
USCA1 Opinion

	




          March 25, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2010                                    UNITED STATES,                                      Appellee,                                          v.                                   ALEXANDER LOPEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            William T. Murphy was on brief for appellant.            _________________            Zechariah  Chafee, Assistant  United  States  Attorney, with  whom            _________________        Lincoln C. Almond, United States Attorney, was on brief for appellee.        _________________                                 ____________________                                    March 25, 1993                                 ____________________                 BOUDIN, Circuit Judge.  In the district court, Alexander                         _____________            Lopez  was convicted  of  possessing cocaine  with intent  to            distribute and  with conspiracy  to commit the  same offense.            21  U.S.C.     841(a)(1), 846.   The  jury deadlocked  on two            other counts, later dismissed, charging Lopez with possessing            a  short barrel shotgun and with its use in drug dealing.  26            U.S.C.   5861(d);  18 U.S.C.    924(c)(1).   On this  appeal,            Lopez contests only the  district court's refusal to suppress            evidence obtained at the time of his arrest.  We affirm.                 The pertinent facts, developed mainly at the suppression            hearing, can be briefly stated.  Early on the morning of June            22,  1991, Charles Perry, a long-time cocaine user, went to a            building in  Providence, Rhode  Island, to  purchase cocaine.            The building was a decrepit  three-story tenement and, on the            second floor, there was a kitchen, an adjoining bathroom, and            three adjoining bedrooms available for rent on a weekly basis            to  tenants,  who  were  expected to  share  the  kitchen and            bathroom.  On the morning of June 22, one bedroom, previously            used  by  prostitutes,  was  empty;  one was  occupied  by  a            respectable tenant away at work;  and the last was used by  a            cocaine dealer named Blackie for whom Lopez worked.                 Arriving at  the second floor by the  back stairs, Perry            found the door to the kitchen open and entered  to find Lopez            and another  man.  Perry bought  a small bag  of cocaine from            Lopez and left to  inject the cocaine.  Several  hours later,                                         -2-                                         -2-            Perry returned.  Finding the second floor door now closed, he            negotiated  a  sale  from  the  outside,  took  his  purchase            downstairs  and  found  that   he  had  bought  baking  soda.            Returning to the  second floor,  he pounded on  the door  and            yelled   until  admitted.     There   he  found   Lopez,  the            unidentified  man present  on his  first visit,  and Blackie.            When Perry began to yell, Blackie leveled a sawed-off double-            barrel shotgun at Perry and told him to leave.                 Retreating to the yard outside, Perry continued to yell.            Blackie left, threatening Perry as he did so.  Perry then had            someone call  the  police  to  report  that  Perry  had  been            threatened with a sawed-off shotgun.   Lopez emerged and gave            Perry  a packet  of cocaine.   Police  cars, responding  to a            radio  alert, began  to arrive.   Pointing  to the  building,            Perry then described to several officers a male wearing green            camouflage trousers and no shirt.  Officer Tombs, who arrived            separately, heard  the description and saw  Lopez standing in            the  yard behind  the building,  without a shirt  and wearing            green camouflage pants, apparently holding an object.                      Tombs, clad  in uniform,  called on Lopez  to halt.            Instead, Lopez dashed into the building and ran to the second            floor.   Tombs pursued, broke through  two intervening doors,            and  arrested  Lopez  in  the   little  bedroom.    As  Tombs            handcuffed  Lopez, a radio fell over, and six tiny baggies of            cocaine were disclosed.   Other officers  appeared, including                                         -3-                                         -3-            Officer  Vanderhorst, and  a search  for the  shotgun ensued.            Vanderhorst,  entering  the  bathroom,  saw  a  ceiling  tile            missing.   He stood on the  toilet, peered in, and  saw a big            bag,  which proved  to have smaller  bags of  cocaine inside.            Then,  looking in again,  he saw a  gun butt.   As he climbed            down,  possibly using  a  ceiling panel  as a  hand-hold, the            ceiling collapsed  and spilled  a sawed-off shotgun  onto the            floor.  From handcuffing  to discovery of the gun, only a few            minutes passed.                 After a  suppression hearing before  trial, the district            court refused to suppress the shotgun or the cocaine found in            the  bedroom  and the  bathroom.   The  court found  that the            arrest leading to the discovery of cocaine in the bedroom was            based upon probable cause  and that Lopez had no  standing to            object  to  the search  of  the bathroom.    On the  issue of            standing, the court  found that the bathroom was available to            anyone on the premises, had  no outside lock, and  engendered            no expectation  of privacy.   The  cocaine  and shotgun  were            offered as evidence  at trial.   Lopez was  convicted on  the            cocaine counts.                 