USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 97-2101
UNITED STATES,
Appellee,
v.
DAMIAN FERRERAS,
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, Chief Judge,
Lipez, Circuit Judge,
and Fusté, District Judge.
_____________________
Alan Scribner, by appointment of the Court, for appellant.
Zechariah Chafee, Assistant United States Attorney, with whom
Margaret E. Curran, United States Attorney, was on brief, for
appellee.
____________________
September 15, 1999
____________________ TORRUELLA, Chief Judge. Appellant Damian Ferreras
("Ferreras") was charged with possession with intent to distribute
over fifty grams of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) & (b)(1)(A). The district court heard testimony on
Ferreras's motion to suppress the physical evidence seized in his
apartment and, on the same day, the court denied the motion.
Subsequently, the case was tried before a jury and Ferreras was
convicted of the sole count on which he was tried. At the
sentencing hearing, the government produced testimony that the
cocaine base was crack. The district court found that the
substance was crack and sentenced Ferreras on that basis. Ferreras
was sentenced to 121 months imprisonment and five years of
supervised release. As a condition of supervision, Ferreras was
ordered to surrender at the completion of his term of imprisonment
to the Immigration and Naturalization Service for deportation
proceedings. This appeal followed.
BACKGROUND
The following facts were adduced at trial. On
February 19, 1997, at 4:30 p.m., detectives from the Providence
Police Intelligence Bureau went to the vicinity of 30 Pekin Street,
Providence with a search warrant for the second floor apartment at
that address. 30 Pekin Street is a three story tenement house.
The detectives saw Damian Ferreras's car parked in front of the
house. Damian Ferreras came out of a side door of the house and
got into the car. The detectives stopped the car down the street
and told Ferreras that they had a search warrant for his apartment.
An electronic pager was seized from Ferreras and he and his car
were brought back to the house.
At the house, a detective used a key from the key ring
taken from the ignition of Ferreras's car to open the side door of
the building. A team of detectives went to the second floor and
searched the bedrooms, kitchen, and bathroom for narcotics.
Detectives Edward Leste and David Lussier went up the stairs to the
attic where three bedrooms had been constructed. Detective Lussier
used a key from Ferreras's key ring to unlock one of the bedroom
doors. In a small closet in this bedroom Detective Leste found a
pair of high leather boots. From one of the boots he withdrew a
clear plastic bag which held 101.74 grams of cocaine base. The
detective, who has extensive experience in seizures of crack
cocaine, recognized the cocaine base as being the lumpy, rocklike
substance known as crack. From the boot he also pulled $1,750 in
cash. Searching the room further, the detective found, in a frame
for a stereo speaker, an electronic digital scale of a type
commonly used to weigh narcotics. On top of the frame the
detective found several pieces of personal paperwork bearing the
name of Damian Ferreras, including recent court documents. The
detectives testified that pagers, quantities of cash, electronic
scales, and drugs, taken together, are common elements of drug
sales operations.
The bedroom had one bed mattress on a box spring and a
young man's clothing in the closet. There was no indication that
anyone other than Ferreras stayed in the bedroom. Ferreras was
brought to the Providence Police Station where he was escorted to
the Intelligence Bureau Office. He was informed of his Miranda
warnings in Spanish and English and questioned by Detective
Lussier. Ferreras told the detective that the boots found in his
closet by Detective Leste had been bought by Ferreras on Canal
Street in New York City. He said that the apartment where he was
staying belonged to his mother, that he slept in the upstairs
bedroom periodically, and that he had last slept in the bedroom two
nights previously but had spent the last night at his girlfriend's
place. Ferreras went on to say that the money in the boot belonged
to him, but that the drugs belonged to another man, for whom
Ferreras was holding the drugs. Ferreras said he did not know the
name of the other person but could call him on the telephone.
The crack seized from the boot was analyzed at the Rhode
Island Drug Chemistry Laboratory and tested positive for the
presence of cocaine base. The drugs weighed 101.74 grams (3.58
ounces). The detectives testified from their experience that the
value of crack was about $1,000 to $1,200 per ounce and that this
quantity of crack was definitely intended for distribution.
