          United States Court of Appeals
                     For the First Circuit


No. 16-2009

                         UNITED STATES,

                            Appellee,

                               v.

                     HECTOR SERRANO-ACEVEDO,

                      Defendant, Appellant.



No. 16-2049

                         UNITED STATES,

                            Appellee,

                               v.

                     VIRGILIO DIAZ-JIMENEZ,

                      Defendant, Appellant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

                   Lynch, Kayatta, and Barron,
                         Circuit Judges.
     Rafael F. Castro Lang for appellant Hector Serrano-Acevedo.
     James L. Sultan, with whom Kerry A. Haberlin and Rankin &
Sultan were on brief, for appellant Virgilio Diaz-Jimenez.
     Nicholas W. Cannon, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.


                          June 13, 2018
           LYNCH, Circuit Judge.        We address in this case important

questions of Fourth Amendment protections in a person's home.                   As

we did in United States v. Delgado-Pérez, 867 F.3d 244 (1st Cir.

2017), we conclude that the government overstepped the mark and

that a motion to suppress the fruits of a warrantless search of a

defendant's home in Puerto Rico should have been granted.

           Virgilio    Diaz-Jimenez      ("Diaz")         and   Hector    Serrano-

Acevedo ("Serrano"), after a joint trial, were found guilty of

armed   bank    robbery,   in   violation      of    18    U.S.C.   § 2113,    and

possession of a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924.                      Both defendants

challenge their convictions, arguing that key portions of the

evidence introduced against them were improperly admitted.

           Diaz argues that the government's warrantless search of

his home violated his Fourth Amendment rights and that the district

court   erred   by   denying    his   motion    to    suppress      the   evidence

uncovered during that search. Finding that the government's search

does not fit within the protective sweep or voluntary consent

exceptions under Fourth Amendment doctrine, the only even arguably

relevant exceptions to the warrant requirement, we hold that the

search of Diaz's home was unconstitutional. The evidence uncovered

during that search was central to the prosecution's case at trial,

rendering this error prejudicial.         We vacate Diaz's conviction and

remand for further proceedings consistent with this opinion.


                                      - 3 -
           Serrano,    the   other     defendant,     argues    that    several

testimonial     statements   made     during   the   trial,    some    of   which

referenced statements made by a confidential informant who did not

testify, were impermissible hearsay testimony.             If there was any

error, it was harmless, so we affirm Serrano's conviction.

                                 I.    Facts

           We    review   the   district       court's   "legal   conclusions

involved in denying a motion to suppress the evidence de novo and

its findings of fact for clear error."           Delgado-Pérez, 867 F.3d at

250 (quoting United States v. Marshall, 348 F.3d 281, 284 (1st

Cir. 2003)). "On a motion to suppress evidence seized on the basis

of a warrantless search, the presumption favors the defendant, and

it is the government's burden to demonstrate the legitimacy of the

search."    Id. (quoting United States v. Winston, 444 F.3d 115,

123-24 (1st Cir. 2006)).

           Two armed men entered the Oriental Bank in San Lorenzo,

Puerto Rico around 8:30 AM on June 17, 2013.               The first gunman

brandished his firearm and ordered the bank's security officer to

"kneel down."     The robbers told everyone in the bank to get on the

ground.    The second gunman then ordered the bank's employees to

open the vault.    After the bank employees turned over the money in




                                      - 4 -
the vault area to the robbers, the gunmen left the bank and drove

away in a white van.

           The Puerto Rico Police Department provided a description

of the van and its likely escape routes over the police radio.

Officer Hector Ortíz-Alicia, hearing this, drove towards one of

the possible escape routes.        Once in the area, he saw a white van

stopped by the side of the road.             Ortíz-Alicia testified at trial

that an armed individual got out of the van and, despite Ortíz-

Alicia's orders to stop, fled into a grassy area nearby.                      Other

testimony at the suppression hearing was that two people were seen

leaving the van.

           Ortíz-Alicia requested backup.               Police searched the area

with the help of a helicopter, but were unable to find the armed

individual.    The FBI and the Immigration and Customs Enforcement

("ICE") Task Force reported to the scene. Agent Aristedes Vázquez-

Díaz from the ICE Task Force reported to Agent Félix Rivera from

the FBI that he had been contacted by an informant who had

information about the robbery.

