United States v. Lopez

• Court: Court of Appeals for the First Circuit
• Decided: March 26, 1993
• Docket: 92-2010
• Status: Published

Opinion

USCA1 Opinion

March 25, 1993
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-2010

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   ALEXANDER LOPEZ,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                               Torruella, Circuit Judge,
                                          _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                              and Boudin, Circuit Judge.
                                          _____________

                                 ____________________

            William T. Murphy was on brief for appellant.
            _________________
            Zechariah  Chafee, Assistant  United  States  Attorney, with  whom
            _________________
        Lincoln C. Almond, United States Attorney, was on brief for appellee.
        _________________

____________________

                                    March 25, 1993
                                 ____________________

BOUDIN, Circuit Judge.  In the district court, Alexander
                         _____________

            Lopez  was convicted  of  possessing cocaine  with intent  to

            distribute and  with conspiracy  to commit the  same offense.

            21  U.S.C.     841(a)(1), 846.   The  jury deadlocked  on two

            other counts, later dismissed, charging Lopez with possessing

            a  short barrel shotgun and with its use in drug dealing.  26

            U.S.C.   5861(d);  18 U.S.C.    924(c)(1).   On this  appeal,

            Lopez contests only the  district court's refusal to suppress

            evidence obtained at the time of his arrest.  We affirm.

                 The pertinent facts, developed mainly at the suppression

            hearing, can be briefly stated.  Early on the morning of June

            22,  1991, Charles Perry, a long-time cocaine user, went to a

            building in  Providence, Rhode  Island, to  purchase cocaine.

            The building was a decrepit  three-story tenement and, on the

            second floor, there was a kitchen, an adjoining bathroom, and

            three adjoining bedrooms available for rent on a weekly basis

            to  tenants,  who  were  expected to  share  the  kitchen and

            bathroom.  On the morning of June 22, one bedroom, previously

            used  by  prostitutes,  was  empty;  one was  occupied  by  a

            respectable tenant away at work;  and the last was used by  a

            cocaine dealer named Blackie for whom Lopez worked.

                 Arriving at  the second floor by the  back stairs, Perry

            found the door to the kitchen open and entered  to find Lopez

            and another  man.  Perry bought  a small bag  of cocaine from

            Lopez and left to  inject the cocaine.  Several  hours later,

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Perry returned.  Finding the second floor door now closed, he

            negotiated  a  sale  from  the  outside,  took  his  purchase

            downstairs  and  found  that   he  had  bought  baking  soda.

            Returning to the  second floor,  he pounded on  the door  and

            yelled   until  admitted.     There   he  found   Lopez,  the

            unidentified  man present  on his  first visit,  and Blackie.

            When Perry began to yell, Blackie leveled a sawed-off double-

            barrel shotgun at Perry and told him to leave.

                 Retreating to the yard outside, Perry continued to yell.

            Blackie left, threatening Perry as he did so.  Perry then had

            someone call  the  police  to  report  that  Perry  had  been

            threatened with a sawed-off shotgun.   Lopez emerged and gave

            Perry  a packet  of cocaine.   Police  cars, responding  to a

            radio  alert, began  to arrive.   Pointing  to the  building,

            Perry then described to several officers a male wearing green

            camouflage trousers and no shirt.  Officer Tombs, who arrived

            separately, heard  the description and saw  Lopez standing in

            the  yard behind  the building,  without a shirt  and wearing

            green camouflage pants, apparently holding an object.

                      Tombs, clad  in uniform,  called on Lopez  to halt.

            Instead, Lopez dashed into the building and ran to the second

            floor.   Tombs pursued, broke through  two intervening doors,

            and  arrested  Lopez  in  the   little  bedroom.    As  Tombs

            handcuffed  Lopez, a radio fell over, and six tiny baggies of

            cocaine were disclosed.   Other officers  appeared, including

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Officer  Vanderhorst, and  a search  for the  shotgun ensued.

            Vanderhorst,  entering  the  bathroom,  saw  a  ceiling  tile

            missing.   He stood on the  toilet, peered in, and  saw a big

            bag,  which proved  to have smaller  bags of  cocaine inside.

            Then,  looking in again,  he saw a  gun butt.   As he climbed

            down,  possibly using  a  ceiling panel  as a  hand-hold, the

            ceiling collapsed  and spilled  a sawed-off shotgun  onto the

            floor.  From handcuffing  to discovery of the gun, only a few

            minutes passed.

