United States Court of Appeals
For the First Circuit
No. 03-1767
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS LOPEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Robert O. Berger for appellant.
Carlos Lopez on brief pro se.
Mark E. Howard, Assistant U.S. Attorney, with whom Thomas P.
Colantuono, United States Attorney, was on brief for appellee.
August 19, 2004
COFFIN, Senior Circuit Judge. A jury convicted Carlos Lopez
on eight criminal counts, including conspiracy to distribute
cocaine base, distribution of cocaine base, and three firearms
violations. On appeal, appellant raises two primary issues.
First, he contends that key physical evidence, namely, a quantity
of drugs and a loaded .40 caliber handgun, was obtained through an
unlawful search of his vehicle. Second, appellant contests the
admissibility of certain statements he made to law enforcement
officers. He argues that the statements were the product of
custodial interrogation that occurred after he invoked his right to
counsel. Appellant also raises a series of issues relating to
alleged prosecutorial vouching, the reliability of the drug dog
used in the vehicle search, and the district court's denial of his
motion for judgment of acquittal. Finding no infirmity in the
district court's decision to admit both the physical evidence and
appellant's statements, and detecting no basis for reversal or
remand on any of appellant's other claims, we affirm the conviction
on all counts.1
1
Counsel for appellant submitted two letters pursuant to Fed.
R. App. P. 28(j) in which he asserted that, under Blakely v.
Washington, 124 S.Ct. 2531 (2004), this court should strike down
the federal sentencing guidelines and remand this case. Blakely
held that a sentence that was enhanced on the basis of factors
found by the judge, rather than the jury, violated the defendant's
constitutional right to trial by jury. The appellant in this case,
however, received the minimum statutory sentence, and counsel has
offered no explanation as to why Blakely would apply. The argument
is thus waived. See Mulvihill v. Top-Flite Golf Co., 335 F.3d 15,
28 (1st Cir. 2003) (issue deemed forfeited by failure to marshal
pertinent facts or engage in reasoned analysis).
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I. Factual Background
Acting on a tip from a confidential informant, the Drug
Enforcement Administration (DEA) and local law enforcement officers
in New Hampshire began surveillance of a series of arranged drug
transactions between appellant and Terri Tremblay, an unwitting
friend of the informant. The first such arranged buy occurred on
May 11, 2001. In what would become a pattern for subsequent
transactions, Tremblay met the confidential informant at a Wendy's
restaurant in Portsmouth, where the informant gave Tremblay cash -
serialized funds provided by the DEA - to purchase crack cocaine.
Tremblay and the informant then met Lopez in the parking lot of the
Beechstone Condominium complex, across the street from the
Wendy's.2 Tremblay entered appellant's car and purchased crack
cocaine with the serialized money. She then gave the drugs to the
informant. After two such transactions in which the informant
served as an intermediary between Tremblay and undercover task
force officer John Perrachi, Perrachi began to arrange deals
directly with Tremblay. Lopez and Tremblay were arrested on July
25, 2001, during the fifth coordinated transaction.
On the night of the arrest, law enforcement officers observed
Tremblay drive into the Beechstone parking lot, park her car next
to a Dodge minivan, exit her vehicle, and enter the minivan.
2
Out of the five arranged deals, four occurred in the parking
lot of the Beechstone apartment complex; the fifth occurred in a
manner similar to the other four, but on a nearby side street.
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Officers then converged on the minivan and arrested both appellant,
who was in the driver's seat, and Tremblay, who was in the
passenger seat. Tremblay and appellant were separated, and each
told a different version of events to officers present at the
scene. Appellant denied any knowledge regarding drugs, saying only
that he met Tremblay in the parking lot because he hoped to have
sex with her. Tremblay, however, wanted to cooperate and,
according to law enforcement reports, explained that Lopez had
brought with him a larger quantity of crack than she had been
planning to purchase.
Because children lived in the Beechstone apartment complex,
officers were particularly concerned with seizing the drugs
believed to still be in the vicinity. A preliminary search of the
vehicle at the scene of the arrest turned up $280 of the serialized
funds (the remaining $20 was found on Tremblay's person), but,
despite a drug-sniffing dog alerting three times to the passenger
front seat, no drugs. A search of the surrounding wooded area and
parking lot failed to yield any results. Due to poor lighting and
the presence of a crowd of onlookers that had gathered around the
scene, officers transported the van to the Portsmouth Police
Department. Tremblay and Lopez, still separated, were also taken
to the station.