           Shortly    thereafter       and     at   a   different    place,   Agent

Rivera   and   one   or   more   ICE    Task    Force     officers    met   with   a

confidential source who provided the nicknames -- El Domi and El

Músico -- and cell phone numbers of two people who the source said

were responsible for the robbery.              The source stated that he had

been in contact with the two robbers since the robbery and that


                                       - 5 -
the robbers were hiding in nearby mountainous terrain and were

waiting for the police helicopter to leave.       The source stated

that the robbers were expecting the source to pick them up.   Agent

Rivera had been planning to use this information to arrest the

robbers at the pickup point.   However, around 1:00 or 1:30 PM, the

robbers notified the source that they had left their hiding place

and no longer needed to be picked up.   This information was passed

on to law enforcement.

            Law enforcement officers contacted the phone company in

order to track the location of the robbers' two cell phones.    One

of the cell phones eventually became stationary in a rural,

residential area in Barrio Borinquen.     Between 3:30 and 4:30 PM,

law enforcement officers traveled to that location, stopping at a

crossroads close to the three-story home where they had been told

the cell phone was located.    The home was large and had a pool and

a fence.     Suspecting that the robbers were armed, Agent Rivera

called in a SWAT team.

            As the law enforcement officers waited at the crossroads

for a SWAT team to arrive before approaching the residence,

defendant Serrano drove through the crossroads in a blue Mitsubishi

Nativa.    Agent Vázquez-Díaz and Agent Julio Sánchez-Martínez, also

from the ICE Task Force, recognized Serrano as El Músico, the

person who the confidential informant had said was one of the

robbers.    Vázquez-Díaz had seen Serrano driving a blue Mitsubishi


                                - 6 -
Nativa before.          Sánchez-Martínez and Vázquez-Díaz gestured to

Serrano to stop and blocked the Nativa's path with their patrol

car.

              The    agents     got    out   of   the   patrol    car,    approached

Serrano's car, and saw a gun in it.               The agents twice told Serrano

not to reach for the gun, Serrano eventually complied, and the

agents arrested him.          Serrano admitted that the firearm was his.

The agents recovered a dark hat and a black jacket from the

vehicle.      FBI agents later recovered a pair of blue and black Nike

tennis shoes from inside the car and a bag full of cash hidden in

the car's air filter.           After the arrest of Serrano, the monitored

cell phone was still located at the three-story house.

              The    evidence    at    the   suppression    hearing      about    what

happened thereafter at the house was based on the testimony of the

FBI agent in charge, Agent Rivera, who was not actually at the

home initially.        Around thirty minutes after Serrano's arrest, the

SWAT time arrived at the crossroads near the large three-story

home where the cell phone was said to be located.                        While Agent

Rivera waited behind, the SWAT team approached the home, knocked

on the door, and heard a toilet flushing and people talking inside

the home.      The SWAT team opened the door and called to the people

inside the home, but remained outside.                  Diaz's wife came out of

the    home   first    and    was     detained,   and   Diaz     came    out   shortly

thereafter.         Diaz was immediately arrested and was at some point


                                         - 7 -
handcuffed (the record does not reveal whether Diaz's wife was

also handcuffed). SWAT team then, after Diaz was arrested outside,

entered and did a sweep of the home.

          During this sweep, the SWAT team "went to different

places, and they saw money on top of the bed, they saw money inside

the toilet."   After the SWAT team had come outside following the

search, they reported what they had seen to Agent Rivera, who by

then had arrived.   Agent Rivera then asked for Diaz's consent to

conduct a search of his home.   Diaz was arrested and in handcuffs

at the time.   Agent Rivera testified that Diaz consented verbally

but refused to sign a form to that effect.      The FBI then did a

subsequent search of the house and recovered around $24,000 in

cash and a box for a pistol.    Diaz's wife consented to the search

after it had occurred, and did so in writing.   The cash found was

bound with initialed bands, and bank tellers at the Oriental Bank

later confirmed that their initials were on the bands.

