United States v. Juan Guilbe Irizarry and Jose Garcia Rodriguez

673 F.2d 554, 1982 U.S. App. LEXIS 20829

Opinions

COFFIN, Chief Judge.

This case poses a Fourth Amendment challenge to the validity of a warrantless search and seizure by federal agents in Puerto Rico. One defendant also raises the further question of whether his motion for a verdict of acquittal was properly denied. Our review of the record persuades us that the trial court should have suppressed some of the challenged evidence, and that one of the convictions should therefore be reversed.

I. The Facts

During the late evening and early morning of January 28-29, 1980, the United States Drug Enforcement Administration’s Puerto Rican office coordinated four or five arrest teams as they effected about twenty-three different arrests for federal drug violations. One of those teams was led by DEA Special Agent Swint. Agent Swint’s team included a second DEA agent, two FBI agents, and two local police officers. Shortly after midnight Agent Swint learned via radio that Osvaldo Farinas, for whom his team had an arrest warrant, was in a room at the Isla Verde Holiday Inn. The agents parked their cars near the hotel security guard post and walked up to the room.

Agent Swint knocked on the door to the room and called, “Police. Open the door.” The room had a plate-glass window next to the door, and the curtain on the window was drawn back about one foot. Agent Swint looked through the window and saw appellant Guilbe withdraw a revolver from a handbag that was resting on the dresser. Agent Swint took cover. Two to three minutes later he called out, “Police, open the door. Come out with your hands up.” Three to four minutes later, the door opened and Guilbe emerged with his hands up, followed by appellant Garcia and Farinas. All three were arrested in the hallway, were ordered to lie on the floor, were searched for weapons, and were advised of their rights in Spanish.

Agent Swint then entered the hotel room “to see if there were any other persons inside the room.” He went through the main room and entered the bathroom, where he noticed marijuana residue around the sides and the bottom of the bathtub. He returned to the main room and observed two marijuana cigarette butts in the ashtray. Agent Swint told the rest of the agents that there was no one else on the premises, got a bag, and went back to the bathroom to collect the residue from the tub. The three defendants were then taken back into the hotel room.

FBI Agent Philip remained in the hallway for a few minutes. He then entered the room “to see what was happening or what was keeping Special Agent Swint.” He walked straight into the bathroom and saw Agent Swint standing inside the bathtub. He looked up at the bathroom’s drop ceiling and saw that a soundproofing panel in the ceiling was ajar. He climbed up onto the toilet, looked into the space in the ceiling and saw an object. He reached into the .ceiling and removed the object, which turned out to be a package of marijuana and a gun. He then asked for a flashlight, looked in again, and found four packages: two more guns, a package of cocaine, and a second package of marijuana.

Before trial, the defendants moved on the basis of stipulated facts to suppress all evidence found in the hotel room and bathroom. The trial court denied the motions. At a bench trial, the defendants objected to the use of the seized evidence, on the basis of the agents’ live testimony. The trial court overruled the objections and found all three defendants guilty of having aided and abetted each other in possessing a measurable quantity of marijuana and in possessing cocaine with intent to distribute it. 18 U.S.C. § 2,21 U.S.C. §§ 841(a)(1), 844. The court also found defendant Guilbe guilty of possession of a firearm while aiding and abetting the others in their possession with intent to distribute cocaine, 18 U.S.C. § 924(c)(2). Guilbe and Garcia took these appeals. Farinas chose not to rely on the courts and took off.

II. The Fourth Amendment Challenges

A. Standing of Appellant Garcia

In order to challenge on Fourth Amendment grounds the use of evidence at one’s trial, one must demonstrate “a legitimate expectation of privacy in the area searched”. United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980). The hotel room here was registered to appellant Guilbe. Appellant Garcia, however, offered no evidence of any personal interest in the room beyond his being “merely present”. Indeed, he affirmatively sought to deny any connection with the room or its contents. It was therefore perfectly legitimate to introduce evidence seized from the room against him at trial.

We realize that the government did not challenge Garcia’s standing, either before the trial court or on appeal. That fact, however, does not alone bring us within the rule of Steagald v. United States, 451 U.S. 204, 208-11, 101 S.Ct. 1642, 1645-47, 68 L.Ed.2d 38 (1981), in which a defendant’s standing was held to be beyond further challenge. In Steagald the government failed to challenge facts from which the defendant’s standing could reasonably have been inferred. In this case, Garcia never carried his initial burden of offering facts from which a court might reasonably infer his standing. See United States v. Miller, 636 F.2d 850, 853-54 (1st Cir. 1980). Moreover, in Steagald the government appeared to have raised the standing issue as part of a last-minute shift in litigation tactics. In this case, there is nothing to suggest that the government was deliberately “sandbagging” the district court or shifting strategies.