On this appeal, Lopez argues  that as an authorized user            of the apartment, he  had standing to object to  the bathroom            search under  United States  v. Irizarry,  673 F.2d  554 (1st                          _____________     ________            Cir. 1982).   In turn,  the government  defends the  district            court's suppression  ruling  primarily  by  arguing  lack  of                                         -4-                                         -4-            standing, citing United States v. Thornley, 707 F.2d 622 (1st                             _____________    ________            Cir. 1983).   As a second  string to its  bow, the government            argues that  exigent circumstances justified  the search  for            the  shotgun  without  awaiting  a  warrant.    We  think the            standing  issue  a close  call and  prefer  to affirm  on the            merits of the Fourth Amendment claim.                 It is  common ground  that the Fourth  Amendment forbids            only  unreasonable  searches and  seizures;  that  normally a            search is unreasonable absent  a warrant issued by a  neutral            magistrate  upon  a showing  of probable  cause; and  that to            excuse  the lack  of a  warrant,  the police  must ordinarily            bring the case within one or  more of a list of exceptions to            the  warrant  requirement.   See  generally  Coolidge v.  New                                         ___  _________  ________     ___            Hampshire,  403  U.S.  443, 477-78  (1971).    A  few of  the            _________            exceptions are  huge, such as  arrest for  felony and  search            incident  to  arrest,  which  embrace Lopez'  arrest  in  the            bedroom--assuming probable  cause to pursue him  in the first            place.   Most  of the  exceptions, however, are  narrower and            more complex.                   The exception with  which we are concerned in  this case            excuses the  lack of a warrant  where "exigent circumstances"            exist,   requiring  speed   and  making   delay  improvident.            Although   the  most  frequent   example  is  the  threatened            destruction of evidence, e.g., Cupp v. Murphy, 412  U.S. 291,                                     ___   ____    ______            294-96  (1973),  a   solid  line  of  cases    finds  exigent                                         -5-                                         -5-            circumstances where the safety of law enforcement officers or            the  general public is  threatened.  E.g.,  Warden v. Hayden,                                                 ___    ________  ______            387 U.S.  294, 298-99 (1967); Criminal  Procedure Project, 80                                          ___________________________            Geo. L.J. 939, 987 (1992) (collecting numerous cases).   This            circuit has so  held.   E.g., United States  v. Rengifo,  858                                    ___   _____________     _______            F.2d  800, 805 (1st Cir.  1988), cert. denied,  490 U.S. 1023                                             ____  ______            (1989).                 The  question here, then,  is whether  the police  had a            reasonable basis to believe  that a threat to safety  existed            of an urgency and magnitude that  would justify a warrantless            search  of the kind that  occurred.  In  truth, two different            issues  are  embraced in  this formula.    One is  the police            perception  of danger,  judged by what  the officers  saw and            knew at the time.   The other, a legal issue for  the courts,            is whether  under the  Fourth Amendment the  perceived threat            justified their behavior.   In this  case, what the  officers            saw and knew is largely apparent from the record.  By a close            margin, we think their perception justified their conduct.                 The most important element is that the police had reason            to believe that  Lopez had a sawed-off shotgun  nearby, which            had  been used only shortly  before to threaten  Perry.  That            Blackie had  done the threatening, not  Lopez, was apparently            unknown to the  officers; if  they had known,  it could  only            have  increased  their concern  since  Blackie  was still  at            large.  Thus, the  police had ample basis for  believing that                                         -6-                                         -6-            an extremely dangerous  weapon was lodged  close at hand  and            should be recovered as promptly as possible.                 It  is  hard  to  think  that  Lopez  himself  posed  an            immediate danger.   Although one in  custody may yet  present            risks, it  appears that Lopez  was handcuffed in  the bedroom            and  that other officers were there  when the bathroom search            occurred.   Still, the police had no assurance that Lopez was            acting alone (in fact, he was not), or that the apartment was            secure  (there  were actually  two  entrances  on the  second            floor).  Officer  Tombs thought that  others might have  been            with Lopez in  the second  floor apartment.1   The nature  of            the  building--a  dilapidated,  multi-tenant  structure--lent            further weight to a reasonable concern that the shotgun might            be hidden nearby, recovered by others, and used again.                 The nature of the search is also important.  This is not            because  Lopez lacked "standing" as  to the bathroom area (we            assume arguendo that he had standing), but because the degree                   ________            of  intrusion has  a  bearing on  the  reasonableness of  the            police action.   