                 After a  suppression hearing before  trial, the district

            court refused to suppress the shotgun or the cocaine found in

            the  bedroom  and the  bathroom.   The  court found  that the

            arrest leading to the discovery of cocaine in the bedroom was

            based upon probable cause  and that Lopez had no  standing to

            object  to  the search  of  the bathroom.    On the  issue of

            standing, the court  found that the bathroom was available to

            anyone on the premises, had  no outside lock, and  engendered

            no expectation  of privacy.   The  cocaine  and shotgun  were

            offered as evidence  at trial.   Lopez was  convicted on  the

            cocaine counts.

                 On this appeal, Lopez argues  that as an authorized user

            of the apartment, he  had standing to object to  the bathroom

            search under  United States  v. Irizarry,  673 F.2d  554 (1st
                          _____________     ________

            Cir. 1982).   In turn,  the government  defends the  district

            court's suppression  ruling  primarily  by  arguing  lack  of

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standing, citing United States v. Thornley, 707 F.2d 622 (1st
                             _____________    ________

            Cir. 1983).   As a second  string to its  bow, the government

            argues that  exigent circumstances justified  the search  for

            the  shotgun  without  awaiting  a  warrant.    We  think the

            standing  issue  a close  call and  prefer  to affirm  on the

            merits of the Fourth Amendment claim.

                 It is  common ground  that the Fourth  Amendment forbids

            only  unreasonable  searches and  seizures;  that  normally a

            search is unreasonable absent  a warrant issued by a  neutral

            magistrate  upon  a showing  of probable  cause; and  that to

            excuse  the lack  of a  warrant,  the police  must ordinarily

            bring the case within one or  more of a list of exceptions to

            the  warrant  requirement.   See  generally  Coolidge v.  New
                                         ___  _________  ________     ___

            Hampshire,  403  U.S.  443, 477-78  (1971).    A  few of  the
            _________

            exceptions are  huge, such as  arrest for  felony and  search

            incident  to  arrest,  which  embrace Lopez'  arrest  in  the

            bedroom--assuming probable  cause to pursue him  in the first

            place.   Most  of the  exceptions, however, are  narrower and

            more complex.  

                 The exception with  which we are concerned in  this case

            excuses the  lack of a warrant  where "exigent circumstances"

            exist,   requiring  speed   and  making   delay  improvident.

            Although   the  most  frequent   example  is  the  threatened

            destruction of evidence, e.g., Cupp v. Murphy, 412  U.S. 291,
                                     ___   ____    ______

            294-96  (1973),  a   solid  line  of  cases    finds  exigent

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circumstances where the safety of law enforcement officers or

            the  general public is  threatened.  E.g.,  Warden v. Hayden,
                                                 ___    ________  ______

            387 U.S.  294, 298-99 (1967); Criminal  Procedure Project, 80
                                          ___________________________

            Geo. L.J. 939, 987 (1992) (collecting numerous cases).   This

            circuit has so  held.   E.g., United States  v. Rengifo,  858
                                    ___   _____________     _______

            F.2d  800, 805 (1st Cir.  1988), cert. denied,  490 U.S. 1023
                                             ____  ______

            (1989).

                 The  question here, then,  is whether  the police  had a

            reasonable basis to believe  that a threat to safety  existed

            of an urgency and magnitude that  would justify a warrantless

            search  of the kind that  occurred.  In  truth, two different

            issues  are  embraced in  this formula.    One is  the police

            perception  of danger,  judged by what  the officers  saw and

            knew at the time.   The other, a legal issue for  the courts,

            is whether  under the  Fourth Amendment the  perceived threat

            justified their behavior.   In this  case, what the  officers

            saw and knew is largely apparent from the record.  By a close

            margin, we think their perception justified their conduct.

                 The most important element is that the police had reason

            to believe that  Lopez had a sawed-off shotgun  nearby, which

            had  been used only shortly  before to threaten  Perry.  That

            Blackie had  done the threatening, not  Lopez, was apparently

            unknown to the  officers; if  they had known,  it could  only

            have  increased  their concern  since  Blackie  was still  at

            large.  Thus, the  police had ample basis for  believing that

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an extremely dangerous  weapon was lodged  close at hand  and

            should be recovered as promptly as possible.

                 It  is  hard  to  think  that  Lopez  himself  posed  an

            immediate danger.   Although one in  custody may yet  present

            risks, it  appears that Lopez  was handcuffed in  the bedroom

            and  that other officers were there  when the bathroom search

            occurred.   Still, the police had no assurance that Lopez was

            acting alone (in fact, he was not), or that the apartment was

            secure  (there  were actually  two  entrances  on the  second

            floor).  Officer  Tombs thought that  others might have  been

            with Lopez in  the second  floor apartment.1   The nature  of

            the  building--a  dilapidated,  multi-tenant  structure--lent

            further weight to a reasonable concern that the shotgun might

            be hidden nearby, recovered by others, and used again.