          Diaz filed a motion to suppress the evidence recovered

during the warrantless search of his home.    The magistrate judge

held a hearing on the motion.   Agent Rivera was the prosecution's

only witness at that hearing.    Agent Rivera did not testify that

he was the one who ordered the SWAT team to perform the sweep, but

he provided reasons for why he believed the search was justified.

The prosecution primarily argued that the search was permissible

because the officers were in "hot pursuit" of Diaz at the time.


                                - 8 -
It did not even attempt to justify the search as a protective sweep

meant to protect the safety of the officers.

            Diaz, in opposition, argued that there was no "hot

pursuit" because the SWAT team's search was conducted more than

eight hours after the robbery and, further, he had already been

placed under arrest before the sweep.                The magistrate judge

recommended that the district court deny Diaz's motion, based on

acceptance of the prosecution's hot pursuit theory.                The district

court adopted that recommendation.

            Evidence obtained during the search of Diaz's home was

used at trial by the prosecution.             A jury found Diaz and Serrano

guilty of armed bank robbery and use of a firearm in the commission

of   a   federal   felony.      Diaz    was     sentenced     to   192   months'

imprisonment and five years' supervised release.                   Serrano was

sentenced to 180 months' imprisonment and five years' supervised

release.

                                II.    Merits

A.   Diaz

            Diaz   challenges   the     district    court's    denial    of   his

motion to suppress the evidence recovered from his home, arguing

that the search violated his Fourth Amendment rights and that the

admission of the evidence recovered in that search was prejudicial.

The prosecution, on appeal, attempts to justify the search under

the protective sweep doctrine.         We bypass the issue of whether the


                                      - 9 -
prosecution waived its protective sweep exception argument because

the argument fails on its merits.

           The Fourth Amendment forbids unreasonable searches and

seizures, and a search of an individual's home "is generally not

reasonable without a warrant issued on probable cause."                   Maryland

v. Buie, 494 U.S. 325, 331 (1990).          One exception to this rule is

"a protective sweep conducted in conjunction with the arrest of an

individual in his home."1       Winston, 444 F.3d at 118 (citing Buie,

494 U.S. at 327).      "A protective sweep is 'a quick and limited

search of premises, incident to an arrest and conducted to protect

the safety of police officers or others.'"                  Delgado-Pérez, 867

F.3d at 251 (quoting Buie, 494 U.S. at 327).                       In order for a

warrantless search to be a protective sweep, "there must be

articulable    facts   which,     taken     together        with    the   rational

inferences from those facts, would warrant a reasonably prudent

officer   in   believing   that   the     area   to    be    swept     harbors   an

individual posing a danger to those on the arrest scene."                    Buie,

494 U.S. at 334.

           The prosecution argues that the search of Diaz's home

was permissible because the officers had reason to believe that a

person involved in the robbery was inside Diaz's home when they

arrived and had remained inside the home both after the SWAT team


     1     The government does not defend its hot pursuit theory on
appeal.


                                   - 10 -
breached the door and ordered everyone out and after Diaz and his

wife had come outside and Diaz had been arrested.           As Serrano and

Diaz had already been detained at the time of the sweep and could

not possibly have posed a threat, the government's argument depends

on    there    being   "articulable   facts"   supporting    a    reasonable

inference that, at the time of the sweep, there was a third bank

robber in the house who was armed and remained inside Diaz's home

despite Diaz and his wife having come outside and been apprehended.

Id.

              The government does not provide any facts supporting its

theory that a third person remained in the house after Diaz and

his wife came out.       Nor does it attempt to explain why it could

not have gotten a warrant before entering the house.             Agent Rivera

admitted that they had received no information suggesting the

existence of a third participant in the bank robbery.             Indeed, the

evidence known to the officers then was that there were two people

who robbed the bank and then got away.            Two people were seen

getting into a van at the scene of the crime.          An informant had

told authorities that "two individuals known to him . . . were

responsible for this bank robbery."            (emphasis added).       Agent

Rivera stated at the suppression hearing that the information law

enforcement had was that two people had been spotted parking the

van by the side of the road several hours after the robbery and

fleeing into the surrounding woods.        Law enforcement had arrested


                                  - 11 -
Serrano   during   a    traffic   stop    and   Diaz   at   his    home   shortly

thereafter.      That accounts for the two people seen during the

robbery and leaving in the van, and abandoning the van later. This

alone undercuts the theory that there was a third person in Diaz's

house.    Even if there had been a third robbery participant in the

van when it left the bank, he had separated from Diaz and Serrano

before the van stopped.      There was no articulable basis to believe

that he would be in Diaz's home.

