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,
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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
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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
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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
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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
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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."
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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
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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.
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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.
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