United States v. Polanco

United States Court of Appeals
For the First Circuit

No. 09-2517

UNITED STATES OF AMERICA,

Appellee,

v.

STIVEN F. POLANCO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Thompson, Circuit Judges.

Jeffrey B. Ruben, with whom Todd C. Pomerleau and Sarah Unger
were on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, Sandra R. Hebert and
Milind M. Shah, Assistant United States Attorneys, were on brief,
for appellee.

February 9, 2011
 THOMPSON, Circuit Judge. A federal grand jury indicted

Stiven Polanco on heroin-trafficking and firearm charges. After

the district judge denied Polanco's motion to suppress a cache of

incriminating evidence found in his car and apartment, a jury

convicted him on all counts. His appeal presents three questions:

Were the searches legal? Was a DEA agent's testimony about how

much heroin an addict could use in a day admissible?1 And was the

evidence underpinning his conviction for aiding and abetting the

distribution of heroin sufficient? We answer "yes" to these

questions and affirm Polanco's conviction.

BACKGROUND

Facts

Consistent with the standard protocol, we summarize the

key facts in the light most compatible with the verdict. See,

e.g., United States v. Troy, 618 F.3d 27, 29 (1st Cir. 2010).

In the fall of 2008, a joint task force comprising

federal and local law enforcement agents zeroed in on a suspected

drug dealer, David Contreras. Posing as a lobsterman from Newport,

task force member Seth Godek bought heroin from Contreras four

times over a two-month stretch from October through November 2008.

Each deal took place at the Providence Place Mall, an upscale

shopping center in downtown Providence. December was shaping up to

be more of the same. During a recorded phone call on December 2,

1
DEA is the acronym for Drug Enforcement Administration.

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2008, Contreras agreed to sell Godek 20 grams of heroin for $1,500.

Speaking in code, they said they would do the deal at the Mall on

December 3. Phone records show that Contreras and Polanco called

each other a total of six times later that day. That was not

unusual. Records show they called each other nine times on the day

of the December 3 deal, for example.

With Polanco at his side, Contreras came to the Mall as

promised. They sat in the food court and waited for Godek. When

Godek got there, Contreras told Polanco that he and Godek had to go

to a nearby restroom – an area Contreras knew had no Mall security

cameras. Once there, Contreras swapped the heroin for the cash.

Polanco and Godek then traded nods as Godek walked on by.

Contreras headed back to where Polanco was sitting, counting the

money. A surveillance camera caught Contreras and Polanco huddled

around a table. They ate lunch and then left the Mall in Polanco's

red Toyota Camry.

Contreras and Godek talked again on December 9. Godek

asked for 100 grams of heroin. He said he would pay $6,500.

Contreras said okay, and they agreed to rendezvous at the Mall's

food court on December 10. Within minutes of hanging up with

Godek, Contreras called Polanco. Records show a total of six calls

between the two on December 9. Records also show that Contreras

called Polanco early on December 10, right after he had gotten off

the phone with Godek.

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 Agents wanted to arrest Contreras and anyone else tied to

the heroin scheme. Contreras and Polanco showed up at the food

court on December 10 right on cue. But agents were concerned that

arresting the two in a crowded Mall might endanger others, so they

changed plans on the fly. Godek called Contreras and convinced him

to do the deal at a parking lot in Warwick, Rhode Island. Polanco

and Contreras drove to the new locale. Contreras was not happy.

"I have the stuff," he told Godek during one of their many calls.

"You better come get it." Contreras said he was in a red Camry,

parked with the lights on.

And so he was, sitting in the passenger seat beside

driver Polanco. Agents arrived on the scene and arrested the two

on the spot. They found no heroin on either man. Heavy rains

came, so agents drove Polanco's Camry to a DEA office. A

warrantless search of the car there revealed a hidden compartment

inside an armrest that contained 94.1 grams of heroin (just shy of

the agreed-on amount) and a loaded handgun. To open the

compartment, one had to use an electric motor to release a tension

strap so that the armrest would lift up. Needless to say,

contraptions like this do not come standard with Camrys.

Polanco told agents that he lived in a basement apartment

at 422 Plainfield Street in Providence. His parents owned the

building and lived upstairs. Agents then secured a warrant for

Polanco's quarters and used the keys he had given them to get in.

