F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 20, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-2031
MARC ANTHONY FAMIGLIETTA, (D.C. No. CR-04-349 BB)
(D. New Mexico)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
Marc Anthony Famiglietta entered a conditional plea to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He
appeals the district court’s decision denying his motion to suppress evidence. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I. Background
In early 2004, Detective Daniel Campbell of the Albuquerque, New Mexico
Police Department received information from a confidential informant about a
fraudulent check operation occurring at 801 Louisiana Boulevard, apartment
number 6. The informant also provided a description of an individual named
Marc, also known as Demon.
Within a week of receiving that information, Detective Campbell and
Officer Corey Wadley, both dressed in civilian clothing, went to apartment
number 6 and knocked on the door. The two officers wanted to conduct a “knock
and talk” to see if they could identify someone by the name of Marc or Demon
and talk to him about what was going on at the apartment. At the time, Detective
Campbell did not believe that he had enough information to obtain a search
warrant. When Marc Famiglietta opened the door, Detective Campbell and
Officer Wadley identified themselves as officers of the Albuquerque Police
Department. At that point, Officer Wadley noticed a female standing
approximately four to six feet behind Famiglietta, and a man sitting on the couch
in the living room. The female was later identified as Karen Robertson, and the
man sitting on the couch was later identified as Raymond Acuna.
Detective Campbell asked Famiglietta, “Are you Marc?” Before
Famiglietta answered, Officer Wadley went inside the apartment to confront
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Robertson. According to Officer Wadley, while he was standing outside the
apartment door, he observed Robertson holding something in her fist, and looking
around the room as if trying to find a place to conceal something. Officer Wadley
testified that he asked Robertson, while he was still standing next to Detective
Campbell, “What’s in your hand?”, and she responded, “It’s empty.” 1 Officer
Wadley stated that in Robertson’s hand he saw a small plastic bag, with some
writing or characters on the outside, and white residue on the inside. Based on
his experience and training, Officer Wadley believed the bag contained
methamphetamine. As a result, Officer Wadley entered the apartment to retrieve
the bag. As he was walking toward Robertson, Officer Wadley also observed
Acuna stuffing papers and other items into the side of the couch.
Concerned for Officer Wadley’s safety, Detective Campbell asked
Famiglietta to go back inside the apartment with him. Famiglietta started walking
toward the back of the apartment, ignoring Officer Wadley’s requests to stop. As
a result, Officer Wadley approached Famiglietta, physically restrained him, and
directed him back to the living room. After Officer Wadley had Famiglietta place
his hands on top of his head, Famiglietta voluntarily informed Officer Wadley
that he had a gun in his back pocket. Meanwhile, Detective Campbell moved
1
It is unclear from the record whether Robertson was referring to her hand
or a bag that was in her hand.
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Robertson and Acuna outside of the apartment. Detective Campbell and Officer
Wadley eventually seized the bag Robertson had held in her hand, the gun on
Famiglietta’s person, and the items Acuna stuffed in the couch. A field test of the
bag tested positive for methamphetamine.
After additional officers arrived to secure the apartment, Detective
Campbell left to obtain a search warrant. A later search recovered three computer
towers, two printers, check paper, government savings bonds, identification cards,
birth certificates, and social security cards.
II. Standard of Review
This court reviews de novo a district court’s determination of the
reasonableness of a search and seizure under the Fourth Amendment. United
States v. Abdenbi, 361 F.3d 1282, 1287 (10th Cir. 2004). When reviewing a
denial of a motion to suppress, we look at the totality of the circumstances and
view the evidence in the light most favorable to the government. United States v.
Gay, 240 F.3d 1222, 1225 (10th Cir. 2001). Further, we accept the factual
findings of the district court unless they are clearly erroneous. United States v.
Williams, 271 F.3d 1262, 1266 (10th Cir. 2001). “A finding of fact is ‘clearly
erroneous’ if it is without factual support in the record or if the appellate court,
after reviewing all the evidence, is left with a definite and firm conviction that a
mistake has been made.” Manning v. United States, 146 F.3d 808, 812 (10th Cir.
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1998).
