United States v. Lopez Wilson

• Court: Court of Appeals for the First Circuit
• Decided: September 29, 1994
• Docket: 94-1132
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-1132

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                ARNALDO LOPEZ WILSON,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jaime Pieras, Jr., U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

            Louis Rivera-Gonzalez, with whom Joseph C. Laws, Jr. was on brief
            _____________________            ___________________
        for appellant.
            Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom
            _______________________
        Guillermo Gil, United States Attorney, was on brief for appellee.
        _____________

____________________

                                  September 29, 1994
                                 ____________________

CAMPBELL,   Senior   Circuit  Judge.     Defendant-
                                  _______________________

            appellant Arnaldo L pez Wilson1  and two others were indicted

            in  the United  States  District Court  for  the District  of

            Puerto Rico for having knowingly and willfully possessed with

            intent  to distribute  heroin, in  violation of  21 U.S.C.   

            841(a)(1) and 18 U.S.C.   2.  After the district court denied

            a  motion in  limine to  suppress evidence,  L pez  entered a

            conditional plea of guilty, reserving his right to appeal the

            court's evidentiary  ruling.  L pez duly appealed, and we now

            affirm the district court's denial of the motion to suppress.

I.   Factual Background
                 __________________

                      After  a hearing  on  the motion  to suppress,  the

            district court found the following facts:

                      On  May  15,  1993,  agent  Wilfredo  Gonzalez  and

            another  agent  of the  Puerto  Rico  Police Department  were

            patrolling  the  Los Lirios  Housing  Project  in Cupey,  Rio

            Piedras, in  an unmarked  car.   Agent  Gonzalez noticed  two

            cars, one closely following the other, that fit a description

            provided by  a reliable  confidential informant of  cars that

            had  been  involved  in  illegal  drug  transactions  at  the

            project.  The agents followed the cars.  As they drove, Agent

____________________

            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.

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                                          2

Gonzalez  heard  people  shouting  "Agua!,  agua!"  ("Water!,

            water!"):  a signal,  according  to Agent  Gonzalez, used  by

            those involved in  drug transactions to advise  others of the

            presence  of police.    The  two  cars  parked  in  front  of

            apartment building number fifteen  in the project, a building

            well-known  among law  enforcement  officials as  a situs  of

            illegal  drug sales, and a  total of five individuals hastily

            exited the cars and walked toward the building.

                      As he  watched, Agent  Gonzalez saw an  object fall

            from a yellow plastic bag carried by one of the five.  As the

            individuals entered a second-floor apartment in the building,

            Agent  Gonzalez left the patrol car and picked up the object,

            which  he determined  to be  a package  containing controlled

            substances.  Agent Gonzalez called for reinforcements to help

            with the  arrest; in five  minutes ten officers  arrived, and

            the  police proceeded  to the  second floor,  knocked  on the

            door,  and  asked  the  persons   inside  to  step  out   for

            identification.    As  the  five  individuals  exited,  Agent

            Gonzalez, from outside the  apartment, saw the yellow plastic

            bag  lying on  top of  a table  within.   After all  five had

            exited  and no  one  else remained  in  the apartment,  Agent

            Gonzalez entered the apartment to retrieve the bag, found  it

            in  tatters, looked inside it,  and saw that  it held several

            hundred small  packages like the  one dropped in  the street.

            Again,  he  determined  that  the  packages  held  controlled

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substances.  The bag was seized and defendant and others were

            arrested.

                      The  district  court  found  that  the  Los  Lirios

            Housing   Project  "is   well-known  among   law  enforcement

            officials as infected with  illegal drug dealing activity and

            as  being effectively  under the  control of  well-armed drug

            organizations  who   have  often  shot  at   law  enforcement

            officials  in the past," and that the officers had all feared

            for their lives while  at the project.  The  court determined

            that to wait  for a  warrant authorizing seizure  of the  bag

            would  have placed the officers in danger    forcing them "to

            re-enter or to remain in  the dangerous building after making

            a visible and unpopular  arrest in the project"     and would

            have  risked loss or destruction of the evidence at the hands

            of drug dealers had police left the building.