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They hit pay dirt: hidden above the ceiling tiles agents found

12.7 grams of heroin, plastic baggies (perfect for packaging

heroin), a digital scale with heroin residue, two coffee grinders

(perfect for grinding heroin), eleven rounds of ammunition, and

$140 in marked bills that had passed from Godek to Contreras during

the December 3 deal (they also came across $860 in unmarked

currency).

Proceedings

In short order, a grand jury returned a four-count

indictment charging Polanco with conspiring with Contreras to

possess and distribute 100 grams or more of heroin (count 1),

aiding and abetting Contreras in the December 3 heroin-distribution

scheme (count 2), possessing with intent to distribute 100 grams or

more of heroin on December 10 (count 3), and possessing a firearm

in furtherance of drug-trafficking crimes (count 4). See 21 U.S.C.

§§ 841(a)(1), (b)(1)(B), (b)(1)(C), 846 and 18 U.S.C. §§ 2,

924(c)(1)(A). Pleading not guilty, Polanco filed a motion to

suppress. Calling the warrantless search of his car

unconstitutional, Polanco argued that had the agents not illegally

rummaged through his auto, they would not have had enough probable

cause to get a search warrant for his apartment. So he asked the

district judge to suppress everything seized. After an evidentiary

hearing, the judge found the car search constitutionally

permissible under the auto exception to the Fourth Amendment's

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warrant requirement, see United States v. Dickerson, 514 F.3d 60,

66 (1st Cir. 2008) (permitting "a warrantless search of a car if

there is probable cause to believe" that it has "contraband or

evidence of a crime") – which ruined Polanco's fruit-of-the-

poisonous-tree argument concerning the apartment search.

The trial lasted two days. A parade of agents discussed

the ins and outs of what had happened. One also discussed how many

bags of heroin most addicts purchase for personal use. At the end

of the prosecution's case, Polanco moved for a judgment of

acquittal, which the judge denied. Polanco opted not to present

any evidence on his own behalf, and the jury found him guilty of

all charges. The judge later sentenced him to 120 months,

comprising concurrent sentences of 60 months each on counts 1-3 and

a consecutive 60-month sentence on count 4. This appeal followed.

We will disclose additional details as we discuss

specific issues.

ANALYSIS

Legal Searches

Polanco insists that the district judge stumbled in

denying his suppression motion. We review the judge's ruling de

novo, except that we assess his factual findings (which Polanco

does not really contest) only for clear error and will affirm his

ruling if "'any reasonable view of the evidence supports it.'"

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United States v. Bater, 594 F.3d 51, 55 (1st Cir. 2010) (quoting

United States v. Mendez-de Jesus, 85 F.3d 1, 2 (1st Cir. 1996)).

Polanco protests that the judge failed to see that

Arizona v. Gant, 129 S. Ct. 1710 (2009), signals a rollback of the

auto exception. Gant, he says, limits warrantless vehicle searches

to situations where an arrestee is unsecured and close enough to

threaten officer safety or destroy evidence. And, his argument

continues, agents had him in a cell when they combed the car for

evidence at a secure location, so the search offended the Fourth

Amendment.

This is a dead-end argument. Gant dealt with the

search-incident-to-arrest doctrine in the vehicle context. Pre-

Gant, officers could conduct a warrantless search of "the passenger

compartment of [the arrestee's] automobile" under that doctrine.

New York v. Belton, 453 U.S. 454, 460 (1981). Some courts even

permitted searches "when . . . the handcuffed arrestee ha[d]

already left the scene." Thornton v. United States, 541 U.S. 615,

628 (2004) (Scalia, J., concurring in the judgment) (collecting

cases reading Belton broadly). But Gant clarified that an

automobile search may fall within the search-incident-to-arrest

doctrine only in two very specific situations: "when the arrestee

is unsecured and within reaching distance of the passenger

compartment at the time of the search" (the officer-safety

justification), or "when it is 'reasonable to believe evidence

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relevant to the crime of arrest might be found in the vehicle'"

(the evidence-preservation justification). Gant, 129 S. Ct. at

1719 (quoting Thornton, 541 U.S. at 632 (Scalia, J., concurring in

the judgment)). Gant also noted that officers may conduct vehicle

searches under other doctrines. Id. at 1721.