            Agent Rivera testified that because "as soon as the [two]

individuals left [the bank], they went inside the van and left the

location," he simply "assumed that there was a third waiting for

them in the van."       (emphasis added).       This assumption was based on

unfounded speculation, not "articulable facts" in the record.

Delgado-Pérez, 867 F.3d at 251.

            At   oral     argument,      defense    counsel       asserted   that

"protective" sweeps are done as a "standard practice" in Puerto

Rico regardless of the circumstances and that that may be what

happened here.     Neither explanation satisfies the constitutional

requirements.

            We reverse the district court's ruling denying Diaz's

motion to suppress.        The physical evidence recovered during the

sweep, including the money from the bank, must be excluded as

"unlawful fruit of the protective sweep."              Id. at 257.




                                   - 12 -
            That does not end the matter.             The prosecution argues

that, even if the sweep was impermissible, Diaz's later consent to

a search of his home -- while he was outside the home, under

arrest, and in handcuffs and after the SWAT team had entered his

home -- independently led to a constitutional search that recovered

additional money inside Diaz's home.2                Given that the consent

followed an illegal search, the evidence recovered in the consent

search should still be suppressed if it "bear[s] a sufficiently

close relationship to the underlying illegality."3             Delgado-Pérez,

867 F.3d at 256 (quoting New York v. Harris, 495 U.S. 14, 19

(1990)).       This   inquiry   looks     to    factors   including    "temporal

proximity, the presence of intervening circumstances, and the

purpose and flagrancy of the official misconduct."                    Id. at 257

(internal quotation marks omitted) (quoting Brown v. Illinois, 422

U.S. 590, 603-04 (1975)).

            As a matter of law, once the search has been found

illegal and a causal connection is evident, the government bears

the   burden    of    showing   that    Diaz's    consent   was   sufficiently


       2  The district court found that Diaz's wife's consent did
not justify the warrantless search because she provided it after
the second search had already begun.     The government does not
challenge that finding on appeal.
       3    Because we hold that Diaz's consent to the second search
was   tainted by the illegality of the SWAT team's sweep, we need
not   decide whether Diaz's consent was "knowingly, intelligently,
and   voluntarily given." United States v. Marshall, 348 F.3d 281,
286   (1st Cir. 2003).


                                       - 13 -
attenuated from the illegal search. See United States v. Kornegay,

410 F.3d 89, 94 n.3 (1st Cir. 2005).    The prosecution did not even

attempt to make such a showing.   Agent Rivera sought and received

consent immediately after the SWAT team told him that they saw

money in the house during the "protective" sweep and once Diaz was

already in handcuffs.   The record provides no indication that Diaz

would have consented to the search if not for the unconstitutional

sweep and what it uncovered.    In response to this strong factual

connection, the government "makes no argument as to why [Diaz's]

consent was not the tainted fruit of the unlawful sweep." Delgado-

Pérez, 867 F.3d at 258.

          Undaunted, the government next argues that any error is

harmless because the "remaining evidence introduced at trial,"

including Diaz's former cellmate's testimony that Diaz made a

jailhouse admission to his cellmate that he acted as a lookout

during the robbery and the cell-site data showing the phone was

located near the location of the robbery and in Diaz's home,

"established that he participated in the robbery."        Given the

constitutional error in this case, we must remand for a new trial

unless the error was "harmless beyond a reasonable doubt."   United

States v. Leon-Delfis, 203 F.3d 103, 112 (1st Cir. 2000) (quoting

Milton v. Wainwright, 407 U.S. 371, 372 (1972)).

          The evidence recovered from Diaz's home was central to

the government's case, so the error was certainly not harmless


                               - 14 -
beyond a reasonable doubt.         See id. (concluding that the admission

of "highly probative" evidence "likely to be at the center of a

jury's     attention,"     which       was    obtained    in    violation    of    the

defendant's      constitutional        rights    and    which    should   have    been

suppressed at trial, was not harmless beyond a reasonable doubt).

