United States v. Juan Castillo, Aka: Luis Hong Rojas, United States of America v. Antonio De La Renta

NELSON, Circuit Judge,

dissenting:

I dissent because I believe that the war-rantless search of De La Renta’s apartment was not justified by exigent circumstances. A protective sweep without a warrant may be justified by exigent circumstances only if officers reasonably believe that other people might be on the premises who could pose a danger or who could destroy evidence. See United States v. Whitten, 706 F.2d 1000, 1014-16 (9th Cir.1983). The officers may not rely on speculation about what circumstances might occur. Rather, they must be able to articulate facts specific to the suspect or the scene of the arrest demonstrating a threat of violence or destruction of evidence before departing from the normal procedure of obtaining a warrant prior to the search. See United States v. Alvarez, 810 F.2d 879, 881 (9th Cir.1987); United *1089 States v. Spetz, 721 F.2d 1457, 1467 (9th Cir.1983); see also Arkansas v. Sanders, 442 U.S. 753, 759-60 , 99 S.Ct. 2586, 2590-91 , 61 L.Ed.2d 235 (1979). I do not believe that this case presented such exigent circumstances.

The majority intimates that the mild exigency test laid out in United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984), might apply to protective sweeps. Supra at 1079. McCon-ney, however, dealt only with the exigency required to excuse a minor violation of the knock and notice requirement, 18 U.S.C. § 3109 : officers’ failure, after knocking and identifying themselves, to await refusal of admittance before entering a home to execute valid search and arrest warrants. The mildly exigent circumstances necessary to justify that relatively minor intrusion on a suspect’s privacy and liberty is insufficient to excuse a warrantless search of a suspect’s home such as that which occurred in this case. We have long held that because a warrantless search is “presumptively unreasonable,” Payton v. New York, 445 U.S. 573, 586 , 100 S.Ct. 1371, 1380 , 63 L.Ed.2d 639 (1980), the government bears a heavy burden of demonstrating that exigent circumstances necessitate entry. “ ‘It is accepted ... that a search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of “exigent circumstances.” ’ ” Spetz, 721 F.2d at 1465 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474-75 , 91 S.Ct. 2022, 2042 , 29 L.Ed.2d 564 (1971)) (emphasis added). “These exceptions are to be ‘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.’ ” Id. (quoting Coolidge, 403 U.S. at 455 , 91 S.Ct. at 2032 ) (footnotes omitted) (emphasis added). “Mild” exigency does not meet this standard.

The police have failed to demonstrate that exigent circumstances justified the protective sweep in this case. They have not articulated specific reasons for believing that someone might be in De La Ren-ta’s apartment who could harm them. When asked at the suppression hearing why they conducted a protective sweep, the officers involved gave several answers, none of which seems to me sufficient. One officer stated that he believed a second person might be in the apartment because eleven days prior to the arrest an officer had seen another individual entering De La Renta’s apartment. The officer testified that he had no information about who this individual was, whether he had an arrest record, or whether he was armed. A second officer testified, when asked if he had any reason to believe anyone was in the apartment, “[w]e didn’t know at that time.” The same officer then explained that it is simply “standard procedure to do a protective sweep of the premises ... even if we don’t know someone is there, we do it in case somebody’s there, obviously.”

These statements are insufficient to support a reasonable inference of a threat to the officers’ safety. One cannot reasonably infer from witnessing someone once enter an apartment that the person will be present at any random time. The police had no reason to believe that Castillo frequented De La Renta’s apartment or that he was present on the day of the arrest.