Our case does not involve the search-incident-to-arrest

exception, however. As the district judge noted, the government

had jettisoned any search-incident-to-arrest theory before the

suppression hearing. Only the auto exception matters here – an

exception that provides that "[i]f there is probable cause to

believe a vehicle contains evidence of criminal activity," agents

can search without a warrant "any area of the vehicle in which the

evidence may be found." Id. (discussing United States v. Ross, 456

U.S. 798, 820-21 (1982)). And, critically, Gant did not scrap that

exception. See id. That is not just our opinion: every circuit

that has considered the issue to date has either concluded or

assumed that the auto exception survived under Gant. See, e.g.,

United States v. Arriaza, No. 09-4957, 2010 WL 4813775, at *2 (4th

Cir. Nov. 24, 2010) (unpublished); United States v. Aguilera, 625

F.3d 482, 485-86 (8th Cir. 2010); United States v. Hinojosa, No.

09-10969, 2010 WL 3257768, at *1 (5th Cir. Aug. 16, 2010)

(unpublished); United States v. Vinton, 594 F.3d 14, 25 (D.C. Cir.

2010); United States v. Stotler, 591 F.3d 935, 940 (7th Cir. 2010).

We assumed as much in United States v. Bucci, 582 F.3d 108, 117

-8-
(1st Cir. 2009). Now that the issue is directly before us we turn

that assumption into a holding.

Before we go further, we add a few words of caution. The

auto exception is distinct from the evidence-preservation component

of Gant's search-incident-to-arrest analysis (which for

simplicity's sake we call the Gant evidentiary justification). We

give two examples only. The auto exception extends beyond the

crime of arrest. See Gant, 129 S. Ct. at 1721. But the Gant

evidentiary justification does not extend to evidence of other

offenses. See id. Also, the auto exception requires probable

cause. See id. But the Gant evidentiary justification only

requires a "reasonable basis." See id. at 1719. These

distinctions make a difference. And, for obvious reasons, it is

important to keep them straight.

Now back to Polanco. Measured against the auto

exception's regime, Polanco's challenge comes up short. Consider

what agents knew before the December 10 car search. The December

3 heroin deal had gone down at the Mall's food court and involved

Contreras, Polanco, and Polanco's Camry, and the December 10 deal

was set to play out the same way until agents changed locations out

of concern for the public's safety. Agents then saw Contreras

leave the Mall with Polanco in Polanco's car, and Contreras told

Godek over the phone to come "get this stuff." When agents got to

the new site they spied Polanco and Contreras waiting in Polanco's

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car. A pat-down search of the two turned up nothing. But a

Mirandized Contreras told all. Polanco's car had a "trap" (a

street term for a hidden compartment), a nervous Contreras

whispered to agents at the scene, and the heroin and a loaded gun

were stashed inside, he said. He also fingered Polanco as his

supplier.2 Given these facts, we think agents had more than enough

probable cause to believe that Polanco's car contained evidence of

criminality. See generally United States v. Woodbury, 511 F.3d 93,

97-98 (1st Cir. 2007) (emphasizing that probable cause only

requires a fair probability – which is well short of certainty –

that evidence of criminal activity will be found in a particular

place).

As a fallback defense, Polanco contends that the search

flunked the auto-exception test, for three reasons: agents did not

actually stop his car, they gave it a thorough going over at

another locale, and they had time to get a warrant. But each

argument is a retread that has no traction: an impressive convoy

of auto-exception cases holds that if the requisite probable cause

exists it matters not whether the vehicle was already parked, see,

e.g., United States v. McCoy, 977 F.2d 706, 710 (1st Cir. 1992);

United States v. Panitz, 907 F.2d 1267, 1271 (1st Cir. 1990),

whether it was searched at another locale, see, e.g., Ross, 456

2
Testimony about Contreras's confession – which the judge
found entirely credible – was admitted only at the suppression
hearing.

-10-
U.S. at 807 n.9; United States v. Lopez, 380 F.3d 538, 545 (1st

Cir. 2004); McCoy, 977 F.2d at 710, or even whether agents had time

to obtain a warrant first, see, e.g., Ross, 456 U.S. at 807 n.9;

Panitz, 907 F.2d at 1270 n.3.