II.  Analysis
                 ________

                      L pez moved to suppress the heroin, arguing that it

            was the fruit of an unconstitutional search and seizure.  The

            district court  upheld the warrantless seizure  of the heroin

            under  both  the  "plain view"  and  "exigent  circumstances"

            exceptions  to  the  warrant  requirement.    We  review  the

            district court's  factual findings only for  clear error, but

            exercise  plenary  review  over  the  district  court's legal

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conclusions.  United  States v.  Sanchez, 943  F.2d 110,  112
                          ______________     _______

            (1st Cir. 1991).  

A.   Applicable law
                      ______________

                      L pez  argues that  the  district  court  erred  in

            failing   to  apply   the  standards   of  the   Puerto  Rico

            Constitution  to  its analysis  of  the  search and  seizure.

            L pez did not  raise this  issue below.2    However,  counsel

            for one  of his  codefendants argued, without  mentioning the

            Puerto  Rico constitution,  that  the court  must apply  "the

            standards applicable  to Police  of Puerto Rico  officers and

            not federal officers.   Because  if not, the  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.

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                                          5

deputizing or granting federal  authority to Police of Puerto

            Rico officers, which cannot be done under the Constitution."

                      An  argument made  by  one defendant  may sometimes

            suffice  to preserve  an issue for  appeal by  a codefendant,

            United States  v. Sanchez-Sotelo, 8  F.3d 202, 210  (5th Cir.
            _____________     ______________

            1993),  cert. denied,  114  S. Ct.  1410  (1994); see,  e.g.,
                    ____________                              ___   ____

            Freije  v. United  States, 386  F.2d 408,  411 n.7  (1st Cir.
            ______     ______________

            1967).  But  it seems  doubtful to us  that the argument  now

            advanced was  sufficiently  articulated below  by  anyone  to

            survive  on appeal.  See United States v. Slade, 980 F.2d 27,
                                 ___ _____________    _____

            31 (1st Cir. 1992) ("a party  is not at liberty to articulate

            specific  arguments  for  the  first time  on  appeal  simply

            because the  general issue  was before the  district court").

            Even, however, if  the argument  is now open,  it is  without

            merit.   It  is  well established  that "federal  law governs

            federal  prosecutions in  federal court."   United  States v.
                                                        ______________

            Sutherland, 929 F.2d 765, 769  (1st Cir.), cert. denied,  112
            __________                                 ____________

            S.  Ct.  83  (1991).   "'Evidence  obtained  in  violation of

            neither  the Constitution  nor federal  law is  admissible in

            federal court proceedings without regard to state law.'"  Id.
                                      ____________________________    ___

            at  769, quoting United States v. Little, 753 F.2d 1420, 1434
                             _____________    ______

            (9th Cir. 1984) (emphasis in original).  This is so even when

            the  evidence   is  obtained  in   the  course  of   a  state

            investigation.   United States v. Mitro,  880 F.2d 1480, 1485
                             _____________    _____

            n.7 (1st Cir. 1989).   Though Sutherland leaves room  for the
                                          __________

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court to exercise its  supervisory powers to exclude evidence

            where  federal officials  seek to  capitalize on  an "extreme

            case  of flagrant abuse of  the law" by  state officials, 929

            F.2d at 770, we find no such circumstance here.

                 B.   Probable cause
                      ______________

                      Because the  five individuals exited  the apartment

            upon  the  officer's  request  and  were  thereupon  arrested

            outside  the  apartment, entry  into  the  apartment was  not

            justified  as incident to the arrest.  See Vale v. Louisiana,
                                                   ___ ____    _________

            399 U.S. 30, 33-34 (1970) ("If  a search of a house is  to be

            upheld  as incident to an arrest, that arrest must take place

            inside  the house")  (emphasis in  original).   To cross  the
            ______

            apartment's  threshold,  Agent Gonzalez  needed  (1) probable

            cause to believe  that contraband or evidence  would be found

            inside, and (2) exigent circumstances justifying an exception

            to  the warrant  requirement, allowing  him to  enter without

            first  obtaining a warrant.  United States v. Moore, 790 F.2d
                                         _____________    _____

            13, 15 (1st Cir. 1986).

