 F.2d
(1993); Donlin,
______
F.2d 554,
558
had shot
at law officers in
agua!'
members
the
enforcement
circumstances,
drug
trafficking
of the community
officers
in
the officers
screaming 'Agua!,
were
to the presence
the
could
community
area."
have
In
of
such
believed that
any
Cir.
F.2d
34, would
to the
risk of
harm.
-1212
shooting incident or a
have
resulted in
struggle in such an
injury
or
death
to
the
atmosphere could
police
or
to
bystanders.
Because
withdrawal
by
the
officers
would
have
personal safety at
risk, the
-1313