USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1132
UNITED STATES,
Appellee,
v.
ARNALDO LOPEZ WILSON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Louis Rivera-Gonzalez, with whom Joseph C. Laws, Jr. was on brief
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for appellant.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom
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Guillermo Gil, United States Attorney, was on brief for appellee.
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September 29, 1994
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CAMPBELL, Senior Circuit Judge. Defendant-
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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
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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
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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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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
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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
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(1st Cir. 1991).
A. Applicable law
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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
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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.
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Prouse, 440 U.S. 648, 99 S. Ct. 1391 (1979)."
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In Prouse, the Delaware Supreme Court had held that
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police use of discretionary "spot checks" of automobiles
violated both the federal and state constitutions. Prouse
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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
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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,
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L pez did not thereafter mention Prouse, the Puerto Rico
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Constitution, or even any Puerto Rico cases in his brief and
oral argument before the district court.
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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.
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1993), cert. denied, 114 S. Ct. 1410 (1994); see, e.g.,
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Freije v. United States, 386 F.2d 408, 411 n.7 (1st Cir.
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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,
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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.
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Sutherland, 929 F.2d 765, 769 (1st Cir.), cert. denied, 112
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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.
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at 769, quoting United States v. Little, 753 F.2d 1420, 1434
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(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
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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
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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,
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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
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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
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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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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.
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Baldacchino, 762 F.2d 170, 175 (1st Cir. 1985). "[T]he
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credibility of witnesses is particularly within the
competence of the trial court." Id. L pez argues that,
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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
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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
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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
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States v. Eubanks, 876 F.2d 1514, 1516 (11th Cir. 1989).
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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
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could lawfully enter the apartment without having a
warrant.3
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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
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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
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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.
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1980). "The inquiry is necessarily 'fact-based.'" United
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States v. Donlin, 982 F.2d 31, 34 (1st Cir. 1992). Factors
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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.
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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
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Hampshire, 403 U.S. 443, 468 (1971). Thus Agent Gonzalez's
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"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,
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sees contraband or evidence in plain view that is unrelated
to the original justification for entry. See Arizona v.
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Hicks, 480 U.S. 321, 325-26 (1987).
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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
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F.2d 34, 36 (1st Cir. 1988). See also Baldacchino, 762 F.2d
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at 176-77; United States v. Edwards, 602 F.2d 458 (1st Cir.
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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,
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298-99 (1967). See, e.g., United States v. Lopez, 989 F.2d
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24 (1st Cir.), cert. denied, 114 S. Ct. 201 (1993); Donlin,
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982 F.2d 31; United States v. Irizarry, 673 F.2d 554, 558
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(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
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Cir. 1991), cert. denied, 112 S. Ct. 1776 (1992); Gerry, 845
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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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