                      L pez contends that Agent Gonzalez's testimony that

            a package of heroin  fell from the yellow bag  was inherently

            incredible.   L pez notes that  the dropped evidence  was not

            mentioned  in  the  initial  police reports  (though  it  was

            mentioned in  Agent Gonzalez's sworn statement  the next day,

            and corroborated in the sworn statement of a  fellow officer,

            also made the next day), and that the police never identified

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                                          7

the  carrier of  the  bag.   Had  Agent Gonzalez  not seen  a

            package of  what was found to be heroin fall from the bag, he

            would  not have  had probable  cause either  to believe  that

            there  was  incriminating evidence  in  the  apartment or  to

            arrest the defendant.  (The arrest is not challenged here.)

                      We  are  bound  by  the  district  court's  factual

            findings unless they are clearly erroneous.  United States v.
                                                         _____________

            Baldacchino, 762  F.2d  170, 175  (1st  Cir. 1985).    "[T]he
            ___________

            credibility   of  witnesses   is   particularly  within   the

            competence  of the  trial court."   Id.   L pez  argues that,
                                                ___

            under  Puerto Rico case  law, a special  standard of rigorous

            scrutiny applies to testimony of  dropped evidence, as it may

            be so  easily and conveniently fabricated.   However, special

            standards  of Puerto  Rico  law do  not  apply in  a  federal

            prosecution,  supra.    The  district  court's  finding  that
                          _____

            evidence  was dropped is amply  supported by the evidence and

            is by no means  clearly erroneous.  Since the  dropped packet

            contained  heroin,  and since  defendant  and his  companions

            carried the yellow bag from which the packet had dropped into

            the apartment, the  agents had probable cause both  to arrest

            defendant and to search the apartment.

                      Defendant,  of  course   cannot  object  to   Agent

            Gonzalez's  viewing of  the dropping  of the  packet and  his

            subsequent examination  of the dropped  packet, resulting  in

            his  finding  that  it  contained  heroin.    Agent  Gonzalez

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observed  this  evidence before  any intrusion  had occurred.

            "If  the  inspection  by  police  does  not  intrude  upon  a

            legitimate  expectation  of  privacy,  there  is  no 'search'

            subject  to the  Warrant Clause."   Illinois v.  Andreas, 463
                                                ________     _______

            U.S.  765, 771 (1983).   Because defendant could  have had no

            reasonable expectation  of privacy in the  packet dropped and

            left behind  in a public street,  Agent Gonzalez's inspection

            of it was not a search for Fourth Amendment purposes.  United
                                                                   ______

            States v.  Eubanks, 876  F.2d 1514,  1516  (11th Cir.  1989).
            ______     _______

            This incident gave the officers probable cause to believe the

            yellow  bag  contained drugs,  and  since  defendant and  his

            accomplices  were seen  entering the  apartment  carrying the

            bag, which  was later viewed inside from  without, the police

            had  probable cause  to seize  the yellow  bag provided  they
                                                           ________

            could  lawfully  enter   the  apartment   without  having   a

            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
            for their safety justified a warrantless search for the bag,
            it is not critical whether the bag was left in plain view. 
            The officers could have searched for the bag even if it had
            not been in plain view.  See, e.g., Archibald v. Mosel, 677
                                     ___  ____  _________    _____
            F.2d 5 (1st Cir. 1982) (search of apartment supportable where
            exigent circumstances existed and police had reasonable
            belief that suspect was inside, though he was not ultimately
            found therein).

