UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 91-5573
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERTO GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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(July 26, 1992)
Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and HARMON,
District Judge.1
PER CURIAM:
Defendant-Appellant Roberto Gonzalez appeals his conviction
for possession of heroin with intent to distribute, asserting error
in the denial of his motion to suppress his statements to officers,
the admission of hearsay statements of confidential informants, and
the admission of Defendant's statements without prior discovery of
their substance. Finding no error in any of the rulings, we
affirm.
I. The Motion to Suppress
Gonzalez was arrested in his home for possession of heroin
with intent to distribute. Over Defendant's objection, the
arresting officer, Joe Arabit, testified about statements Gonzalez
made after his arrest. Gonzalez had moved to suppress the
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District Judge of the Southern District of Texas, sitting by
designation.
statements he gave Arabit because they were made pursuant to a
warrantless arrest inside the Gonzalez residence. Finding the
initial warrantless arrest justified by exigent circumstances, the
district court denied the motion to suppress. We affirm.
"When reviewing a trial court's ruling on a motion to
suppress, we accept the court's factual findings unless clearly
erroneous or influenced by an incorrect view of the law, and view
the evidence in a light most favorable to the prevailing party. We
review questions of law de novo." United States v. Capote-Capote,
946 F.2d 1100, 1102 (5th Cir. 1991), cert. denied, 60 U.S.L.W. 3798
(1992).
Applying this deferential standard, we find no error in the
district court's factual finding of exigent circumstances. The
circumstances elucidated by Arabit's testimony, viewed favorably to
the prosecution, were as follows. On June 30, 1990, a few days
before the arrest, Arabit first learned from a confidential
informant that Gonzalez was a trafficker in cocaine and heroin.
Working undercover on July 3, Arabit received information that
Gonzalez sold multi-ounce quantities of heroin from his home. The
day before the arrest, on July 5, two informants told Arabit that
they had recently seen heroin at the Gonzalez residence.
Finally, on July 6, the morning of the arrest, shortly before
11 o'clock, Arabit received information from one of his informants
that he saw heroin again in the Gonzalez home, and that it would be
moved within the hour. Officers entered the house at 11:45 a.m.
Gonzalez was arrested and read his rights at that time. Although
Arabit had intended to get a warrant before going to the house, he
decided not to get a warrant until after he secured the house. His
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decision was based on the information that Gonzalez was going to
move the heroin within the hour. Further, Arabit testified,
It would have been very difficult to set up
any type of surveillance on this street
without having been detected. And the only
reason that we would have set up surveillance
prior to this would be to be able to get a
warrant and enter the house with a warrant.
Surveillance would have been detected, the
heroin would have either been destroyed or
moved. At least that's my feeling.
And if we would have not set up
surveillance and had gotten a warrant anyways,
the heroin would have probably been gone by
the time we got there.
Reasonable fear of the destruction or removal of evidence is
an exigent circumstance that may justify a warrantless entry into
a private home. Capote-Capote, 946 F.2d at 1103; United States v.
Webster, 750 F.2d 307, 326 (5th Cir. 1984), cert. denied, 471 U.S.
1106 (1985); United States v. Thompson, 700 F.2d 944, 946-47 (5th
Cir. 1983). The Government has shown the officer's reasonable
belief that the drugs would be removed within the hour and that, if
he set up surveillance, the drugs would be destroyed. Given these
facts, the district court's finding of exigent circumstances is not
clearly erroneous.
Defendant makes much of the fact that Arabit did not proceed
directly to Gonzalez's house upon receiving his latest information
from the informant. Some forty-five to fifty minutes elapsed
between the last tip and the entry into the Gonzalez residence.
According to Gonzalez, Arabit's failure to immediately assemble his
team and head to the Gonzalez home is inconsistent with the claim
of exigency, because it indicates that Arabit was in no great hurry
to search the house.
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Arabit spent those minutes computer-checking Gonzalez's
address and criminal history, driving by the house a few times, and
assembling seven to ten officers. Only then did Arabit proceed to
Gonzalez's house. He testified that he had heard of obtaining a
warrant by giving an affidavit over the telephone, but had never
done it before; he supposes that in that time frame he could have
obtained a search warrant. In fact it took Arabit an hour and a
half to obtain the warrant.
Arabit took three to four minutes to check on Gonzalez on the
computer and another twenty minutes to drive to the house. He took
some time to assemble a team of officers, which he wanted for
security purposes. The court may have concluded that the officer's
use of these forty-five minutes was not unreasonable or
inconsistent with the claim of exigency. "In any event, the
reasonableness of a search under exigent circumstances is not
foreclosed by the failure to obtain a warrant at the earliest
practicable moment." United States v. Gardner, 553 F.2d 946, 948
(5th Cir. 1977), cert. denied, 434 U.S. 1011 (1978). Viewing these
facts with reasonable inferences in favor of the Government, we
find no error in the court's conclusion that the warrantless entry
was justified by exigent circumstances. Affirming the finding of
exigent circumstances, we necessarily hold that the entry was legal
and a warrant was not required. See Capote-Capote, 946 F.2d at
1102 (recognizing that although we begin with the principle that a
warrantless entry into a home is presumptively unreasonable under
the Fourth Amendment, an exception to the warrant requirement is
the presence of exigent circumstances). Finding no Fourth
Amendment violation, we need not inquire whether Gonzalez's
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statements were tainted "fruit" of an illegality. Cf. New York v.
