United States Court of Appeals
For the First Circuit
No. 16-2009
UNITED STATES,
Appellee,
v.
HECTOR SERRANO-ACEVEDO,
Defendant, Appellant.
No. 16-2049
UNITED STATES,
Appellee,
v.
VIRGILIO DIAZ-JIMENEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
Rafael F. Castro Lang for appellant Hector Serrano-Acevedo.
James L. Sultan, with whom Kerry A. Haberlin and Rankin &
Sultan were on brief, for appellant Virgilio Diaz-Jimenez.
Nicholas W. Cannon, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
June 13, 2018
LYNCH, Circuit Judge. We address in this case important
questions of Fourth Amendment protections in a person's home. As
we did in United States v. Delgado-Pérez, 867 F.3d 244 (1st Cir.
2017), we conclude that the government overstepped the mark and
that a motion to suppress the fruits of a warrantless search of a
defendant's home in Puerto Rico should have been granted.
Virgilio Diaz-Jimenez ("Diaz") and Hector Serrano-
Acevedo ("Serrano"), after a joint trial, were found guilty of
armed bank robbery, in violation of 18 U.S.C. § 2113, and
possession of a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924. Both defendants
challenge their convictions, arguing that key portions of the
evidence introduced against them were improperly admitted.
Diaz argues that the government's warrantless search of
his home violated his Fourth Amendment rights and that the district
court erred by denying his motion to suppress the evidence
uncovered during that search. Finding that the government's search
does not fit within the protective sweep or voluntary consent
exceptions under Fourth Amendment doctrine, the only even arguably
relevant exceptions to the warrant requirement, we hold that the
search of Diaz's home was unconstitutional. The evidence uncovered
during that search was central to the prosecution's case at trial,
rendering this error prejudicial. We vacate Diaz's conviction and
remand for further proceedings consistent with this opinion.
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Serrano, the other defendant, argues that several
testimonial statements made during the trial, some of which
referenced statements made by a confidential informant who did not
testify, were impermissible hearsay testimony. If there was any
error, it was harmless, so we affirm Serrano's conviction.
I. Facts
We review the district court's "legal conclusions
involved in denying a motion to suppress the evidence de novo and
its findings of fact for clear error." Delgado-Pérez, 867 F.3d at
250 (quoting United States v. Marshall, 348 F.3d 281, 284 (1st
Cir. 2003)). "On a motion to suppress evidence seized on the basis
of a warrantless search, the presumption favors the defendant, and
it is the government's burden to demonstrate the legitimacy of the
search." Id. (quoting United States v. Winston, 444 F.3d 115,
123-24 (1st Cir. 2006)).
Two armed men entered the Oriental Bank in San Lorenzo,
Puerto Rico around 8:30 AM on June 17, 2013. The first gunman
brandished his firearm and ordered the bank's security officer to
"kneel down." The robbers told everyone in the bank to get on the
ground. The second gunman then ordered the bank's employees to
open the vault. After the bank employees turned over the money in
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the vault area to the robbers, the gunmen left the bank and drove
away in a white van.
The Puerto Rico Police Department provided a description
of the van and its likely escape routes over the police radio.
Officer Hector Ortíz-Alicia, hearing this, drove towards one of
the possible escape routes. Once in the area, he saw a white van
stopped by the side of the road. Ortíz-Alicia testified at trial
that an armed individual got out of the van and, despite Ortíz-
Alicia's orders to stop, fled into a grassy area nearby. Other
testimony at the suppression hearing was that two people were seen
leaving the van.
Ortíz-Alicia requested backup. Police searched the area
with the help of a helicopter, but were unable to find the armed
individual. The FBI and the Immigration and Customs Enforcement
("ICE") Task Force reported to the scene. Agent Aristedes Vázquez-
Díaz from the ICE Task Force reported to Agent Félix Rivera from
the FBI that he had been contacted by an informant who had
information about the robbery.
Shortly thereafter and at a different place, Agent
Rivera and one or more ICE Task Force officers met with a
confidential source who provided the nicknames -- El Domi and El
Músico -- and cell phone numbers of two people who the source said
were responsible for the robbery. The source stated that he had
been in contact with the two robbers since the robbery and that
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the robbers were hiding in nearby mountainous terrain and were
waiting for the police helicopter to leave. The source stated
that the robbers were expecting the source to pick them up. Agent
Rivera had been planning to use this information to arrest the
robbers at the pickup point. However, around 1:00 or 1:30 PM, the
robbers notified the source that they had left their hiding place
and no longer needed to be picked up. This information was passed
on to law enforcement.
Law enforcement officers contacted the phone company in
order to track the location of the robbers' two cell phones. One
of the cell phones eventually became stationary in a rural,
residential area in Barrio Borinquen. Between 3:30 and 4:30 PM,
law enforcement officers traveled to that location, stopping at a
crossroads close to the three-story home where they had been told
the cell phone was located. The home was large and had a pool and
a fence. Suspecting that the robbers were armed, Agent Rivera
called in a SWAT team.