The    bands    around   the    cash    found    in    Diaz's    home,    which   were

initialed      and    later    identified       by    Oriental    Bank    employees,

directly linked Diaz to the robbery.                   The government referenced

this evidence repeatedly throughout closing argument.                     The pistol

case recovered from Diaz's home was also used to connect him to

the robbery.

               The government's other evidence of guilt is weak in

comparison.      Roberto Capo-Ortiz, Diaz's former cellmate, testified

that Diaz admitted to him that he acted as a lookout during the

robbery.       There was no purported admission that Diaz was one of

the robbers.         Diaz argues that Capo-Ortiz's testimony was self-

interested and untrustworthy.                Indeed, Capo-Ortiz is a convicted

felon who testified in this case in the hope of having his twelve-

year    sentence     reduced.      The       prosecution's      cell-site   evidence

places cell phones registered to Diaz near the bank, in the woods

near where the van was abandoned, and finally near his home. While

that is relevant evidence, it is not so strong as to make a guilty

verdict so likely as to render the admission of the evidence

recovered from Diaz's home harmless.                 Given the centrality of the


                                        - 15 -
money to the government's case at trial, we cannot find that the

error was harmless beyond a reasonable doubt.

B.   Serrano

             Serrano's only argument4 is that several testimonial

statements made by Agent Sánchez-Martínez and Agent Vázquez-Díaz

were improper hearsay.     The most potentially damaging statement --

Vázquez-Díaz's testimony that an informant told him the names of

the robbers -- was stricken from the record and was subject to a

curative jury instruction.      Serrano never requested more regarding

the statement, so our review is for plain error.         United States v.

Colón-Díaz, 521 F.3d 29, 33 (1st Cir. 2008).             "When a witness

strays into forbidden territory, . . . strik[ing] the wayward

remark and instruct[ing] the jury to disregard it" will usually

"suffice to safeguard the aggrieved party's rights." United States

v. Lee, 317 F.3d 26, 35 (1st Cir. 2003).             Serrano, who falsely

claims that this statement was admitted into evidence, provides no

credible   reason   why   the   district   court's   remedy   was   plainly

erroneous.

             Serrano also challenges the admission of testimony from

Roberto Capo-Ortiz that Diaz told Capo-Ortiz that Diaz and Serrano

committed the robbery.      Serrano argues that this is inadmissible



      4   Serrano does not argue that, if the Diaz verdict is
vacated, his must be as well, and we see no basis for such an
argument.


                                  - 16 -
hearsay because Diaz's statement was not self-inculpatory under

Federal Rule of Evidence 804(b)(3). Yet Capo-Ortiz later testified

that Serrano himself confessed.         This means that Diaz's alleged

statement to Capo-Ortiz that Serrano had participated in the

robbery    added   little   to   the   prosecution's   case,   making   the

admission of that statement from Diaz harmless.        See United States

v. Perkins, 926 F.2d 1271, 1280 (1st Cir. 1991) (citing United

States v. Benavente-Gomez, 921 F.2d 378, 386 (1st Cir. 1990)).

            We need not address whether the remaining statements

were hearsay because any error was harmless.           "The admission of

improper testimony is harmless if it is 'highly probable that the

error did not influence the verdict.'"         United States v. Flores-

De-Jesús, 569 F.3d 8, 27 (1st Cir. 2009) (quoting United States v.

Casas, 356 F.3d 104, 121 (1st Cir. 2004)).         The evidence against

Serrano was overwhelming.        He was arrested with a bag full of cash

hidden in his car.      His car contained a pair of black and blue

Nike tennis shoes, and a witness at trial described the robber as

wearing "Nike black and blue shoes."          His car also contained a

handgun.    Given the strength of this and other evidence, it is




                                   - 17 -
highly probable that the alleged errors Serrano identifies did not

affect the outcome of the trial.

                           III.    Conclusion

          We   vacate   Diaz's    conviction    and   remand   for   further

proceedings consistent with this opinion.             We affirm Serrano's

conviction.




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