In the discussion that follows, we consider only whether appellant Guilbe was denied a fair trial by the admission of the seized evidence.

B. Legitimacy of the Agents’ Activities

Since the search of the hotel room followed immediately upon the arrest of the defendants, one might be tempted to analyze it as a search “incident to an arrest”, undertaken to preserve the officers’ safety and prevent the destruction of evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We therefore note explicitly that the government does not invoke the Chimel exception here, because none of the items seized was within the “immediate control” of the defendants at the time of their arrest in the hallway. Id. at 763, 89 S.Ct. at 2040.

Instead, the government offers a two-step justification for the seizures by Agents Swint and Philip. It argues that Agent Swint was entitled to enter and briefly examine the hotel room because of “exigent circumstances” and that he was then entitled to seize evidence under the “plain view” doctrine. Similarly, the government argues that Agent Philip legitimately entered the bathroom and that the evidence above the bathroom ceiling was in plain view. We analyze these arguments one step at a time.

1. Exigent Circumstances — Swint’s Entry

In Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971), the Supreme Court summarized the law of warrantless searches as follows:

“Thus the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions’. The exceptions are ‘jealously and carefully drawn’, and there must be ‘a showing by those who seek exemption ... that the exigencies of the situation made that course imperative’. ‘[T]he burden is on those seeking the exemption to show the need for it.’ ”

This doctrine is often expressed in the shorthand phrase, “warrantless searches are per se unreasonable in the absence of exigent circumstances”. Id. at 479, 91 S.Ct. at 2044.

“Exigent circumstances” have traditionally been found in those crisis situations when there is compelling need for official action and no time to secure a warrant. Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978) (warrantless entry into a burning building to put out a blaze). See also Chimel v. California, supra (search “incident to arrest”); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (warrantless entry in hot pursuit of an armed robber); Ker v. California, 374 U.S. 23, 40-43, 83 S.Ct. 1623, 1633-1635, 10 L.Ed.2d 726 (1963) (warrantless entry to prevent destruction of evidence where such destruction is reasonably thought imminent); United States v. Zurosky, 614 F.2d 779 (1st Cir. 1979) (warrantless entry into warehouse at 4:25 a. m. when activity inside reasonably suggests that a breaking and entering is taking place); United States v. Edwards, 602 F.2d 458, 468 (1st Cir. 1979) (warrantless entry to prevent destruction of heroin reasonably thought imminent); United States v. Miller, 589 F.2d 1117, 1126 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979) (warrantless entry and reentry of a boat where drowning suspected and tidal flow created need for swift action).

In this case, we agree that the government has carried its burden of demonstrating a “compelling need” for Officer Swint to enter the hotel room and perform a post-arrest “security check”, in order to determine whether another, potentially armed, individual was hiding within the room. The record on this point is somewhat spare and makes it a close issue. Nevertheless, we believe that it adequately demonstrates that Agent Swint’s search was not motivated by mere curiosity, but rather by a legitimate concern for the safety of his fellow officers. It was late at night. They had come to the hotel to arrest one person. Three people had emerged from the room after a five-to-seven minute delay. Most significantly, one of the three had produced a gun inside the room. Agent Swint was entirely reasonable in suspecting that a fourth person, also armed, remained within. Compare United States v. Gamble, 473 F.2d 1274 (7th Cir. 1973). His entry was necessary to ensure that the potential fourth person did not attempt to surprise the agents in the hallway and thereby secure the escape of the other three. Agent Swint obviously could not have sought a warrant to perform such a security check. “The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” Warden v. Hayden, supra, 387 U.S. at 298-99, 87 S.Ct. at 1645-46. See also W. LaFave, Search and Seizure § 6.4, at 431 (1978 & Supp.1981) and cases discussed therein.

Having established Agent Swint’s right to enter the hotel room we must also establish that the scope and manner of his search were “strictly circumscribed by the exigencies which justify its initiation”. Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978); Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882-1883, 20 L.Ed.2d 889 (1968). Agent Swint entered the living room and walked into the bathroom. Nothing in the record suggests that his search ever deviated from a path corresponding to an objectively reasonable hunt for an armed fourth person. His search was thus in proper proportion to the exigency that authorized it; it was not unreasonable under the Fourth Amendment.