It is one  thing to break into  and search a            family home, another to frisk an arrested suspect, another to            search a car, and  yet another to make a  protective sweep of                                            ____________________                 1Tombs testified at the suppression hearing that when he            reached  the  second floor  in  pursuit  of Lopez,  he  heard            within:    "Footsteps, fast  moving  footsteps.   I  couldn't            determine how many people, how many, you know,  subjects were            in  the house.   But  there was  footsteps running  about the            house, inside the door."                                         -7-                                         -7-            an already entered  building to uncover  other suspects.   In            each  such  case,  the  extent  of  the  intrusion,  and  the            proportionality   of    response   to   need,    inform   the            constitutional judgment.                 Here, the  intrusion, although not minimal, was limited:            the  officer saw the opening in  the bathroom ceiling through            an  open door, entered the empty room, and with little effort            saw the  butt of the weapon.   There was no new  entry into a            private residence;  the police were lawfully in the kitchen.             And  the  search  can be  justified  as  one  not merely  for            evidence or even contraband  but for a dangerous weapon  in a            building where others might gain access to it.  If the weapon            were not  swiftly recovered, a search for  others outside the            building might  be needed.   Thus,  this was  a proportionate            search, limited  in its range,  specific in  its object,  and            justified by exigent circumstances.                 There is considerable case law on exigent  circumstances            but, as one might expect in this area, the cases are  heavily            dependant on the  facts.   The closest case  in this  circuit            appears to be  Irizarry, upholding a warrantless search  of a                           ________            hotel  room to the extent  needed to assure  that a suspected            armed "fourth person"  did not  remain within.   673 F.2d  at            558.   Irizarry, in  which the  fourth person  was reasonably                   ________            believed to be  hiding in the room, is a  stronger case for a            warrantless  search, but  other circuits  on facts  closer in                                         -8-                                         -8-            strength to our  own have  found them strong  enough.   E.g.,                                                                    ___            United  States v. Queen, 847  F.2d 346, 353  (7th Cir. 1988);            ______________    _____            United States  v. McKinney,  477 F.2d  1184, 1186  (D.C. Cir.            _____________     ________            1973).2   We agree, cautioning  that our own  facts may press            close to the outer limit of the Fourth Amendment.                 Lopez'  other  challenge is  to  the  lawfulness of  the            original  pursuit,  and  this  claim  can  be  answered  more            swiftly.   If the original entry was unlawful, the seizure of            the cocaine in the  bedroom might be suppressed as  the fruit            of  the  poisonous tree,  see  generally Wong  Sun  v. United                                      ___  _________ _________     ______            States, 371 U.S. 471, 484 (1963), and the ban might extend as            ______            well (we need not decide the point) to the  evidence found in            the  bathroom  and  a  volunteered statement  at  the  police            station.  Lopez  says that the original  pursuit was unlawful            because the attempted, and ultimately  successful, seizure of            Lopez was not  based on probable cause to believe that he had            committed a crime.                 On the  contrary, the police  had a reasonable  basis to            believe  that Lopez was the man who  had leveled a shotgun at            Perry, even though in the  event it turned out to be  Blackie            who  had  held  the  weapon.     Office  Tombs,  arriving  to            investigate the crime, heard Perry describe an Hispanic male,                                            ____________________                 2McKinney,   peculiarly   on   point,    sustained   the                  ________            warrantless search  of a  hotel room--while the  occupant was            out--after  a bellman  observed  a sawed-off  shotgun on  the            table.                                         -9-                                         -9-            shirtless and in camouflage pants, and saw a man fitting this            description  standing near  the building  to which  Perry had            pointed.   When  Tombs in  uniform called  on Lopez  to halt,            Lopez instead  fled.   These  circumstances including  flight            gave  Tombs reason  to believe  that Lopez  was the  culprit,            United  States v.  Vasquez,  534 F.2d  1142, 145  (5th Cir.),            ______________     _______            cert. denied, 429  U.S. 979  (1976), and the  belief in  turn            ____  ______            justified  entry  under  the  "hot   pursuit"  doctrine,  see                                                                      ___            generally  United  States  v.  Santana, 427  U.S.  38,  42-43            _________  ______________      _______            (1976), and ultimately arrest.                 In sum, the shotgun and cocaine evidence was permissibly            seized  and  introduced  at  trial,  and  the  conviction  is            therefore valid.   Accordingly, the judgment  of the district            court is affirmed.                     ________                                         -10-                                         -10-