At the station, after answering some initial questions about
the registration of the van, appellant indicated he might be
interested in cooperating and requested an attorney. DEA Special
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Agents Steven Story and Norman Houle ceased questioning appellant
and returned to the van to continue the search. Appellant was left
in the interview room under the supervision of Officer Brandon
Drysdale.
While searching the van, Story located a wire leading to a
locked compartment under the front passenger seat. Suspecting that
the compartment contained contraband, Houle went to fetch a camera
to document the compartment and its contents. En route, he briefly
entered the interview room, told Lopez that he and Story had found
"the stuff" and that "the deal was off." Houle left the interview
room immediately after making his remark. The compartment was
later found to contain sixty-three grams of crack cocaine, a loaded
semi-automatic .40 caliber handgun with an obliterated serial
number, and a package of photographs bearing Lopez' name.
At trial, Drysdale testified that, upon hearing Houle's
remark, Lopez became "very sad," remarking repeatedly that he was
"fucked" and that "his life was over." Lopez then asked Drysdale
what would happen to a person caught possessing both a gun and
drugs. Drysdale replied that it was "a bad thing."
Prior to trial, appellant submitted a motion to suppress the
guns and drugs found in the compartment, as well as his statements
to Drysdale. Appellant argued that the search of the vehicle was
unreasonable, justified neither as a search incident to arrest nor
under the automobile exception to the warrant requirement. He
protested that his statements were made during custodial
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interrogation and without his having waived his Miranda rights and
were thus inadmissible. After a hearing, the district court
summarily denied the motion.
We review the district court's findings of fact with respect
to a suppression motion for clear error. United States v. Infante-
Ruiz, 13 F.3d 498, 501 (1st Cir. 1994). As a general matter,
however, we review the district court's ultimate legal
determination of probable cause de novo. Ornelas v. United States,
517 U.S. 690, 699 (1996).
II. Vehicle Search
The Fourth Amendment guarantees "[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." U.S. Const. amend. IV.
Subject to limited exceptions, warrantless searches of private
property are per se unreasonable. California v. Acevedo, 500 U.S.
565, 580 (1991); United States v. Donlin, 982 F.2d 31, 33 (1st Cir.
1992). The mobility of automobiles and the attendant need to
prevent loss of evidence undergirds one such exception. A
warrantless search of an automobile will be upheld if "officers
have probable cause to believe that the vehicle contains
contraband." United States v. Ross, 456 U.S. 798, 808 (1982).
The government bears the burden of proving the lawfulness of
the search. Mincey v. Arizona, 437 U.S. 385, 390-91 (1978); United
States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990).
Specifically, the government must demonstrate that law enforcement
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officers had "a belief, reasonably arising out of circumstances
known to the seizing officer," that the vehicle "contain[ed] that
which by law is subject to seizure and destruction," Carroll v.
United States, 267 U.S. 132, 149 (1925).3 Our focus is on "what
the agents knew at the time they searched the car," United States
v. Goldman, 41 F.3d 785, 787 (1st Cir. 1994).
At the suppression hearing, both DEA agents and New Hampshire
police officers gave consistent and detailed testimony regarding
the surveilled transactions, all of which occurred in a similar
manner. Officers were able to corroborate information supplied by
the confidential source describing the vehicles driven by
appellant, including the van used on the night of the arrest. The
appellant was positively identified both by the confidential source
and agents familiar with him from a prior felony conviction. Two
witnesses - Officer Joslin and Agent Houle - personally observed
Lopez during surveilled transactions occurring prior to the night
of the arrest. Furthermore, at the scene of the arrest, Tremblay
explained to officers that Lopez had in his possession a larger
quantity of crack cocaine than she intended to purchase, thus
leading officers to believe that a substantial amount of drugs
remained in the van. Tremblay further described how, as the arrest
3
The government makes no effort to justify the search as a
search incident to arrest, see Chambers v. Maroney, 399 U.S. 42, 47
(1970) (acknowledging that search of an automobile occurring at a
police station "some time after the arrest . . . cannot be
justified as a search incident to an arrest"), and thus we focus
our analysis on the existence of probable cause for the search.