Our cases have upheld protective sweeps only when police had specific reasons to believe that other individuals were present on the premises at the time of the arrest. See Whitten, 706 F.2d at 1016 (disallowing a protective sweep because one officer testified that he “did not know whether anyone else was in the room,” and because the officers had “no reason to suspect that any accomplice was in the vicinity.”). For example, in United States v. Valles-Valencia, 811 F.2d 1232, 1236 (9th Cir.), amended, 823 F.2d 381 (1987), we found a protective sweep supported because the police, “having seen two men ‘running into the brush’ ... reasonably ... believ[ed] that two accomplices remained at large somewhere on the premises.” Similarly, in United States v. Alfonso, 759 F.2d 728, 742 (9th Cir.1985), we permitted a protective *1090 sweep of a hotel room because several suspects were at large, the hotel manager told the police that several people were in the hotel room, and the police heard “scuffle” noises coming from the bathroom. See also United States v. Gilbert, 774 F.2d 962, 964 (9th Cir.1985) (approving a protective sweep because officers believed that defendant was in the company of an armed fugitive, a car not belonging to the defendant was parked in the driveway, and the officers watching the trailer saw movement inside). The facts from which the officers infer a probability of danger must be specific to the suspect or to the scene of the arrest. See Spetz, 721 F.2d at 1467 (holding illegal a sweep search following an arrest, when the arrestee had no known confederates, the police could survey all entrances and exits, and “[m]ost significantly, the agents knew of no weapons connected with any of the individuals arrested or [with] the residence ” (emphasis added)).

In this case, the officers had seen no one else near the apartment for eleven days, and they had no reason to believe that the person seen eleven days before had any criminal connections. They did not see or hear any movement in the apartment prior to beginning the protective sweep other than sounds made by De La Renta. They did not note any signs of another person's presence, such as a car not belonging to De La Renta. In short, they had no articula-ble reason to believe that anyone besides De La Renta was in the apartment at the time of the arrest.

The majority suggests that several facts not articulated by the officers constitute specific articulable reasons for the protective sweep. First, the majority states that the officers could reasonably infer that De La Renta “was well known to the DEA as a cocaine dealer in the Los Angeles area.” Supra at 1080 (emphasis added). The record, establishing that Agent Lee knew that De La Renta had no criminal record of any kind and was not listed in the DEA’s computerized file of intelligence information regarding suspected cocaine dealers from all over the world, supports the opposite conclusion. Second, the majority asserts that the officers could reasonably infer from the facts known to them prior to the entry of De La Renta’s apartment that De La Renta was a “principal member” or kingpin of a conspiracy to sell cocaine. Id. at 1080-81. The majority bases its conclusion on its belief that De La Renta was “the Colombian national” of whom Malpezzi and Leon previously had spoken to Agent Lee. Again, the record fails to support this conclusion. Lee was told that the Colombian national would meet him; Lee met with Malpezzi and an unidentified person, whom Lee said he assumed to be the Colombian national. It was the Colombian national who was identified as a cocaine dealer in the Los Angeles area. Lee had been told that he was to show the buy money to the Colombian at the meeting, but De La Renta didn’t say anything at this meeting and left soon after Lee showed up. Lee later showed the money to Leon. Lee assumed incorrectly on the basis of this interaction that De La Renta was the Colombian.

Third, the majority relies on the government’s contention that the mention of Mal-pezzi’s bodyguard — Garcia—in Lee’s affidavit in support of the arrest warrant reasonably led the officers to believe that Garcia might be waiting in De La Renta’s apartment to kill them. This conclusion is the sort of speculation that I believe is not permitted as support for a warrantless search. See United States v. Driver, 776 F.2d 807, 810 (9th Cir.1985) (stating that the government’s burden of demonstrating exigency “is not satisfied by leading a court to speculate about what may or might have been the circumstances.”). Lee’s affidavit indicated to police that Mal-pezzi, not De La Renta, had hired Garcia as a bodyguard. It also indicated that the bodyguard was hired only for specific drug transactions. The police had never seen this bodyguard in the vicinity of De La Renta’s apartment. They had no reason to believe that he would be there. Malpezzi’s statement regarding Garcia therefore is not an articulable fact from which the police might reasonably infer that other dangerous individuals would be present.

*1091 Finally, the majority relies on the police officers’ expertise in cocaine cases, and suggests that because cocaine dealers tend to carry weapons and resort to violence, the suspicion of danger was justified. I cannot agree. The exigent-circumstances exception to the search warrant requirement mandates specific facts leading the police to fear for their safety. If the general fear that cocaine dealers are violent could fulfill this requirement, we essentially would create a cocaine exception to the search-warrant requirement. Our cases have not yet supported such a broad exception. See, e.g., United States v. Hatcher, 680 F.2d 438, 444 (6th Cir.1982) (finding in a heroin case that the protective sweep was not justified merely because the subject of drugs was involved and warning that this reasoning would “permit wholesale abrogation of the Fourth Amendment reasonableness requirement.”).