Ferreras moved to suppress the physical evidence on
grounds that the search of the third floor exceeded the scope of
the warrant. The government entered into evidence the search
warrant, the complaint, and the affidavit.
The face of the affidavit showed that Detective Edward
Leste of the Providence Police Department had information from a
reliable informant that Damian Ferreras "is storing and selling
cocaine from his apartment located at 30 Pekin Street, 2nd floor
apt., and also storing cocaine in the basement . . . ." The
affidavit described 30 Pekin Street in Providence as a "2 1/2 story
dwelling and being grey with white trim in color."
The affidavit further showed that Detective Leste, within
a few days prior to February 19, 1997, had sent an informant into
30 Pekin Street to buy cocaine. The informant came out with
cocaine and said that he had bought it from Damian Ferreras while
inside the second floor apartment.
On February 19, 1997 a state court judge issued a warrant
to search for cocaine, drug sale paraphernalia, and drug money.
The search warrant stated:
Place and person to be searched:
30 Pekin Street, 2nd floor apartment and basement
Damian Ferreras, John Doe, dob-2-21-75.
Later that day a Providence Police raid team went to
execute the warrant at 30 Pekin Street. Ferreras walked out of the
house, got into a car, and drove down the street. He was stopped
by the police and brought back to the building he had just left
along with a set of keys from the ignition of the car he had been
driving. The police used a key from the ring to enter a side door
on the ground floor of the building.
Just inside the entrance there was a door leading to the
cellar and a flight of stairs up to the second floor. At the top
of the stairs was a door with a lock. The door opened into a small
hallway on the second floor, and was closed but not locked.
About five feet to the right of the stairway door was a
locked door which the police opened with a key from Ferreras's key
ring. Through this door, the police entered living quarters on the
second floor including a kitchen, two bedrooms, a bathroom, and a
living room. About eight feet across the vestibule from the door
to the second floor living quarters another set of steps led to the
attic. There was no door at the bottom, or at the top of the steps
from the second floor hallway to the attic.
In the attic the police saw a hall with three rooms in a
row on the left-hand side. These rooms appeared to have been
recently constructed and not part of the original building. The
first room's door was closed and locked and a detective opened it
with another key from Ferreras's key ring. Inside was a box-spring
and mattress and a closet full of a man's clothes. Inside a boot
the police found the over 100 grams of crack. There was also a
television set with a cable leading through a hole in the floor to
the second story.
The second room also had a bed and appeared to have been
lived in. The third one had only a mattress. The right-hand side
of the hallway was divided into two unfinished rooms which were
still under construction and revealed plaster, sheetrock, tools,
dirty floors, and in one room a metal can of urine. There was no
sink, shower, bathtub, kitchen, refrigerator, stove, or pantry, and
no running water anywhere in the attic. There was a space heater
in one of the attic rooms. The only access to the attic was via
the set of steps from the small hallway on the second floor. A
detective examined the electric meters on the exterior of the
building and found that one was for the first floor apartment, and
the other for the second floor. There was none for the attic.
Ferreras called his brother Victor Ferreras who testified
that on February 19th there was a door at the foot of the steps
leading to the attic, that there was a working sink and toilet in
the attic, and that there had been a shower but that he had
dismantled it before the date of the raid. Victor Ferreras said
that he had been manager of the property and that his brother and
another man lived in the attic. He said his mother lived on the
second floor but had been away in the Dominican Republic on the day
the police entered.
In rebuttal the government entered into evidence the
testimony of a defense investigator given at a bail hearing on the
case on March 6, 1997. That investigator testified that he had
examined the attic just after the police raid and had not seen a
bathroom.
The district court found that Victor Ferreras's testimony
was not credible. Based on the facts described by the police, the
court found that the attic and second floor were all one apartment.
He thus found that the search of the attic was within the scope of
the search warrant.
