United States v. Figueroa

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<pre> [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit ____________________ No. 96-2065 UNITED STATES, Appellee, v. JOSE FIGUEROA, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Raymond J. Pettine, Senior U.S. District Judge] ____________________ Before Boudin, Circuit Judge, Wellford, Senior Circuit Judge, and Lynch, Circuit Judge. _____________________ William J. Murphy, by appointment of the Court, for appellant. Richard W. Rose, Assistant United States Attorney, with whom Sheldon Whitehouse, United States Attorney, was on brief, for appellee. ____________________ September 22, 1998 ____________________

Per Curiam. Defendant, Jos Figueroa, was charged with possession with intent to distribute cocaine in violation of 21 U.S.C. 841(a)(1), and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c)(1). Prior to trial, Figueroa moved to suppress evidence that was found after a warrantless search and seizure of a closed, opaque box that Figueroa was allegedly carrying during his flight from police officers. Figueroa claimed that the search of the box, which produced a handgun and crack cocaine, constituted a violation of his Fourth Amendment protection against unreasonable searches and seizures. On May 30, 1996, after an evidentiary hearing, the district court denied Figueroa's motion to suppress. Figueroa's trial commenced at the conclusion of the suppression hearing, and on June 3, 1996, the jury found him guilty on both counts in the indictment. Figueroa now appeals the district court's denial of his motion to suppress. For the following reasons, we affirm. On January 22, 1996, Detective Robert Lepre of the Providence Police Department obtained a search warrant for Figueroa's premises on the first floor at 40 Whittier Avenue in Providence. Although 40 Whittier Avenue is a three-floor tenement with an apartment on each floor, the search warrant was for the first- floor apartment only. At approximately 6:30 p.m., Detective Lepre, with eight or nine other members of the Providence Special Investigations Bureau, approached the building to execute the search warrant. As the raid team approached the building, the detectives saw Figueroa looking out the front window and saw him flee from the window. Detective Colanduono and Detective Harris went to cover the rear of the building. By the time they arrived at the rear door of the house, they heard Figueroa running from the first to the second floor. They observed that the rear exterior door was "wide open," and they ran up the stairs after Figueroa. Seeing the second-floor apartment door partly open, the men entered and saw Figueroa emerging from "the baby's room" wearing shorts, a tee shirt, and socks, standing in an open doorway breathing very heavily. Recognizing that Figueroa matched the description of the target of the raid, who was described as having orange hair, they escorted the defendant out of the apartment. The residents of the second-floor apartment, Rosa Peguero and Adley Francois, testified that they heard the loud banging of a forced entry, and then heard somebody coming up the stairs of the apartment building. Francois opened the door, and Figueroa came in, carrying a "small white box" with a "pinkish or reddish" cover. Figueroa then went into their baby's room, and the police came after him a few seconds later. Francois indicated to the detectives that Figueroa had just run into the apartment, and that Figueroa was the person who lived on the first floor. Detective Harris asked Francois whether Figueroa had carried anything into the apartment, and Francois pointed to a baby wipes box on a changing table in the baby's bedroom. After obtaining Francois' consent to search the baby's room, Harris opened the box to which Francois had pointed, but it contained only baby wipes. Harris asked Francois, "Are you sure it was like this box?" Francois replied that the box Figueroa had carried was like the baby wipes box, and he suggested that Figueroa may have thrown it out the window. Harris, having found the window locked and secured, briefly continued searching the bedroom, and then exited the room to bring Figueroa downstairs to Detective Lepre. Detective Colanduono continued the search of the baby's room, and found another baby wipes container. He asked Francois if the box was his, and Francois replied, "No, I think that's what [Figueroa] brought into the room." Colanduono kicked it and then bent down and opened it, and observed that it contained a handgun, a magazine with three live rounds in the magazine, and packages of crack cocaine. The cocaine found in the baby wipes box was in the same type of packaging as the cocaine found on the first floor. The baby wipes box and its contents were seized. A federal grand jury in the District of Rhode Island returned a two-count indictment charging Figueroa with possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1), and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1). Prior to trial, Figueroa moved to suppress the contents of the baby wipes box, claiming that the search of the closed, opaque box violated his Fourth Amendment right to be free from unreasonable searches and seizures. On May 30, 1996, after an evidentiary hearing, the district court denied Figueroa's motion to suppress. The court reasoned that Figueroa had a privacy interest in the box, but that the exigency of the circumstances justified the officer's search. Though Figueroa had been detained by the officers, the court found that "[i]t is reasonable and