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team converged, Lopez leaned over her in the passenger seat,
suggesting that appellant had either hidden or discarded the drugs.
The latter possibility was of particular concern to officers given
the presence of several children living in close proximity to the
arrest site. Finally, a drug dog alerted aggressively in front of
the passenger seat, suggesting that drugs were present but
concealed.4 In short, the district court reasonably concluded that
officers had probable cause to search the van.
Appellant nevertheless contends that, under United States v.
Kyllo, 533 U.S. 27 (2001), we are required to weigh the evidence of
probable cause against the privacy interests of the individual
whose property was subject to search. Kyllo is inapposite. In
that case, the primary thrust of the court's analysis was "whether
the use of a thermal-imaging device . . . to detect relative
amounts of heat within the home constitutes a 'search' within the
meaning of the Fourth Amendment." Kyllo, 533 U.S. at 29. Nowhere
does the court conduct the type of balancing suggested by appellant
4
Appellant also challenges the reliability of Turbo, the drug
dog. See United States v. Owens, 167 F.3d 739, 749 (1st Cir. 1999)
("The existence of probable cause based on an alert by a drug dog
depends on the dog's reliability."). Philip Ahlin, the dog's
trained handler, testified at the suppression hearing that Turbo
was certified at the time of the search and had never - in Ahlin's
experience with the dog - given a false indication. Ahlin
explained that, during the search, Turbo's interest was
consistently focused on the front passenger seat, even when Ahlin
directed Turbo to other areas of the van. Cross-examination of
Ahlin in no way undermined this evidence of reliability and
consistency. We defer to the district court on this matter without
further explanation.
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concerning the reasonableness of the search rather than the
threshold determination of whether a search occurred.
Even if we were to turn to Kyllo for guidance, the recognized
privacy interest is of a different caliber from that in the present
case because the search there involved a home rather than a car.
See New York v. Class, 475 U.S. 106, 112 (1986) ("The Court has
recognized that the physical characteristics of an automobile and
its use result in a lessened expectation of privacy therein[.]").
Although the Supreme Court has acknowledged that the stop and
search of a vehicle does present a conflict between "the
individual's constitutionally protected interest in privacy and the
public interest in effective law enforcement," Ross, 456 U.S. at
804, the Court has also made clear that "[t]hese interests must
yield to the authority of a search" justified by probable cause.
Id. at 823. The fact that the contraband was in a container in a
locked, hidden compartment does not justify any extra measure of
consideration. The Supreme Court has explicitly stated that "[t]he
police may search an automobile and the containers within it where
they have probable cause to believe contraband or evidence is
contained."5 Acevedo, 500 U.S. at 580; see also Owens, 167 F.3d at
5
Appellant argues that United States v. Maple, 348 F.3d 260
(D.C. Cir. 2003), applies the Kyllo rationale to warrantless
searches of an automobile. Maple, however, dealt with the
reasonableness of a search in which there was no probable cause to
suspect contraband. The appellant in that case had been stopped
for speeding and subsequently arrested for driving with a suspended
license. This is markedly different from the facts before us, in
which law enforcement officers had a reasonable belief that
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750 ("[I]f probable cause justifies the search of a lawfully
stopped vehicle, it justifies the search of every part of the
vehicle and its contents that may conceal the object of the
search.") (quoting Ross, 456 U.S. at 800). Similarly, "efforts to
restrict access to an area do not generate a reasonable expectation
of privacy where none would otherwise exist," Class, 475 U.S. at
114.
The government has presented ample evidence demonstrating that
law enforcement officers had probable cause to search the vehicle
and the compartment. The relocation of the vehicle from the
parking lot to the police station did not deprive the officers of
probable cause to search. See Chambers, 399 U.S. at 52 ("[T]he
blue station wagon could have been searched on the spot . . . .
The probable-cause factor still obtained at the station house[.]").
The district court properly denied appellant's motion to suppress
the evidence discovered in the vehicle.