At sentencing, Ferreras argued that the substance that
was identified by the chemist as cocaine base at trial was not the
form of cocaine base known by the street term "crack." The
government called as its witness Sargent David Lussier who had
served nearly eleven years on the Providence Police force. During
his tenure on the force he had been involved in hundreds of
investigations of crack cocaine trafficking, including seizures of
the drug and arrests of those trafficking it. He had participated
in a number of law enforcement courses, including a two week school
run by the Drug Enforcement Administration, during which he had
studied aspects of drug investigations. Lussier explained how
crack is prepared, based on his instruction at school. At the
hearing he examined the cocaine base which had been seized from
Ferreras's boot and noted that it was hard, lumpy, and brown. He
said that those were the characteristics of crack cocaine and gave
his opinion that the substance was crack. On cross-examination he
further described the substance as crack based on "the feel, the
texture, the sight, everything I know about the subject . . . ."
The court declared that it was satisfied "from all the
evidence in the case" that Ferreras had possessed crack cocaine and
imposed the minimum sentence of imprisonment within the applicable
guideline range, 121 months, as requested by the government.
DISCUSSION
I. The Suppression Motion
On appeal, Ferreras challenges the district court's
denial of his suppression motion, contending that the search of the
attic at his 30 Pekin Street residence violated the Fourth
Amendment. His argument is without merit.
Our review of a district court's decision to grant or
deny a suppression motion is plenary. See United States v.
McCarthy, 77 F.3d 522, 529 (1st Cir. 1996). "We defer, however, to
a district court's factual findings if, on a reasonable view of the
evidence, they are not clearly erroneous." United States v.
DeMasi, 40 F.3d 1306, 1311 (1st Cir. 1994). A clear error exists
only if, after considering all the evidence, we are left with a
definite and firm conviction that a mistake has been made. See
United States v. McLaughlin, 957 F.2d 12, 17 (1st Cir. 1992).
Moreover, we will uphold a district court's decision to deny a
suppression motion provided that any reasonable view of the
evidence supports the decision. See United States v. García, 983
F.2d 1160, 1167 (1st Cir. 1993).
The Fourth Amendment serves to protect the individual's
interest in privacy. Any search intruding upon that privacy
interest must be justified by probable cause and must satisfy the
particularity requirement, which limits the scope and intensity of
the search. See United States v. Bonner, 808 F.2d 864, 867 (1st
Cir. 1986). When investigators fail to limit themselves to the
particulars in the warrant, both the particularity requirement and
the probable cause requirement are drained of all significance as
restraining mechanisms, and the warrant limitation becomes a
practical nullity. See id. The concern here is the particularity
requirement's limitation on the area to be covered by the search
operation.
The authority to search granted by any warrant is limited
to the specific places described in it, and does not extend to
additional or different places. See id. at 868. However, "search
warrants and affidavits should be considered in a common sense
manner, and hypertechnical readings should be avoided." Id. For
example, warrants authorizing a search of "premises" at a certain
address authorize a search of the buildings standing on that land.
See id. (citing United States v. Williams, 687 F.2d 290, 293 (9th
Cir. 1982); United States v. Meyer, 417 F.2d 1020, 1023 (8th Cir.
1969)). This Court has held that a warrant authorizing a search of
"the premises known as a single family trailer . . . with attached
carport," also authorized the search of a disabled car, parked
adjacent to the carport, and a birdhouse hanging from a tree about
fifteen feet from the trailer steps. See United States v. Asselin,
775 F.2d 445, 447 (1st Cir. 1985).
In United States v. Heldt, 668 F.2d 1238, 1265 (D.C. Cir.
1981), the language "suite of offices of Mr. Heldt" was given just
as broad an interpretation as "premises" was given in Asselin. The
court looked at the question of whether or not a free-standing
office, not mentioned in the warrant, belonging to a person who did
not work for Heldt, could reasonably have been viewed by the
searching agents as constituting part of "the suite of offices of
Mr. Heldt." See Heldt, 668 F.2d at 1263. The office was
reasonably considered by the searching agents as part of, or even
appurtenant to, the "properties" to be searched. See id. at 1265;
see also United States v. Príncipe, 499 F.2d 1135 (1st Cir. 1974)
(where warrant authorized search of particular apartment in a
building, and cabinet was three to six feet away from entrance to
apartment in small hallway opposite door to apartment, officers
executing search warrant could reasonably suppose cabinet was
appurtenant to apartment).