As the law enforcement officers waited at the crossroads
for a SWAT team to arrive before approaching the residence,
defendant Serrano drove through the crossroads in a blue Mitsubishi
Nativa. Agent Vázquez-Díaz and Agent Julio Sánchez-Martínez, also
from the ICE Task Force, recognized Serrano as El Músico, the
person who the confidential informant had said was one of the
robbers. Vázquez-Díaz had seen Serrano driving a blue Mitsubishi
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Nativa before. Sánchez-Martínez and Vázquez-Díaz gestured to
Serrano to stop and blocked the Nativa's path with their patrol
car.
The agents got out of the patrol car, approached
Serrano's car, and saw a gun in it. The agents twice told Serrano
not to reach for the gun, Serrano eventually complied, and the
agents arrested him. Serrano admitted that the firearm was his.
The agents recovered a dark hat and a black jacket from the
vehicle. FBI agents later recovered a pair of blue and black Nike
tennis shoes from inside the car and a bag full of cash hidden in
the car's air filter. After the arrest of Serrano, the monitored
cell phone was still located at the three-story house.
The evidence at the suppression hearing about what
happened thereafter at the house was based on the testimony of the
FBI agent in charge, Agent Rivera, who was not actually at the
home initially. Around thirty minutes after Serrano's arrest, the
SWAT time arrived at the crossroads near the large three-story
home where the cell phone was said to be located. While Agent
Rivera waited behind, the SWAT team approached the home, knocked
on the door, and heard a toilet flushing and people talking inside
the home. The SWAT team opened the door and called to the people
inside the home, but remained outside. Diaz's wife came out of
the home first and was detained, and Diaz came out shortly
thereafter. Diaz was immediately arrested and was at some point
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handcuffed (the record does not reveal whether Diaz's wife was
also handcuffed). SWAT team then, after Diaz was arrested outside,
entered and did a sweep of the home.
During this sweep, the SWAT team "went to different
places, and they saw money on top of the bed, they saw money inside
the toilet." After the SWAT team had come outside following the
search, they reported what they had seen to Agent Rivera, who by
then had arrived. Agent Rivera then asked for Diaz's consent to
conduct a search of his home. Diaz was arrested and in handcuffs
at the time. Agent Rivera testified that Diaz consented verbally
but refused to sign a form to that effect. The FBI then did a
subsequent search of the house and recovered around $24,000 in
cash and a box for a pistol. Diaz's wife consented to the search
after it had occurred, and did so in writing. The cash found was
bound with initialed bands, and bank tellers at the Oriental Bank
later confirmed that their initials were on the bands.
Diaz filed a motion to suppress the evidence recovered
during the warrantless search of his home. The magistrate judge
held a hearing on the motion. Agent Rivera was the prosecution's
only witness at that hearing. Agent Rivera did not testify that
he was the one who ordered the SWAT team to perform the sweep, but
he provided reasons for why he believed the search was justified.
The prosecution primarily argued that the search was permissible
because the officers were in "hot pursuit" of Diaz at the time.
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It did not even attempt to justify the search as a protective sweep
meant to protect the safety of the officers.
Diaz, in opposition, argued that there was no "hot
pursuit" because the SWAT team's search was conducted more than
eight hours after the robbery and, further, he had already been
placed under arrest before the sweep. The magistrate judge
recommended that the district court deny Diaz's motion, based on
acceptance of the prosecution's hot pursuit theory. The district
court adopted that recommendation.
Evidence obtained during the search of Diaz's home was
used at trial by the prosecution. A jury found Diaz and Serrano
guilty of armed bank robbery and use of a firearm in the commission
of a federal felony. Diaz was sentenced to 192 months'
imprisonment and five years' supervised release. Serrano was
sentenced to 180 months' imprisonment and five years' supervised
release.
II. Merits
A. Diaz
Diaz challenges the district court's denial of his
motion to suppress the evidence recovered from his home, arguing
that the search violated his Fourth Amendment rights and that the
admission of the evidence recovered in that search was prejudicial.
The prosecution, on appeal, attempts to justify the search under
the protective sweep doctrine. We bypass the issue of whether the
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prosecution waived its protective sweep exception argument because
the argument fails on its merits.