2. The “Plain View” Doctrine — Swint’s Seizures

While carrying out his security check of the bathroom and hotel room, Agent Swint observed marijuana residue in the bathroom and marijuana butts in the living room ashtray. After completing his security check, Agent Swint seized those items. In Coolidge, supra, the plurality opinion stated that where a police officer has a prior legitimate justification for an intrusion, in the course of which he inadvertently comes across a piece of incriminating evidence, he may seize that evidence without a warrant. 403 U.S. at 466-70, 91 S.Ct. at 2038-40. We have already concluded that Swint legitimately undertook a quick check of the hotel room and bathroom to ensure that no potentially armed fourth person remained inside. Ample evidence on the record supports the conclusion that the marijuana in the bathtub and the butts in the ashtray were located where one could inadvertently see them while carrying out such a security check. He was therefore justified in seizing the evidence without a warrant.

3. Agent Philip’s Entry into the Bathroom

The government argues that a similar analysis supports Agent Philip’s seizures of items from above the bathroom ceiling. It contends that he was legitimately within the bathroom and that the evidence above the ceiling was in plain view.

The record is somewhat confused regarding the circumstances of Agent Philip’s entry into the bathroom. The pretrial stipulation of facts reported that he entered the bathroom “[ajfter Agent Swint left the bathroom”. At trial, however, he testified that he entered “to see what was detaining” Agent Swint. Given our conclusion that the second half of the government’s argument (that the evidence was in plain view) is based on faulty analysis, we need not resolve this conflict. Rather, we will assume that Agent Philip legitimately entered the bathroom.

4. The “Plain View” Doctrine — Philip’s Seizures

The government contends that once Agent Philip had entered the bathroom, he was entitled to seek out and seize the evidence above the bathroom ceiling under the “plain view” doctrine. We disagree.

When Agent Philip was standing on the bathroom floor, he could not see any seizable evidence. All he saw was a displaced soundproofing panel. The government has not argued that as he looked at the displaced panel, it was “immediately apparent” to Agent Philip that he was looking at evidence of a crime. Coolidge v. New Hampshire, supra, 403 U.S. at 466, 91 S.Ct. at 2038. Nor would such an argument be plausible, since Agent Philip did not even consider seizing the panel as evidence. Instead, Agent Philip became suspicious that he might be able to find evidence if he looked around above the ceiling. He therefore undertook a search to see what might be up there. He climbed up onto the toilet and looked inside. From that vantage point, he saw “the first something”. Although he could not tell what the “something” was, he reached inside and took it out. He then saw that it was “a weapon, and a package of green weed”. At that moment, it is clear that Agent Philip had evidence in plain view., “But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the ‘plain view’ doctrine has been to identify the circumstances in which plain view has legal significance rather than being the normal concomitant of any search, legal or illegal.” Id. at 465, 91 S.Ct. at 2037.

We do not question the reasonableness of Agent Philip’s suspicion that if he searched above the ceiling he might find evidence. That is not the point. What is significant is that, without any prior approval by a detached magistrate, he launched himself on an exploratory search. And he did so at a time when “[tjhere was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant.” Mincey v. Arizona, supra, 437 U.S. at 394, 98 S.Ct. at 2414. In fact, the only person with a right to enter the hotel room was in custody. When Agent Philip was standing on the bathroom floor, no evidence was in plain view. His warrantless search for such evidence was not justified by any exigent circumstances

Footnotes

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* and was therefore contrary to the Fourth Amendment. Cf. United States v. Jackson, 576 F.2d 749 (9th Cir. 1979) (officer stood in plain view of an open file drawer; his search through the file for evidence was unconstitutional, no matter how strong his suspicion that he would find evidence there).

In its brief, the government cites United States v. Garcia, 616 F.2d 210, 212 (5th Cir. 1980); United States v. Arredondo-Hernandez, 574 F.2d 1312, 1314-15 (5th Cir. 1978); and James v. United States, 418 F.2d 1150, 1151 n.1 (D.C.Cir.1969) for the proposition that “the plain view doctrine is not made inapplicable because a law enforcement agent may have to crane his neck, bend over, or squat”. Examination of those cases, however, reveals that they were discussing a different “plain view” problem, a problem more accurately termed one of “open view”. They were all analyzing the question of whether an officer intrudes upon a person’s privacy — whether he conducts a search — when he looks at items that are visible to the public. Thus, the .complete quote in James, supra, reads as follows:

“That the policeman may have to crane his neck, or bend over, or squat, does not render the doctrine inapplicable, so long as what he saw would have been visible to any curious passerby.” James v. United States, supra, 418 F.2d at 1151 n.l. (Emphasis added.)

See also United States v. Arredondo-Hernandez, supra, 574 F.2d at 1314 n.1. Such cases do not have any bearing on Coolidge, which determines what evidence may be seized without a warrant after an officer has justifiably penetrated a constitutionally protected area — an area that is not accessible to “any curious passerby”. See 1 W. LaFave, Search and Seizure § 2.2, at 242-43.