III. Discussion
Ruling from the bench, the district court found that exigent circumstances
permitted Officer Wadley to enter the apartment without a search warrant:
. . . I would say that there was sufficient exigent circumstances. I
believe the officer that he saw the baggie in Mrs. Robertson’s hand.
That, in and of itself, I think would probably be sufficient, certainly,
if it was narcotics and easily disposable, to allow him to enter.
Vol. V. at 153-54. 2
On appeal, Famiglietta maintains that Officer Wadley’s decision to enter
the apartment violated the Fourth Amendment. Specifically, he contends that the
circumstances surrounding Officer Wadley’s “hurried judgment” that the bag in
Robertson’s hand contained drugs did not amount to clear evidence of probable
cause or the sort of exceptional circumstances necessary to dispense with the
warrant requirement.
The Supreme Court has recognized that even with probable cause, police
officers may not enter a dwelling to make an arrest absent consent or exigent
circumstances. Payton v. New York, 445 U.S. 573, 590 (1980) (“The Fourth
2
A woman named Cindy Turk rented apartment number 6 at 801 Louisiana
Boulevard, and according to Famiglietta, she asked him to watch over her
apartment while she went out of town to visit relatives. The district court ruled
that, although a close question, Famiglietta had standing to make his Fourth
Amendment challenge. The government does not challenge this ruling on appeal.
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Amendment has drawn a firm line at the entrance to the house. Absent exigent
circumstances, that threshold may not reasonably be crossed without a warrant.”).
In analyzing whether exigent circumstances are present, this court has recognized
that “there is no absolute test . . . because such a determination ultimately
depends on the unique facts of each controversy.” United States v. Anderson, 154
F.3d 1225, 1233 (10th Cir. 1998) (citation omitted). We have, however,
recognized certain general factors. Id. For instance, where police fear the
destruction of evidence, an exception to the warrant requirement exists, allowing
police to enter the home of an unknown suspect, when it is:
(1) pursuant to clear evidence of probable cause, (2) available only
for serious crimes and in circumstances where the destruction of
evidence is likely, (3) limited in scope to the minimum intrusion
necessary to prevent the destruction of evidence, and (4) supported
by clearly defined indications of exigency that are not subject to
police manipulation or abuse.
Id. (citation omitted).
We agree with the district court that the existence of probable cause and
exigent circumstances justified the warrantless entry into the apartment. First,
Officer Wadley had probable cause to believe that a crime was occurring in his
presence. See Illinois v. Gates, 462 U.S. 213, 245 (1983) (noting that “probable
cause requires only a probability or substantial chance of criminal activity, not an
actual showing of such activity”). From the threshold of the apartment door,
Officer Wadley observed Robertson holding something in her hand, which was
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moving back and forth. He testified that Robertson was looking around the room
as if she was trying to hide something. When Officer Wadley asked Robertson to
open her hand, he saw a small, plastic bag with white residue on the inside, and
some markings on the outside. Based on his experience and training, Officer
Wadley believed that the bag contained methamphetamine. Famiglietta
challenges the trustworthiness of Wadley’s observations, maintaining that, at best,
Officer Wadley “caught a quick look at a small bag from a considerable distance.”
Aplt. Br. at 23. We refuse, however, to second guess Officer Wadley’s ability to
recognize suspicious conduct and detect unlawful substances in light of his
experiences and training in that area, as well as the district court’s conclusion as
to the weight and credibility of his testimony. 3
3
We assume, without deciding, that possession of methamphetamine is a
sufficiently “serious crime.” See United States v. Carr, 939 F.2d 1442, 1448
(10th Cir. 1991) (“Drug trafficking crimes are serious . . .”); United States v.
Aquino, 836 F.2d 1268, 1273 (10th Cir. 1988) (“the sale of illegal drugs is a
sufficiently severe offense”); but see United States v. Carter, 360 F.3d 1235, 1242
(10th Cir. 2004) (“the only crime for which there was probable cause was
possession of a small quantity of marijuana, in all likelihood a misdemeanor, a
crime that does not reach the level of a ‘serious crime’ required by Acquino”). In
our view, Famiglietta’s briefs fail to discuss the issue, see Aplt. Br. at 27-28
(“Even assuming that possession of drugs (rather than drug trafficking) is severe
enough a crime to otherwise justify a warrantless entry, there were no specific
facts to show destruction of the evidence of this crime was immanent [sic] and
likely.”), despite the government’s assertion that possession of methamphetamine
is a fourth degree felony under New Mexico law, carrying a “basic” sentence of
eighteen months, Appllee. Br. at 17-18.