                 The nature of the search is also important.  This is not

            because  Lopez lacked "standing" as  to the bathroom area (we

            assume arguendo that he had standing), but because the degree
                   ________

            of  intrusion has  a  bearing on  the  reasonableness of  the

            police action.   It is one  thing to break into  and search a

            family home, another to frisk an arrested suspect, another to

            search a car, and  yet another to make a  protective sweep of

____________________

                 1Tombs testified at the suppression hearing that when he
            reached  the  second floor  in  pursuit  of Lopez,  he  heard
            within:    "Footsteps, fast  moving  footsteps.   I  couldn't
            determine how many people, how many, you know,  subjects were
            in  the house.   But  there was  footsteps running  about the
            house, inside the door."

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an already entered  building to uncover  other suspects.   In

            each  such  case,  the  extent  of  the  intrusion,  and  the

            proportionality   of    response   to   need,    inform   the

            constitutional judgment.

                 Here, the  intrusion, although not minimal, was limited:

            the  officer saw the opening in  the bathroom ceiling through

            an  open door, entered the empty room, and with little effort

            saw the  butt of the weapon.   There was no new  entry into a

            private residence;  the police were lawfully in the kitchen. 

            And  the  search  can be  justified  as  one  not merely  for

            evidence or even contraband  but for a dangerous weapon  in a

            building where others might gain access to it.  If the weapon

            were not  swiftly recovered, a search for  others outside the

            building might  be needed.   Thus,  this was  a proportionate

            search, limited  in its range,  specific in  its object,  and

            justified by exigent circumstances.

                 There is considerable case law on exigent  circumstances

            but, as one might expect in this area, the cases are  heavily

            dependant on the  facts.   The closest case  in this  circuit

            appears to be  Irizarry, upholding a warrantless search  of a
                           ________

            hotel  room to the extent  needed to assure  that a suspected

            armed "fourth person"  did not  remain within.   673 F.2d  at

            558.   Irizarry, in  which the  fourth person  was reasonably
                   ________

            believed to be  hiding in the room, is a  stronger case for a

            warrantless  search, but  other circuits  on facts  closer in

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strength to our  own have  found them strong  enough.   E.g.,
                                                                    ___

            United  States v. Queen, 847  F.2d 346, 353  (7th Cir. 1988);
            ______________    _____

            United States  v. McKinney,  477 F.2d  1184, 1186  (D.C. Cir.
            _____________     ________

            1973).2   We agree, cautioning  that our own  facts may press

            close to the outer limit of the Fourth Amendment.

                 Lopez'  other  challenge is  to  the  lawfulness of  the

            original  pursuit,  and  this  claim  can  be  answered  more

            swiftly.   If the original entry was unlawful, the seizure of

            the cocaine in the  bedroom might be suppressed as  the fruit

            of  the  poisonous tree,  see  generally Wong  Sun  v. United
                                      ___  _________ _________     ______

            States, 371 U.S. 471, 484 (1963), and the ban might extend as
            ______

            well (we need not decide the point) to the  evidence found in

            the  bathroom  and  a  volunteered statement  at  the  police

            station.  Lopez  says that the original  pursuit was unlawful

            because the attempted, and ultimately  successful, seizure of

            Lopez was not  based on probable cause to believe that he had

            committed a crime.

                 On the  contrary, the police  had a reasonable  basis to

            believe  that Lopez was the man who  had leveled a shotgun at

            Perry, even though in the  event it turned out to be  Blackie

            who  had  held  the  weapon.     Office  Tombs,  arriving  to

            investigate the crime, heard Perry describe an Hispanic male,

____________________

                 2McKinney,   peculiarly   on   point,    sustained   the
                  ________
            warrantless search  of a  hotel room--while the  occupant was
            out--after  a bellman  observed  a sawed-off  shotgun on  the
            table.

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shirtless and in camouflage pants, and saw a man fitting this

            description  standing near  the building  to which  Perry had

            pointed.   When  Tombs in  uniform called  on Lopez  to halt,

            Lopez instead  fled.   These  circumstances including  flight

            gave  Tombs reason  to believe  that Lopez  was the  culprit,

            United  States v.  Vasquez,  534 F.2d  1142, 145  (5th Cir.),
            ______________     _______

            cert. denied, 429  U.S. 979  (1976), and the  belief in  turn
            ____  ______

            justified  entry  under  the  "hot   pursuit"  doctrine,  see
                                                                      ___

            generally  United  States  v.  Santana, 427  U.S.  38,  42-43
            _________  ______________      _______

            (1976), and ultimately arrest.

                 In sum, the shotgun and cocaine evidence was permissibly

            seized  and  introduced  at  trial,  and  the  conviction  is

            therefore valid.   Accordingly, the judgment  of the district

            court is affirmed.
                     ________

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