Just as in United States v. Bonner, 808 F.2d 864, 868
(1st Cir. 1986), where we held that even though Bonner's "detached
two car garage" had never been mentioned in the description of
places to be searched, it would have been reasonably considered
within the scope of the warrant, the search of the attic at 30
Pekin Street must be reasonably considered part of the area
intended to be searched.
When one reached the second floor apartment at 30 Pekin
Street, there was a door with a lock (although at the time of the
search, the door was closed but not locked). The door opened into
a small hallway on the second floor. In this hallway, about eight
feet across the vestibule from the door to the second floor living
quarters, another set of steps led to the attic. There was no door
at either the bottom or the top of the steps securing access to the
attic.
It is clear from the evidence that the attic was not
independent from the second floor living quarters. Cable
television was supplied to the attic by a cable through a hole in
the floor to the second story. While three of the rooms in the
attic had either a mattress or a bed, two rooms in the attic were
unfinished and contained sheetrock, tools, dirty floors, and a
metal can of urine. There was no sink, shower, bathtub, kitchen,
refrigerator, stove, food, or running water in the attic. While
there was an electric meter for the first floor, and one for the
second floor, there was none for the attic.
Given that: (1) the attic was open to the second floor,
but not to the street or the first floor apartment; (2) the third
floor was not equipped for independent living; and (3) the occupant
of the third floor had access to the second floor kitchen and
bathroom, the district court's finding that the two floors were all
one apartment, and conclusion that the search warrant for the
second floor apartment included the half story above it is
eminently reasonable and supported by the evidence.
II. Sentencing
Ferreras contends that the government failed to prove
that the 101.74 grams of cocaine base seized from the apartment was
in fact crack cocaine. He complains that the government produced
no evidence as to the water solubility of the cocaine base. In
light of our opinion in United States v. Martínez, 144 F.3d 189
(1st Cir. 1998), his contentions are meritless.
In Martínez, we rejected an almost identical challenge.
See id. at 190. We held squarely that, once the government laid a
proper foundation "by introducing a chemical analysis proving that,
chemically, the contraband was cocaine base," id. at 190 (quoting
United States v. Robinson, 144 F.3d 104, 109 (1st Cir. 1998)
(ellipses omitted), no further scientific evidence was needed.
Instead, the government could bridge the evidentiary gap between
cocaine base and crack cocaine by presenting lay opinion evidence
(or an opinion proffered by an expert who possessed practical as
opposed to academic credentials) from "a reliable witness who
possesses specialized knowledge" (gained by experience in dealing
with crack or familiarity with its appearance and texture). See
id.; see also Robinson, 144 F.3d at 108-09. Martínez and Robinson
are controlling here.
As in Martínez, Ferreras posits that the government
failed to introduce testimony as to the water solubility of the
cocaine base. That statement is true as far as it goes, but it
does not take Ferreras very far. Water solubility is of no
assistance in distinguishing among forms of cocaine base. See
Martínez, 144 F.3d at 190. As we wrote in Robinson, 144 F.3d at
108-09: "Chemical analysis cannot distinguish crack from any other
form of cocaine base because crack and all other forms of cocaine
base are identical at the molecular level. Thus, no further
scientific testimony would have been of any conceivable
assistance . . . ."
In this case, as in Martínez and Robinson, the government
adduced competent scientific evidence from a chemist to prove that
the 101.74 grams of contraband associated with Ferreras's arrest
was cocaine base. Given the witness's qualifications, his opinion
constituted competent proof of the fact that the substance was
cocaine base.
Once the government introduced the chemical testimony, no
additional scientific evidence was needed. From that point
forward, as in Martínez and Robinson, competent lay testimony, such
as that of Detective Leste, remarking on the substance's
distinctive appearance and texture and identifying it as crack,
completed the final link in the evidentiary chain. See Martínez,
144 F.3d at 190.
We need say no more, no less. In Robinson, we stated
that "[o]n the strength of [such] proof, and in the utter absence
of any controverting evidence," the district court's finding
"easily survive[d] clear-error review." Robinson, 144 F.3d at 109.
CONCLUSION
For the reasons stated above, we affirm.