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C.   Exigent Circumstances
                      _____________________

                      In   determining  whether  there   is  an  exigency

            sufficient to justify a  warrantless search and seizure,4 the

            test  is "whether  there is such  a compelling  necessity for

            immediate action as will  not brook the delay of  obtaining a

            warrant."  United States v. Adams, 621  F.2d 41, 44 (1st Cir.
                       _____________    _____

            1980).   "The inquiry  is necessarily 'fact-based.'"   United
                                                                   ______

            States  v. Donlin, 982 F.2d 31, 34  (1st Cir. 1992).  Factors
            ______     ______

            we  must  consider  include  the gravity  of  the  underlying

            offense, whether a delay would pose a threat to police or the

            public safety, and  whether there is a great  likelihood that

            evidence will be destroyed  if the search is delayed  until a

            warrant can be obtained.  Baldacchino, 762 F.2d at 176.
                                      ___________

____________________

            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).
            _____

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                                          10

Here,  the district court found sufficient exigency

            in the  fact  that the  housing  project, and  in  particular

            building fifteen, was known to be "infected with illegal drug

            dealing  activity" and  controlled by armed  drug-dealers who

            had shot at law enforcement officers in the past--that it was

            a  "well-armed camp  where  illegal  drug transactions  occur

            every  day."  Further, the  shouts of "Agua!,  agua!" and the

            fact  that the arrest  was made  in public  "probably alerted

            other drug dealers in  the building, possibly confederates of

            the  men arrested, to the  presence of police  officers."  To

            obtain a warrant, the district court found the officers would

            have  had  either to  risk  destruction  of the  evidence  by

            withdrawing from the scene pending the issuance of a warrant,

            or  risk their  own safety  by remaining  at the  building to

            prevent destruction of the evidence.

                      Neither choice was compelled by the Warrant Clause.

            "The  possibility   that  evidence  will   be  destroyed   by

            confederates who have discovered  the constable is closing in

            is a well-recognized exigency."  United  States v. Gerry, 845
                                             ______________    _____

            F.2d 34, 36 (1st Cir. 1988).  See  also Baldacchino, 762 F.2d
                                          _________ ___________

            at 176-77; United States  v. Edwards, 602 F.2d 458  (1st Cir.
                       _____________     _______

            1979).   Because, as found, the police  activity was publicly

            observed  and  occurred  in  a location  controlled  by  drug

            dealing organizations, and because the shouts of "Agua!" gave

            the officers reason  to believe that  other dealers had  been

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notified  of the  police presence,  the district  court could

            reasonably determine  that if the officers  withdrew from the

            building, any evidence would disappear before they returned.

                      We think  the court was also  entitled to conclude,

            in light of  its other supported findings,  that the officers

            would  have placed  their safety,  as well  as the  safety of

            members  of  the  public, at  risk  had  they  stayed at  the

            building until a warrant was obtained.  "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, 387  U.S. 294,
                                        ______     ______

            298-99 (1967).  See,  e.g., United States v. Lopez,  989 F.2d
                            ___   ____  _____________    _____

            24 (1st Cir.), cert.  denied, 114 S. Ct. 201  (1993); Donlin,
                           _____________                          ______

            982 F.2d 31;  United States  v. Irizarry, 673  F.2d 554,  558
                          _____________     ________

            (1st  Cir. 1982).  The district court found that the building

            was an "armed camp"  controlled by drug dealers who  had shot

            at law officers in  the past, and that "by  screaming 'Agua!,

            agua!'   members  of  the  drug  trafficking  community  were

            alerting other members  of the community  to the presence  of

            law   enforcement   officers  in   the   area."     In   such

            circumstances,  the officers  could  have  believed that  any

            attempt to secure the premises pending issuance of a warrant,

            see,  e.g., United States v. Almonte, 952 F.2d 20, 21-22 (1st
            ___   ____  _____________    _______

            Cir.  1991), cert. denied, 112 S. Ct. 1776 (1992); Gerry, 845
                         ____________                          _____

            F.2d  34, would  have exposed them  to the  risk of  harm.  A

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shooting incident or a  struggle in such an  atmosphere could

            have  resulted in  injury  or  death  to  the  police  or  to

            bystanders.

                      Because  withdrawal  by  the  officers  would  have

            likely led to the loss of the evidence, while their continued

            presence would  have put their  personal safety at  risk, the

            court was entitled to determine, as it did, that the officers

            were justified by exigent  circumstances to seize the plastic

            bag without first obtaining a warrant.  

                      Affirmed.
                      ________

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