III. Statements Made to Law Enforcement Officers
Appellant next argues that the district court should have
suppressed the post-arrest remarks he made to Drysdale after he
learned that Houle and Story had located the hidden compartment.
See supra at 5. Appellant claims that the admission of his
inculpatory remarks violated his rights under Miranda v. Arizona,
384 U.S. 436 (1965). In his brief, appellant admitted that Agent
appellant's vehicle contained crack cocaine.
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Story advised him of his Miranda rights at the scene of the arrest,
and that appellant affirmatively responded that he understood those
rights.
In order for appellant to make out a claim under Miranda,
however, his statements must have been the product of custodial
interrogation. Id. at 444 ("[T]he prosecution may not use
statements . . . stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.").
The protections of Miranda extend beyond actual questioning by the
police to include the "functional equivalent" of interrogation,
meaning "any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating
response from the suspect." Rhode Island v. Innis, 446 U.S. 291,
301 (1980).
Although Story and Houle did formally question appellant about
the registration of the van, the agents ceased interrogation when
appellant indicated he wanted to talk to his lawyer. Although
Lopez remained in custody, any statement made "freely and
voluntarily without any compelling influences is, of course,
admissible in evidence," Miranda, 384 U.S. at 478. See Innis, 446
U.S. at 299.
We see no indication that appellant's statements stemmed from
custodial interrogation or its functional equivalent. Houle's
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remark, although suggesting that the case against Lopez was
strengthened by discovery of "the stuff," was not designed to
elicit an incriminating response. Although our focus must be
"primarily upon the perceptions of the suspect, rather than the
intent of the police," Innis, 446 U.S. at 301, it is difficult to
see how appellant could have construed a passing remark as the
functional equivalent of interrogation. Indeed, Houle left the
room immediately after making the comment, signaling to appellant
that no response was sought.
In United States v. Genao, 281 F.3d 305 (1st Cir. 2002), we
upheld the admission of a confession blurted out by the defendant
in response to an officer's statement - in conjunction with a
display of seized contraband - that "[w]e've got a problem here."
See id. at 310. We reasoned that the remark was brief, not worded
in a particularly confrontational manner, and, in the context of
the ongoing search, intended simply to get the defendant's
attention before reading him his rights. See id. at 311.
Similarly, Houle's succinct remark simply highlighted information
that appellant needed to know to convey to his attorney, who at
that point was on his way to the station. Cf. United States v.
Conley, 156 F.3d 78, 83 (1st Cir. 1998) ("A law enforcement
officer's mere description of the evidence and of potential charges
against a suspect . . . hardly can be classified as
interrogatory.").
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Because appellant's voluntary statements, though
incriminating, were not the product of custodial interrogation, the
district court properly denied the motion to suppress.6
IV. Alleged Prosecutorial Vouching
Appellant contends that remarks in the prosecutor's opening
and closing statements constituted vouching for an absent witness.
No objection was made at trial and thus we review only for plain
error. United States v. Newton, 327 F.3d 17, 26 (1st Cir. 2003).
The registered owner of the van, Bob Cole, was scheduled to
testify on the final day of the trial. In his opening statement,
the prosecutor mentioned that Cole would testify that he - Cole -
never saw the van and did not have a valid driver's license. The
night before his scheduled testimony, however, Cole was visited by
a defense investigator. Although we do not know what was said to
Cole, he was subsequently admitted to the hospital for mental
6
After oral argument, counsel for appellant submitted a Rule
28j letter arguing that admission of appellant's remarks was barred
by the Supreme Court's decision in Crawford v. Washington, 124
S.Ct. 1354 (2004). Under Crawford, certain testimonial hearsay is
inadmissible "unless the declarant is unavailable and the accused
has had a prior opportunity to cross-examine the declarant," Horton
v. Allen, 370 F.3d 75, 83 (1st Cir. 2004). However, for reasons
similar to our conclusion that appellant's statements were not the
product of custodial interrogation, the statements were also not
testimonial in nature. The Supreme Court offered three general
formulations of the "core class of testimonial statements,"
Crawford, 124 S.Ct. at 1364, namely, "ex parte in-court testimony
or its functional equivalent," id., "extrajudicial statements . .
. contained in formalized testimonial materials," id., and
statements "made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available
for use at a later trial," id. Appellant's statements fall under
none of these three formulations.