The end result, then, is this. Because probable cause

existed, the search of Polanco's Camry was lawful under the auto

exception – a conclusion that spoils his fruit-of-the-poisonous-

tree claim regarding the apartment search. Consequently, the

district judge rightly denied Polanco's motion to suppress.

Admissible Testimony

Possession-with-intent-to-distribute cases require

prosecutors to prove that a defendant possessed the drugs for

distribution rather than for personal use. See, e.g., United

States v. Maher, 454 F.3d 13, 23 (1st Cir. 2006); United States v.

Reynoso, 336 F.3d 46, 49 (1st Cir. 2003); United States v. Valle,

72 F.3d 210, 214 (1st Cir. 1995). To help prove that here,

prosecutors turned to task force member Michael Naylor. After

discussing his long experience in drug enforcement and his intimate

familiarity with the heroin world, Naylor testified without

objection that a single gram of heroin yields 50 doses – thus the

heroin seized from Polanco's Camry alone was enough for almost

5,000 doses. To cement the prosecution's distribution position and

undercut any claim of personal use, Naylor testified that a typical

heroin addict may do 3-5 doses a day. A heavy user may do 10-20

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doses a day. Anything above that could kill a person. Actually,

Naylor added, he knew two people who died after doing 50 doses.

Polanco spends a lot of time trying to convince us that

Naylor's 50-doses-may-kill-you comment was irrelevant and unduly

prejudicial. See Fed. R. Evid. 401, 403. If properly preserved,

these issues trigger abuse-of-discretion review, see, e.g., United

States v. Gonzalez-Melendez, 594 F.3d 28, 34 (1st Cir. 2010);

United States v. Griffin, 818 F.2d 97, 101-02 (1st Cir. 1987) – if

unpreserved, plain-error review takes over, see, e.g., United

States v. Nelson-Rodriguez, 319 F.3d 12, 34 (1st Cir. 2003). The

government wonders whether Polanco did enough to preserve either

issue. We need not wrestle with that question, however. Even

giving Polanco the benefit of the doubt on the preservation point,

we find no fault with the judge's discretionary calls.

Relevant evidence, Rule 401 says, is "evidence having

any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence." Clearly,

whether Polanco had the heroin for distribution or personal use was

a matter of consequence at trial. See, e.g., Maher, 454 F.3d at

23; Reynoso, 336 F.3d at 49; Valle, 72 F.3d at 214. And the range

of daily doses that Naylor said an average heroin addict could use

– from light to heavy to death-inducing – helped prove a pivotal

point: that the huge amounts of heroin involved here were

-12-
consistent with distribution as opposed to personal use. Cf.,

e.g., Maher, 454 F.3d at 23; Reynoso, 336 F.3d at 49; Valle, 72

F.3d at 214. The long and short of it is that Naylor's testimony

easily satisfied the not-too-hard-to-meet relevancy standard.

Polanco fares no better on his undue-prejudice claim.

For the reasons just given, Naylor's testimony was plainly

probative on the distributive-intent issue. No doubt, the

testimony was prejudicial, in the sense that it showed that the

amounts of heroin were too large to represent personal use. But it

was not unfairly so, particularly since Naylor never intimated a

possible suggestion that Polanco had supplied heavy heroin users or

had caused overdoses or deaths. Rarely will we override a judge's

balancing of relevance and prejudice, see, e.g., United States v.

Winchenbach, 197 F.3d 548, 559 (1st Cir. 1999), and we see no

reason to second-guess the judge's discretionary judgment here.

Sufficient Evidence

Last we come to Polanco's claim that the evidence did not

support his aiding-and-abetting conviction – a conviction that

required proof that he had knowingly helped Contreras commit the

December 3 heroin crime, wanting it to succeed. See United States

v. Urciuoli, 513 F.3d 290, 299 (1st Cir. 2008) (noting Judge

Learned Hand's "classic" definition that an aider and abetter is

one who "'associate[s] himself with the venture, . . .

participate[s] in it as in something that he wishes to bring

-13-
about,'" and "'seek[s] by his action to make it succeed'") (quoting

United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)); see also

United States v. Lugo Guerrero, 524 F.3d 5, 13 (1st Cir. 2008).