The Fourth Amendment forbids unreasonable searches and
seizures, and a search of an individual's home "is generally not
reasonable without a warrant issued on probable cause." Maryland
v. Buie, 494 U.S. 325, 331 (1990). One exception to this rule is
"a protective sweep conducted in conjunction with the arrest of an
individual in his home."1 Winston, 444 F.3d at 118 (citing Buie,
494 U.S. at 327). "A protective sweep is 'a quick and limited
search of premises, incident to an arrest and conducted to protect
the safety of police officers or others.'" Delgado-Pérez, 867
F.3d at 251 (quoting Buie, 494 U.S. at 327). In order for a
warrantless search to be a protective sweep, "there must be
articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably prudent
officer in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene." Buie,
494 U.S. at 334.
The prosecution argues that the search of Diaz's home
was permissible because the officers had reason to believe that a
person involved in the robbery was inside Diaz's home when they
arrived and had remained inside the home both after the SWAT team
1 The government does not defend its hot pursuit theory on
appeal.
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breached the door and ordered everyone out and after Diaz and his
wife had come outside and Diaz had been arrested. As Serrano and
Diaz had already been detained at the time of the sweep and could
not possibly have posed a threat, the government's argument depends
on there being "articulable facts" supporting a reasonable
inference that, at the time of the sweep, there was a third bank
robber in the house who was armed and remained inside Diaz's home
despite Diaz and his wife having come outside and been apprehended.
Id.
The government does not provide any facts supporting its
theory that a third person remained in the house after Diaz and
his wife came out. Nor does it attempt to explain why it could
not have gotten a warrant before entering the house. Agent Rivera
admitted that they had received no information suggesting the
existence of a third participant in the bank robbery. Indeed, the
evidence known to the officers then was that there were two people
who robbed the bank and then got away. Two people were seen
getting into a van at the scene of the crime. An informant had
told authorities that "two individuals known to him . . . were
responsible for this bank robbery." (emphasis added). Agent
Rivera stated at the suppression hearing that the information law
enforcement had was that two people had been spotted parking the
van by the side of the road several hours after the robbery and
fleeing into the surrounding woods. Law enforcement had arrested
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Serrano during a traffic stop and Diaz at his home shortly
thereafter. That accounts for the two people seen during the
robbery and leaving in the van, and abandoning the van later. This
alone undercuts the theory that there was a third person in Diaz's
house. Even if there had been a third robbery participant in the
van when it left the bank, he had separated from Diaz and Serrano
before the van stopped. There was no articulable basis to believe
that he would be in Diaz's home.
Agent Rivera testified that because "as soon as the [two]
individuals left [the bank], they went inside the van and left the
location," he simply "assumed that there was a third waiting for
them in the van." (emphasis added). This assumption was based on
unfounded speculation, not "articulable facts" in the record.
Delgado-Pérez, 867 F.3d at 251.
At oral argument, defense counsel asserted that
"protective" sweeps are done as a "standard practice" in Puerto
Rico regardless of the circumstances and that that may be what
happened here. Neither explanation satisfies the constitutional
requirements.
We reverse the district court's ruling denying Diaz's
motion to suppress. The physical evidence recovered during the
sweep, including the money from the bank, must be excluded as
"unlawful fruit of the protective sweep." Id. at 257.
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That does not end the matter. The prosecution argues
that, even if the sweep was impermissible, Diaz's later consent to
a search of his home -- while he was outside the home, under
arrest, and in handcuffs and after the SWAT team had entered his
home -- independently led to a constitutional search that recovered
additional money inside Diaz's home.2 Given that the consent
followed an illegal search, the evidence recovered in the consent
search should still be suppressed if it "bear[s] a sufficiently
close relationship to the underlying illegality."3 Delgado-Pérez,
867 F.3d at 256 (quoting New York v. Harris, 495 U.S. 14, 19
(1990)). This inquiry looks to factors including "temporal
proximity, the presence of intervening circumstances, and the
purpose and flagrancy of the official misconduct." Id. at 257
(internal quotation marks omitted) (quoting Brown v. Illinois, 422
U.S. 590, 603-04 (1975)).
As a matter of law, once the search has been found
illegal and a causal connection is evident, the government bears
the burden of showing that Diaz's consent was sufficiently
2 The district court found that Diaz's wife's consent did
not justify the warrantless search because she provided it after
the second search had already begun. The government does not
challenge that finding on appeal.
3 Because we hold that Diaz's consent to the second search
was tainted by the illegality of the SWAT team's sweep, we need
not decide whether Diaz's consent was "knowingly, intelligently,
and voluntarily given." United States v. Marshall, 348 F.3d 281,
286 (1st Cir. 2003).
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attenuated from the illegal search. See United States v. Kornegay,
410 F.3d 89, 94 n.3 (1st Cir. 2005). The prosecution did not even
attempt to make such a showing. Agent Rivera sought and received
consent immediately after the SWAT team told him that they saw
money in the house during the "protective" sweep and once Diaz was
already in handcuffs. The record provides no indication that Diaz
would have consented to the search if not for the unconstitutional
sweep and what it uncovered. In response to this strong factual
connection, the government "makes no argument as to why [Diaz's]
consent was not the tainted fruit of the unlawful sweep." Delgado-
Pérez, 867 F.3d at 258.