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Second, the likelihood that the evidence would be destroyed created
sufficient exigent circumstances for Officer Wadley to enter the apartment. See
Carter, 360 F.3d at 1241 (“When officers have reason to believe that criminal
evidence may be destroyed, . . . or removed, . . . before a warrant can be obtained,
the circumstances are considered sufficiently critical to permit officers to enter a
private residence in order to secure the evidence while a warrant is sought.”)
(citations omitted). Famiglietta disagrees, contending that exigent circumstances
did not support Officer Wadley’s decision to immediately enter the apartment
after Robertson complied with his request to see what was inside her hand.
Famiglietta argues that Officer Wadley’s entry into the apartment without a
warrant or consent was unnecessary. He suggests alternative courses of action
Officer Wadley could have taken to preserve the evidence, such as asking
Robertson to hand over the bag, to step outside, or for permission to come inside.
He also submits that the record lacks specific facts showing the destruction of the
bag was imminent, again emphasizing that Robertson cooperated with Officer
Wadley and did not try to move away.
We are guided by the realities of the situation presented by the record,
evaluating the circumstances as they would have appeared to prudent, cautious,
and trained officers. United States v. Wicks, 995 F.2d 964, 970 (10th Cir. 1993).
When asked why he entered the apartment, Officer Wadley stated at the
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suppression hearing: “I believe, if I didn’t get in there immediately to retrieve the
bag, [Robertson] was either going to destroy it or conceal it to where I couldn’t
locate it.” Vol. V. at 120. We conclude that Officer Wadley’s belief that
Robertson would try to hide or dispose of the evidence was justified under the
circumstances. Before entering the apartment, Officer Wadley observed
Robertson trying to find a place to conceal the methamphetamine. Moreover,
given the reality that a small bag of drugs could be quickly and easily destroyed,
Officer Wadley had a reasonable expectation that the evidence would be lost if he
first tried to obtain a warrant. Although Officer Wadley arguably had other
alternatives to immediately entering the apartment, his choice did not violate the
Fourth Amendment. Detective Campbell’s decision to follow Officer Wadley
inside the apartment, out of concern for Officer Wadley’s safety, was also
appropriate.
Finally, we address Famiglietta’s contention that our decision to uphold the
officers’ conduct will lead to police abuse and manipulation in the future. In
particular, Famiglietta argues that a ruling against him “could encourage
precipitous police intrusions into homes whenever officers, in the midst of an
unfolding situation, catch a glimpse [of] something that, in their hurried
judgment, might be evidence of a crime.” Aplt. Br. at 30-31. We are not
persuaded. As the government points out, when Detective Campbell and Officer
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Wadley arrived at the apartment and the door opened, they had no idea that
Robertson would be holding a controlled substance. 4 The actions taken by the
officers were prompted by the unexpected conduct that unfolded before them.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
4
On a related note, Famiglietta stresses throughout his brief that Detective
Campbell failed to corroborate the confidential informant’s tip and even
acknowledged that he lacked probable cause for a search warrant prior to his
arrival for the “knock and talk.” Whether Detective Campbell and Officer
Wadley had probable cause to obtain a search warrant prior to arriving at the
apartment for a “knock and talk” is irrelevant. The “knock and talk” strategy
utilized by the officers in this case has been described as a “reasonable
investigative tool” for purposes of “seeking to gain an occupant’s consent to
search.” United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). Thus, the fact
that the officers arrived at the apartment without a search warrant is not
constitutionally problematic. Detective Campbell testified that the purpose of the
“knock and talk” was to see if he could identify someone at the apartment named
Marc and talk with him about what was going on at the apartment. Famiglietta
does not suggest that this stated purpose was false.
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