Polanco's theory is simple. He says that the evidence proved only

his presence when Contreras sold the heroin, not his knowing and

intentional participation. But a sufficiency challenge is a tough

sell. See, e.g., United States v. Aranjo, 603 F.3d 112, 116 (1st

Cir. 2010); United States v. Ortiz, 447 F.3d 28, 32 (1st Cir.

2006). Polanco must show that, viewing the evidence and reasonable

inferences in the light most favorable to the prosecution, no

rational jury could have convicted him. See, e.g., Aranjo, 603

F.3d at 116; United States v. Baltas, 236 F.3d 27, 35 (1st Cir.

2001). And as part of our de novo inquiry, we cannot re-weigh the

evidence or second-guess the jury's credibility decisions either.

See, e.g., United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.

1992). Polanco's sufficiency challenge misses the mark by a

country mile.

As Polanco says, it is not a crime to pal around with

criminals or to be there when they break the law. Id. at 712. But

this was more than a palling-around or mere-presence case. Eyeing

the record from the prosecution's perspective (as we are required

to do at this stage), we recap what a rational jury could have

found:

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 1. Polanco and Contreras called each other six times

just after Godek had set up the December 3 deal and nine times on

the day of the deal.

2. Polanco drove Contreras to the Mall in his red Camry

on December 3.

3. Polanco remained close by when Contreras headed to

the bathroom to do the heroin-cash exchange with Godek.

4. After the transaction, Contreras counted the cash as

he walked back to Polanco, and the two did something together while

hunched over a table. Also, Polanco and Godek traded nods as Godek

left the food-court area.

Polanco insists that he had a "legitimate purpose" for

being at the Mall (eating lunch) and that there is nothing sinister

about two people exchanging nods (simply a "socially ingrained

autoresponse," he says). But again, we must assume that the jury

credited the prosecution's evidence and drew inferences in its

favor – not Polanco's. See, e.g., United States v. Rodriguez-

Vélez, 597 F.3d 32, 38-39 (1st Cir. 2010). That his acts may not

look "illegal when viewed in isolation does not bar his conviction"

either – and the prosecution's "proof at trial 'need not exclude

every reasonable hypothesis of innocence, provided the record as a

whole supports a conclusion of guilt beyond a reasonable doubt.'"

Ortiz, 966 F.2d at 714 (quoting United States v. Victoria-Peguero,

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920 F.2d 77, 86-87 (1st Cir. 1990)). Consequently, Polanco's

innocence hypotheses cannot win the day for him.

5. Polanco then drove Contreras from the Mall in his red

Camry.

6. Also devastating to Polanco's position, among the

cash seized from his apartment were marked bills from the December

3 drug buy, indicating that he had profited from that deal.

Looking to deflect the impact of all this, Polanco contends that

the jury could not consider evidence collected or events that

occurred after the December 3 deal, no matter how much light these

shed on his role in that crime. At oral argument, his counsel

candidly conceded that he had no authority for that claim. We are

not surprised, given that our cases hold that evidence of events

that occur after the crime's commission can shine a spotlight on a

defendant's guilt or innocence. See, e.g., United States v. Lara,

181 F.3d 183, 204 (1st Cir. 1999) (collecting cases). Not

surprisingly, then, his claim goes nowhere.

7. Finally, an experienced task force member testified

that dealers seldom bring innocents to drug deals, which

strengthens an already-strong inference that Polanco knowingly took

part in the December 3 heroin-cash exchange. See Ortiz, 966 F.2d

at 712 (commenting in an aiding-and-abetting case that "[j]urors

can be assumed to know that criminals rarely welcome innocent

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persons as witnesses to serious crimes and rarely seek to

perpetrate felonies before larger-than-necessary audiences").

Given this factual composite (sketched in the light most

flattering to the prosecution), a reasonable jury could have easily

concluded that Polanco was not innocently hanging out with

Contreras during the December 3 deal but rather was knowingly

participating in a crime that he doubtless wanted to succeed.

Stated slightly differently and in sum, the evidence allowed a

levelheaded jury to convict Polanco on the aiding-and-abetting

count, so his sufficiency challenge fails.

CONCLUSION

Detecting no trace of reversible error, we affirm the

judgment of conviction in all respects.

So Ordered.

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