
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.                                         -2-                                          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                                         -3-                                          3            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                                         -4-                                          4            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.                                         -5-                                          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                                          __________                                         -6-                                          6            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                                         -7-                                          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                                         -8-                                          8            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).                                         -9-                                          9                 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).            _____                                         -10-                                          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                                         -11-                                          11            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                                         -12-                                          12            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.                      ________                                         -13-                                          13