Coolidge authorizes warrantless seizure of items in plain view only “to supplement the prior justification” for the warrantless search. Coolidge v. New Hampshire, supra, 403 U.S. at 466, 91 S.Ct. at 2038. The activities an officer may undertake to expand his field of view are therefore restrained by his excuse for the warrantless entry. The restraint is not a straitjacket: many emergency situations will justify fairly energetic undertakings. But it must always be the exigency that justifies the action; the “plain view” doctrine cannot, by itself, permit an officer to indulge in a frolic of his own. Id. at 468, 91 S.Ct. at 2039. In sum, where an officer’s presence is limited to a particular justification or purpose, what is in plain view is restricted to what could be inadvertently seen when his movements are made pursuant to that purpose. We need not analyze what may have actually been in his mind; movements clearly outside the scope of his mandate cannot be termed inadvertent. Cf. United States v. Weber, 668 F.2d 552 at 554-555 (1st Cir., 1981).

The government would have us lengthen the leash between the exigency and the search; but once the nature of the exigency ceases to define the scope of plain view, the leash could be stretched without limit. A police officer who entered a student’s dormitory room to break up a brawl would be allowed to clamber up the bookcases to see what sort of illicit matter might be hiding behind Madame Bovary. Such wide-ranging searches, not countenanced by the protective reflection of a neutral magistrate and not necessary to respond to an emergency, are precisely the invasions of privacy that the Fourth Amendment prohibits.

Since the evidence above the ceiling was seized in violation of his Fourth Amendment rights, its introduction denied appellant Guilbe a fair trial.

III. The Sufficiency of the Evidence

Appellant Garcia urges that we reverse the trial court’s denial of his motion for a judgment of acquittal. In reviewing the trial court’s decision, we consider 'the evidence as a whole, United States v. Indelicate, 611 F.2d 376, 384 (1st Cir. 1979). We draw all inferences that may be reasonably drawn therefrom, in the light most favorable to the government. We then determine whether a reasonable person could find guilt beyond a reasonable doubt on each of the counts. Id.

The evidence at trial admissible as to Garcia showed that he was present in the hotel room with Guilbe and Farinas when the agents arrived. After the knock, Guilbe took a gun out of a handbag in the main hotel room. Several minutes later, the three defendants emerged together. In the meantime, Guilbe’s gun had found its way into the bathroom and up above the ceiling, along with two other guns, marijuana, and cocaine. Other marijuana was in the bathroom tub, and two marijuana butts were in the main room’s ashtray. This evidence supports the inference that Garcia was aware of the marijuana in the hotel room before the agents arrived. It supports the further inference that each defendant had brought one gun to the hotel room and that when the agent knocked they hid all three guns, the marijuana, and the cocaine. We cannot declare that no reasonable mind would ever conclude beyond a reasonable doubt, on the basis of this evidence, that Garcia (1) came to the room with a gun, knowing that marijuana and cocaine would be present, and (2) deliberately gave the gun to another defendant, agreeing that it should be hidden along with a measurable quantity of marijuana and along with cocaine that was intended for distribution. Such direct personal involvement would constitute a violation of the statutes under which Garcia was convicted. We find the evidence in this case more substantial than that adduced in United States v. Mora, 598 F.2d 682 (1st Cir. 1979) and United States v. Mehtala, 578 F.2d 6 (1st Cir. 1978), where no such direct personal involvement was shown. The trial court did not err in denying the motion for acquittal, based on the evidence that it had received at trial.

The conviction of defendant Garcia is affirmed. The conviction of defendant Guilbe is vacated on the basis of the trial court's failure to suppress unconstitutionally seized evidence, and a new trial ordered.

Although the government has not attempted to persuade us that Agent Philip’s search was justified by exigent circumstances, our dissenting brother’s interest in that possibility prompted us to canvass the record with that in mind. We found no support for such a finding. Moreover, we believe that any chain of reasoning that turns Agent Philip’s hypothetical “apprehension of danger” into a justification for his warrantless search would be irreconcilable with Supreme Court precedent.

At the time Agent Philip “ascended the throne”, the six agents had the three defendants completely under control. The defendants were seated on the bed, unarmed, and either were handcuffed or could easily have been handcuffed.- The agents knew that no one else was on the premises. The fact that a gun was known to be hidden somewhere cannot, by itself, transform the situation into a crisis. A gun is not a bomb; it is dangerous only if a defendant is holding it. Were we to find an exigency whenever any plausible or implausible sequence of events might link a defendant with a gun’s potential hiding place, we would allow warrantless searches of unlimited scope. “The only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other.” Chimel v. California, 395 U.S. 752, 766, 89 S.Ct. 2034, 2041, 23 L.Ed.2d 685 (1969).