logical to conclude that [Peguero and Francois] might well have destroyed the evidence." The trial commenced at the conclusion of the suppression hearing, and on June 3, 1996, a jury found Figueroa guilty on both counts. On September 6, 1996, the court sentenced Figueroa to 123 months imprisonment. Figueroa now appeals, claiming that the district court erred in denying his motion to suppress. Pursuant to Ornelas v. United States, 517 U.S. 690 (1996), the standard of review is de novo for determinations of probable cause, clear error for findings of fact, and "due weight" to inferences judges and police officers may draw from the facts. Id. at 699. In United States v. Young, 105 F.3d 1 (1st Cir. 1997), we employed this "dual standard" in reviewing a motion to suppress: We review the district court's findings of fact for clear error. . . . Deference to the district court's findings of fact reflects our awareness that the trial judge, who hears the testimony, observes the witness' demeanor and evaluates the facts first hand, sits in the best position to determine what actually happened. By contrast, we review conclusions of law de novo and subject the trial court's constitutional conclusions to plenary review. Determinations of probable cause and reasonable suspicion, relevant to the constitutionality of law enforcement seizures and arrests under the Fourth Amendment, present mixed questions of law and fact which we review de novo. Id. at 5 (citations omitted). "[W]e can affirm the admission of evidence on any proper basis, even if the trial judge relied on a different ground." LaBarre v. Shepard, 84 F.3d 496, 500-01 (1st Cir. 1996) (citing United States v. Nivica, 887 F.2d 1110, 1127 (1st Cir. 1989)). In this appeal, Figueroa argues that, while the seizure of the box may have been constitutional under the "exigent circumstances" exception, the opening of the box was certainly unconstitutional. Figueroa cites several cases for the proposition that the exigent circumstances that may justify the seizure of a closed package do not justify the opening of the closed package which may have been properly seized. See United States v. Jacobsen, 466 U.S. 109, 114 (1984) ("Even when government agents may lawfully seize . . . a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package."); United States v. Doe, 61 F.3d 107, 111 (1st Cir. 1995) ("Although probable cause, as well as exigent circumstances, may support the warrantless seizure of an enclosed opaque container, . . . the same probable-cause showing is not necessarily sufficient to justify its subsequent warrantless search."); United States v. Garay, 477 F.2d 1306, 1308 (5th Cir. 1973) ("While the exigencies of the situation may well have justified the warrantless detention of [the defendants], they cannot validate the search of the suitcases made at the time when [the defendants] were under restraint . . . . At that point, [the defendants] were incapable of concealing or destroying the suitcases or their contents."). The government argues that the police officers were justified in searching the closed container for at least four reasons. First, the government argues that the police officers were justified by the continued exigent circumstances. Second, the government claims that the box previously held by Figueroa was abandoned in the second-floor apartment, and he therefore had no standing to challenge the search. Third, the government argues that the search and seizure of the box was incident to Figueroa's arrest. The government's final argument is that the box was still covered by the search warrant for the first floor from which the box had just been taken. In our view, the wisdom of the district court's reliance on the "exigent circumstances" exception to the warrant requirement is somewhat debatable, given the fact that Figueroa had been detained, and the exigency of the situation arguably had ceased, prior to the opening of the box. Indeed, counsel for the government stated that its argument based on the "exigency of the circumstances" was probably its weakest. We do not, however, base our opinion on the propriety of the district court's conclusion in that regard. Rather, after a careful review of the record, we find that this case falls squarely into the "abandonment" line of cases. It is well settled that if a defendant abandons property while he is being pursued by police officers, he forfeits any reasonable expectation of privacy he may have had in that property. SeeAbel v. United States, 362 U.S. 217, 241 (1960) (holding that it is lawful for the government to seize property that has been abandoned by the defendant); United States v. Lewis, 40 F.3d 1325, 1334 (1st Cir. 1994) (finding that defendant had "abandoned" a rock of cocaine that was tossed from his person during pursuit, and that the seizure of such property was lawful); United States v. Wilson, 36 F.3d 205, 209 (1st Cir. 1994) (holding that "because defendant could have had no reasonable expectation of privacy in the packet dropped and left behind in a public street, [the] inspection of it was not a search"); United States v. Sealey, 30 F.3d 7, 10 (1st Cir. 1994) (reasoning that dropping the contraband during pursuit of the defendant constituted abandonment of that contraband). "[T]he act of abandonment extinguishe[s] [a defendant's] Fourth Amendment claim." Sealey, 30 F.3d at 10. Determining whether certain property has been "abandoned" involves an objective test "under which intent may be inferred from words spoken, acts done, and other objective facts." United States v. Wider, 951 F.2d 1283, 1285 (D.C. Cir. 1991) (internal quotation marks omitted). In this case, the evidence showed that Figueroa saw the police approaching his apartment, and that he tried to flee from the scene, carrying with him the box in question. During the officers' pursuit, he attempted to stash the box in his neighbors' apartment. There is no evidence to suggest that he intended to retrieve the box at a later time, or that he obtained the owners' permission to leave the box with them for safekeeping. Therefore, when Figueroa left the box in that apartment, he abandoned it and all expectations of privacy therein. Figueroa argues that the facts of this case are distinguishable from those in the "abandonment" line of cases cited above, because he discarded his box in a private residence rather than in a public place. Therefore, he should not be deemed to have forfeited his privacy interest in the box. Furthermore, he argues, he should not be deemed to have "abandoned" the box, because the objective evidence shows that he intended to retrieve the box at a later time, perhaps when the officers had completed their business at the apartment. According to Figueroa, this case is more akin to the situation in a recent case decided by the Ninth Circuit Court of Appeals, United States v. Fultz, No. 97-30337, 1998 WL 334146 (9th Cir. June 24, 1998). In Fultz, the defendant lived "on and off" with his friend, Tiffany Kassedyne, and he stored many of his belongings in closed boxes in Kassedyne's garage. Law officers went to Kassedyne's house to investigate a store burglary, and Kassedyne gave them written permission to search the premises. She directed the officers to the specific area in the garage where the defendant stored his belongings. Without Kassedyne's specific consent to search Fultz's belongings, the officers opened the boxes and found the contraband involved in the case. In a split decision, the Ninth Circuit found that the search of the boxes violated the Fourth Amendment. Id. at *3. Initially, the court determined that Fultz had a reasonable expectation of privacy in his belongings, even though those belongings were kept in a place that was not exclusively controlled by him. Id. at *2. The court then found that Kassedyne had no actual or apparent authority to consent to the search of the defendant's belongings. Id. at *2-*3. Among other things, the court cited to Justice O'Connor's concurring opinion in United States v. Karo, 468 U.S. 705 (1984), for the proposition that a homeowner lacks the power to give consent to search the closed container of a guest in that home. The reasoning in Fultz does not persuade, because those facts are clearly distinguishable from those of the instant case. Figueroa was not a "guest" of his neighbors at the time he entered the apartment to flee from the officers. Furthermore, there was no evidence that Figueroa had previously obtained the permission of his neighbors to keep the box in their apartment, nor was there evidence that he intended to retrieve the box at a later time. We are mindful that the instant case is slightly different from the "abandonment" cases cited above, in that the contraband here was discarded in a private residence rather than in a public place. That distinction, however, makes no difference under these circumstances. Figueroa simply stashed the box in the nearest available place in hopes that it would not be discovered by the officers who were in pursuit of him. The legal result would be the same if Figueroa had put the box in the stairwell during the chase. When he left the box in the second-floor apartment, a place in which he concededly had no expectations of privacy, Figueroa relinquished any expectation of privacy he may have otherwise had in the box. See United States v. Morgan, 936 F.2d 1561, 1570-71 (10th Cir. 1991) (holding that defendant had "abandoned [a] gym bag and any privacy interests he had in it" when he tossed it into an acquaintance's yard while fleeing police, since the item was not "left to the care or responsibility of another" and since there was no "delayed indication of an intent to retain an expectation of privacy in the item"); United States v. Hershenow, 680 F.2d 847, 855-56 (1st Cir. 1982) (holding that a defendant who left a container in the barn of a nursing home where he was employed lost his reasonable expectation of privacy in the container because, inter alia, he "did not have regular access to the barn . . . and, most important, . . . had no right of control over the locus of the box"). Under these circumstances, we conclude that Figueroa's Fourth Amendment rights were not violated by the search of the box in question based on the fact that he "abandoned" the box during the officer's pursuit. Accordingly, we AFFIRM the decision of the district court. Concurrence Follows

WELLFORD, Senior Circuit Judge (Concurring). I agree with the reasoning set forth in the main opinion in this case. I write separately, however, to add that I would have also upheld the district court's decision to admit the evidence found in the opaque box because, in my view, the box and its contents were covered by the valid search warrant issued in this case. The search warrant covered the entire first floor at 40 Whittier Avenue. I would hold that the box, though it was taken out of the apartment immediately after the police arrived, should have been deemed to have been within the scope of the search warrant under these circumstances. </pre>

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United States v. Figueroa

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