This court previously has recognized the danger of permitting a blanket exception to the fourth amendment without requiring specific circumstances justifying a finding of exigency. Such an exception endangers the constitutional framework. We stated in United States v. Flickinger, 573 F.2d 1349, 1355 (9th Cir.1978):

[W]e are not unsympathetic with the government’s premise that “any time agents seek to effect an arrest or search of a residence, with or without a warrant, the possibility that persons inside might have access to weapons is very real and sometimes critical.” Followed to its logical conclusion, however, the government’s contention would obviate the necessity for a warrant in any arrest in a residence, because every such arrest would involve the potential use of weapons.

Following the insight offered by the Flick-inger panel, I believe that we should not permit the government to obviate the need for a search warrant in every cocaine-related arrest. Although we must remain sympathetic to the dangers of cocaine investigations, and although the presence of cocaine might increase officers reasonable fears if they have other reasons to believe individuals are present in a residence, a blanket exception to the exigency requirement in all cocaine cases would abrogate the fourth amendment rights of all cocaine suspects.

In this case, I believe that the only artic-ulable reason for conducting the protective sweep was stated clearly by one of the officers: it is “standard procedure to do a protective sweep ... even if we don’t know someone is there, we do it.” That protective sweeps have become standard procedures suggests that abrogating criminal defendant’s fourth amendment rights has also become standard procedure. The Supreme Court repeatedly has held that war-rantless searches are presumptively unreasonable, see, e.g., Payton v. New York, 445 U.S. 573, 586 , 100 S.Ct. 1371, 1380 , 63 L.Ed.2d 639 (1980), and that exigent circumstance exceptions must be “jealously and carefully drawn.” See Coolidge v. New Hampshire, 403 U.S. 443, 445 , 91 S.Ct. 2022, 2027 , 29 L.Ed.2d 564 (1971). If we are to maintain the constitutional presumption by drawing exceptions jealously, then police must articulate a more concrete reason for protective searches than that it is standard procedure in cocaine arrests.

The protective sweep in this case was especially unjustified because De La Renta was arrested in his doorway, where he was quickly handcuffed. The officers have stated no reason for not removing De La Renta from the premises immediately without ever entering his apartment. Cf. Vale v. Louisiana, 399 U.S. 30, 33-34 , 90 S.Ct. 1969, 1971-72 , 26 L.Ed.2d 409 (1970); Whitten, 706 F.2d at 1016 (stating that “if a search is to be upheld as incident to an arrest, the arrest must take place inside the house.”). An arrest accomplished outside the premises permits a protective sweep only in the rare circumstance that the arresting officers have a specific reason to believe that their safe retreat is not possible. Compare United States v. Astorga-Torres, 682 F.2d 1331 (9th Cir.1982) (finding protective sweep justified because officers had been fired upon from several locations in the house before arresting the defendant as he emerged) with United States v. Spetz, 721 F.2d 1457 (9th *1092 Cir.1983) (finding protective sweep unjustified because suspects were unarmed when they were arrested outside the house). Even if the circumstances in this case raise articulable fears that would justify a protective sweep to protect officers inside the apartment, because the officers needn’t have entered the apartment at all, the protective search was not justified. See Driver, 776 F.2d at 810 (stating that agents would not have feared for their safety if they had not first impermissibly entered the building).

Because I believe that the protective sweep violated the constitutional warrant requirement, I would reverse the convictions, and would exclude evidence seized during the sweep from any retrial. I would also exclude any evidence seized later during the search based on consent, because in this case, De La Renta’s consent to search came as the direct result of exploiting the results of the protective sweep. See Brown v. Illinois, 422 U.S. 590, 599 , 95 S.Ct. 2254, 2259 , 45 L.Ed.2d 416 (1975). Even assuming that the consent was voluntary, the permission came within minutes of the illegal search, and no intervening circumstances served to attenuate the taint. See id. at 603-04 , 95 S.Ct. at 2261-62 ; United States v. Perez-Esparza, 609 F.2d 1284, 1289 (9th Cir.1979). Because the government has not demonstrated attenuation, see United States v. Taheri, 648 F.2d 598, 601 (9th Cir.1981), I would exclude evidence seized after the consent.