Undaunted, the government next argues that any error is
harmless because the "remaining evidence introduced at trial,"
including Diaz's former cellmate's testimony that Diaz made a
jailhouse admission to his cellmate that he acted as a lookout
during the robbery and the cell-site data showing the phone was
located near the location of the robbery and in Diaz's home,
"established that he participated in the robbery." Given the
constitutional error in this case, we must remand for a new trial
unless the error was "harmless beyond a reasonable doubt." United
States v. Leon-Delfis, 203 F.3d 103, 112 (1st Cir. 2000) (quoting
Milton v. Wainwright, 407 U.S. 371, 372 (1972)).
The evidence recovered from Diaz's home was central to
the government's case, so the error was certainly not harmless
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beyond a reasonable doubt. See id. (concluding that the admission
of "highly probative" evidence "likely to be at the center of a
jury's attention," which was obtained in violation of the
defendant's constitutional rights and which should have been
suppressed at trial, was not harmless beyond a reasonable doubt).
The bands around the cash found in Diaz's home, which were
initialed and later identified by Oriental Bank employees,
directly linked Diaz to the robbery. The government referenced
this evidence repeatedly throughout closing argument. The pistol
case recovered from Diaz's home was also used to connect him to
the robbery.
The government's other evidence of guilt is weak in
comparison. Roberto Capo-Ortiz, Diaz's former cellmate, testified
that Diaz admitted to him that he acted as a lookout during the
robbery. There was no purported admission that Diaz was one of
the robbers. Diaz argues that Capo-Ortiz's testimony was self-
interested and untrustworthy. Indeed, Capo-Ortiz is a convicted
felon who testified in this case in the hope of having his twelve-
year sentence reduced. The prosecution's cell-site evidence
places cell phones registered to Diaz near the bank, in the woods
near where the van was abandoned, and finally near his home. While
that is relevant evidence, it is not so strong as to make a guilty
verdict so likely as to render the admission of the evidence
recovered from Diaz's home harmless. Given the centrality of the
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money to the government's case at trial, we cannot find that the
error was harmless beyond a reasonable doubt.
B. Serrano
Serrano's only argument4 is that several testimonial
statements made by Agent Sánchez-Martínez and Agent Vázquez-Díaz
were improper hearsay. The most potentially damaging statement --
Vázquez-Díaz's testimony that an informant told him the names of
the robbers -- was stricken from the record and was subject to a
curative jury instruction. Serrano never requested more regarding
the statement, so our review is for plain error. United States v.
Colón-Díaz, 521 F.3d 29, 33 (1st Cir. 2008). "When a witness
strays into forbidden territory, . . . strik[ing] the wayward
remark and instruct[ing] the jury to disregard it" will usually
"suffice to safeguard the aggrieved party's rights." United States
v. Lee, 317 F.3d 26, 35 (1st Cir. 2003). Serrano, who falsely
claims that this statement was admitted into evidence, provides no
credible reason why the district court's remedy was plainly
erroneous.
Serrano also challenges the admission of testimony from
Roberto Capo-Ortiz that Diaz told Capo-Ortiz that Diaz and Serrano
committed the robbery. Serrano argues that this is inadmissible
4 Serrano does not argue that, if the Diaz verdict is
vacated, his must be as well, and we see no basis for such an
argument.
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hearsay because Diaz's statement was not self-inculpatory under
Federal Rule of Evidence 804(b)(3). Yet Capo-Ortiz later testified
that Serrano himself confessed. This means that Diaz's alleged
statement to Capo-Ortiz that Serrano had participated in the
robbery added little to the prosecution's case, making the
admission of that statement from Diaz harmless. See United States
v. Perkins, 926 F.2d 1271, 1280 (1st Cir. 1991) (citing United
States v. Benavente-Gomez, 921 F.2d 378, 386 (1st Cir. 1990)).
We need not address whether the remaining statements
were hearsay because any error was harmless. "The admission of
improper testimony is harmless if it is 'highly probable that the
error did not influence the verdict.'" United States v. Flores-
De-Jesús, 569 F.3d 8, 27 (1st Cir. 2009) (quoting United States v.
Casas, 356 F.3d 104, 121 (1st Cir. 2004)). The evidence against
Serrano was overwhelming. He was arrested with a bag full of cash
hidden in his car. His car contained a pair of black and blue
Nike tennis shoes, and a witness at trial described the robber as
wearing "Nike black and blue shoes." His car also contained a
handgun. Given the strength of this and other evidence, it is
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highly probable that the alleged errors Serrano identifies did not
affect the outcome of the trial.
III. Conclusion
We vacate Diaz's conviction and remand for further
proceedings consistent with this opinion. We affirm Serrano's
conviction.
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