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health reasons and was thus unavailable. In his closing statement,
the prosecutor explained to the jury that Cole didn't testify
"because we've established that even though his name is on the
registration, Carlos Lopez kept that van."
The prosecution is not permitted to "tell the jury what
witnesses who did not testify would have said had they testified,"
United States v. Palmer, 37 F.3d 1080, 1087 (5th Cir. 1994).
Neither may the prosecution place the prestige of the government
behind a witness nor implicitly vouch for a witness by indicating
that the testimony is supported by information not presented to the
jury. United States v. Martin, 815 F.2d 818, 821-22 (1st Cir.
1987).
We discern none of the above errors in the prosecutor's
closing remarks. The prosecutor did not offer any indication of
the substance of what Cole would have said, but instead simply
clarified that other testimony proved that Lopez controlled the
vehicle. The prosecutor pointed to evidence presented to the jury
- the testimony of Tremblay regarding multiple drug transactions
between her and Lopez in the van, the testimony of the mechanic who
performed several thousand dollars worth of work on the car at
Lopez' request - that proved the same point.
V. Denial of Motion for Judgment of Acquittal
Appellant's final claim concerns the court's denial of his
motion for judgment of acquittal under Fed. R. Crim. P. 29.
Appellant's counsel did not submit a motion for acquittal following
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the close of the government's evidence and, when asked by the judge
whether he wished to do so at the conclusion of all the evidence,
expressly declined. At the sentencing hearing on May 14, 2003 -
three months after the jury was discharged - appellant offered a
lengthy and detailed allocution. The court treated the allocution
as a Rule 29 motion for acquittal, but then denied the motion.
Despite the district court's lenience, we conclude that the
issue was waived by the appellant's failure to comply with the
procedural requirements of Rule 29, which require the motion to be
made by the defendant within seven days "after a guilty verdict or
the court discharges the jury, whichever is later[.]" Fed. R.
Crim. P. 29(a). Although the court may also "on its own consider
whether the evidence is insufficient," it must do so before
submission to the jury. Fed. R. Crim. P. 29(c); see also United
States v. Davis, 992 F.2d 635, 638 (6th Cir. 1993) (concluding that
the district court lacked authority to sua sponte enter a judgment
of acquittal more than two months after the jury was discharged).
We thus review appellant's claim only for "clear and gross
injustice," United States v. Hadfield, 918 F.2d 987, 996 (1st Cir.
1990).
The record fails to reveal such unfairness. We only briefly
recite the case against appellant, as there is little need for more
extensive analysis. Information supplied by the confidential
informant was corroborated during multiple surveillance operations
involving Tremblay and appellant. The testimony regarding the five
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surveilled drug transactions was consistent from all witnesses -
including law enforcement agents, the confidential informant and
Tremblay. Appellant was positively identified on multiple
occasions. A hidden compartment in the van that was maintained and
used by the appellant was found to contain drugs, as well as a gun
with an obviously obliterated serial number, and photographs of
appellant and his girlfriend, thus substantiating knowing
possession. Appellant stipulated to his status as a convicted
felon, thus supporting his conviction for being a felon in
possession of a firearm. In short, we see no basis to disturb the
verdict.7
Affirmed.
7
Appellant submitted a pro se brief in which he argued that
the initial arrest warrant was not supported by probable cause.
Appellant raised the issue of the validity of the arrest warrant
only during his allocution at the sentencing hearing. This belated
effort fails to preserve the issue for review. It arguably should
have been the subject of a pretrial motion, and, at a minimum,
should have been raised in the district court at trial. See Fed.
R. Crim. P. 12(b)(3)(A) (requiring that a motion alleging a defect
in instituting the prosecution must be made before trial); United
States v. Nee, 261 F.3d 79, 86-87 (1st Cir. 2001)("'Arguments not
raised below will be entertained on appeal only in horrendous cases
where a gross miscarriage of justice would occur and, in addition,
where the newly asserted ground is so compelling as virtually to
insure appellant's success.'")(quoting United States v. Haggert,
980 F.2d 8, 11 (1st Cir. 1992)). In any event, the argument is
utterly without merit, whether it was forfeiture or not.
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