10-1141-cr
United States v. Gomez (Mendoza)


                               UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January
1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule
32.1.1. When citing a summary order in a document filed w ith this court, a party must cite either the Federal
Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must
serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 13th day of January, two thousand eleven.

PRESENT:
            AMALYA L. KEARSE,
            RALPH K. WINTER,
            PETER W. HALL,
                        Circuit Judges.
______________________________________________

UNITED STATES OF AMERICA ,
                                          Appellee,

                          v.                                    No. 10-1141-cr

ALBERTO MENDOZA ,
                              Defendant-Appellant.
______________________________________________

FOR APPELLEE:                                              GLEN KOPP , Assistant United States
                                                           Attorney (Katherine Polk Failla, Assistant
                                                           United States Attorney, on the brief) for
                                                           Preet Bharara, United States Attorney for the
                                                           Southern District of New York, New York,
                                                           New York.

FOR DEFENDANT-APPELLANT:                                   PATRICK J. JOYCE , New York, New York.



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       Appeal from a judgment of the United States District Court for the Southern District of

New York (Baer, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED, that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Alberto Mendoza appeals from the district court’s judgment entered

on March 26, 2010, following his conviction by jury of conspiracy to distribute and possess with

intent to distribute 100 grams and more of mixtures and substances containing a detectable

amount of heroin in violation of 21 U.S.C. § 846. Before trial, Mendoza moved to suppress

physical evidence found in his apartment when he was arrested on November 10, 2008. After a

hearing, the district court denied the suppression motion. On appeal, Mendoza claims the district

court erred when it decided that probable cause and exigent circumstances justified the

warrantless entry of law enforcement agents into his home. Mendoza raises two principal

arguments on appeal. First, he asserts that there was no clear showing of probable cause to

believe Mendoza was engaged in a narcotics conspiracy with Gomez, that narcotics were stashed

in his home, or that if the agents had not kicked in his door evidence would have been destroyed.

Second, he submits the court relied on unjustified presumptions as well as a subjective

assessment of circumstances in applying the six-factor MacDonald test for exigent

circumstances. See United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990) (en banc).

We assume the parties’ familiarity with the facts and procedural history, which we reference only

as necessary to explain our decision.

       We review the district court’s ruling on a suppression motion for “clear error as to the

district court’s factual findings, viewing the evidence in the light most favorable to the



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government, and de novo as to questions of law.” United States v. Rodriguez, 356 F.3d 254, 257

(2d Cir. 2004). We grant particular deference to the district court's credibility determinations.

See, e.g., United States v. Mendez, 315 F.3d 132, 135 (2d Cir. 2002).

       Warrantless entries are presumptively unreasonable under the Fourth Amendment. See

Payton v. New York, 445 U.S. 573, 586 (1980). To overcome the presumption of

unreasonableness, officers must show both that there was probable cause and that exigent

circumstances justified warrantless entry. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per

curiam) (citing Payton, 445 U.S. at 590). Probable cause exists when there is “a fair probability

that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462

U.S. 213, 238 (1983). The test to determine whether exigent circumstances exist “is an objective

one that turns on . . . the totality of the circumstances confronting law enforcement agents in the

particular case.” MacDonald, 916 F.2d at 769. The core question is whether the facts, as they

appeared at the moment of entry, would lead a reasonable, experienced officer, see United States

v. Zabare, 871 F.2d 282, 291 (2d Cir. 1989), to believe that there was an “urgent need to render

aid or take action,” MacDonald, 916 F.2d at 769 (internal quotation marks omitted). Two

common instances in which the courts have found warrantless entries justified are situations

involving “hot pursuit” and those where destruction of evidence is imminent. Zabare, 871 F.2d

at 289; United States v. Gallo-Roman, 816 F.2d 76, 79 (2d Cir. 1987).

       We have adopted six factors as guideposts for determining the existence of exigent

circumstances:

       (1) the gravity or violent nature of the offense with which the suspect is to be
       charged; (2) whether the suspect “is reasonably believed to be armed”; (3) “a clear


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        showing of probable cause . . . to believe that the suspect committed the crime”; (4)
        “strong reason to believe that the suspect is in the premises being entered”; (5) “a
        likelihood that the suspect will escape if not swiftly apprehended”; and (6) the
        peaceful circumstances of the entry.

MacDonald, 916 F.2d at 769-70 (internal citation omitted) (quoting Dorman v. United States,

435 F.2d 385, 392-93 (D.C. Cir. 1970) (en banc)). We have consistently emphasized that these

factors “are merely illustrative, not exhaustive, and the presence or absence of any one factor is

not conclusive.” United States v. Medina, 944 F.2d 60, 68 (2d Cir. 1991).

        Applying these standards, we conclude that the district court properly found that probable

cause and exigent circumstances existed in this case. The district court first found, based on

testimony and evidence presented at the hearing, that under the totality of the circumstances the

agents had probable cause to believe that Gomez and Mendoza were jointly engaged in a

transaction to sell 804 grams of heroin to the undercover agent. United States v. Mendoza, No.

09-Cr-219, 2009 U.S. Dist. Lexis 68718, at *12 (S.D.N.Y. Aug. 6, 2009). The court also found

that once the backpack proved to be empty of drugs, the circumstances were such as to raise a

“fair probability” or a “substantial chance” that the drugs remained in Mendoza’s home. Id. at

*13. In further support of probable cause, as well as the existence of exigent circumstances, the

district court stated:

        the events which followed the agents’ approach to the home and announcement of
        their presence—namely, Mendoza’s descent of the stairway, observation of the
        agents and the “commotion” that accompanied Gomez’s arrest, and his flight up the
        stairs—not only provide further corroboration for the agent[s’] reasonable belief that
        Mendoza was involved in the commission of a crime but also supply an ample basis
        for the apprehension that evidence in the home might be destroyed if it were not
        immediately secured.




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Mendoza, 2009 U.S. Dist. Lexis 68718, at *13-14 (emphasis added and internal quotation marks

omitted); see United States v. Atherton, 936 F.2d 728, 732-33 (2d Cir. 1991) (noting that this

Circuit has repeatedly upheld warrantless entries where law enforcement agents reasonably

believed that immediate access to the premises was necessary to prevent the loss of evidence).

       In analyzing the remaining MacDonald factors, the district court made the following

findings, all of which are also amply supported by the record. The offense involving the sale of

nearly a kilogram of heroin is serious, and it was proper to afford some weight to an agent’s

reasonable fear, based on years of experience, that weapons might be present in a stash house for

narcotics. Mendoza, 2009 U.S. Dist. Lexis 68718, at *16. The agents knew Mendoza had

reentered his home because they saw him do so and observed him directly through the glass of

the front door. Id. at *17. In addition, when the agents entered the home they were not aware if

other exits existed and, although the court noted it was far from dispositive, the agents had

attempted a peaceful entry by knocking and announcing their presence. Id. The district court

also found that Mendoza’s flight at the sight of law enforcement formed an ample basis for the

“apprehension that evidence in the home might be destroyed if it were not immediately secured.”

Id. at *13-14 (internal quotation marks omitted).

       Mendoza has not shown that the court’s factual findings in support of its probable cause

and exigent circumstances determinations amount to clear error or that the court misapplied the

law—including the MacDonald factors. Based on the district court’s findings of fact, we hold

that reasonable and experienced agents would believe heroin was in Mendoza’s home. We also

hold that exigent circumstances permitted the warrantless search of that home.



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       We have considered all of Mendoza’s arguments on appeal and have found them to be

without merit. Accordingly, the judgment of the district court is AFFIRMED.



                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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