Harris, 495 U.S. 14 (1990); Wong Sun v. United States, 371 U.S. 471
(1963). The trial court correctly admitted the statements.
II. Hearsay Statements of Informants
Gonzalez moved to exclude Arabit's trial testimony about his
confidential informants' statements as hearsay. The court denied
the motion, holding that this evidence was introduced to show "not
the truth of the matter but why the officers acted as they did."
Arabit testified that he had been informed "on several
occasions" that "Gonzalez was trafficking in large quantities of
heroin and cocaine." Arabit also testified that, based on
information that Gonzalez was going to move the heroin "real soon,"
he proceeded to "go in without a warrant, secure the people, and
explain to the Defendant and other[s] what was going on and then
get a warrant."
Despite repeated limiting instructions on the use of this
testimony,2 Gonzalez argues, the jury relied on this highly
prejudicial hearsay to convict him, as shown by a jury note.3
2
The jury was contemporaneously charged that the testimony was
"not offered for the truth of the matters but merely to explain the
circumstances of the entry of the officer into the building."
Again before the deliberations, the jury was instructed
specifically regarding "testimony by the case agent that he had
received information that Mr. Gonzalez trafficked in heroin." The
charged continued,
That evidence was admitted for the limited purpose of
showing the basis of the entry by police officers into
Mr. Gonzalez's home on July the 6th, 1990. It is not any
evidence that Mr. Gonzalez, in fact, trafficked in
heroin, and you may not consider it for any purpose other
than the limited purpose for which it was admitted.
3
During deliberations, the jury asked if they could "have
access to the testimony of Officer Arabit about the number of calls
he received indicating there was drug activity by Roberto
Gonzalez." The jury was properly instructed; we will not assume
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The statements here are not hearsay, because they were not
used to prove the truth of the matter asserted, that is, that
Gonzalez was trafficking in drugs. See Fed. R. Evid. 801(c). The
context makes clear that the testimony was elicited to establish
the reason for the warrantless entry into the Gonzalez residence
and the evidence was relevant for that purpose. Nothing more was
said about the informants until closing argument. Then the
prosecution properly limited its use of the disputed evidence to
the narrow purpose for which it was offered. This distinguishes
United States v. Hernandez, 750 F.2d 1256 (5th Cir. 1985), cited by
Gonzalez, in which the prosecution used the statement in closing to
argue the truth of the matter asserted. Testimony not used to
establish the truth of the assertion "simply does not fall under
the proscriptions against the use of hearsay." United States v.
Vizcarra-Porras, 889 F.2d 1435, 1439 (5th Cir. 1989), cert. denied,
495 U.S. 940 (1990).
III. Discovery of Gonzalez's Statements to Officers
Gonzalez finally asserts that the prosecution violated Rule of
Criminal Procedure 16 by not revealing all Gonzalez's statements to
officers. The Rule provides:
Upon request of a defendant the government
shall permit the defendant to inspect and copy
or photograph: . . . the substance of any
oral statement which the government intends to
offer in evidence at the trial made by the
defendant . . . in response to interrogation
by any person then known to the defendant to
be a government agent. . . .
that the jury considered this testimony for an improper purpose.
Moreover, "the mental processes of the jury in its deliberations
are not subject to judicial scrutiny." United States v. Vincent,
648 F.2d 1046, 1049 (5th Cir. Unit A June 1981).
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Fed. R. Crim. P. 16(a)(1)(A) (eff. until Dec. 1, 1991). We review
alleged errors in the administration of discovery rules for abuse
of discretion and will not reverse on the basis of such errors
unless a defendant establishes prejudice to his substantial rights.
United States v. Ellender, 947 F.2d 748, 756 (5th Cir. 1991). Such
errors that do not affect substantial rights must be disregarded.
United States v. Gordon, 812 F.2d 965, 971 (5th Cir.), cert.
denied, 482 U.S. 908 (1987), and cert. denied, 483 U.S. 1009
(1987).
Gonzalez complains that the statements provided in response to
his discovery motion were largely exculpatory, but those revealed
at trial were incriminating; thus he was surprised and prejudiced
at trial. Gonzalez specifically objects to not having discovery
about testimony that he wavered, by first denying knowledge of any
heroin, then stating, "if there's heroin here, it's not in the
house."
At a detention hearing several months before trial, Arabit
testified,
At first he told me that there wasn't any
heroin in the house. And after we spoke with
him for a little while longer, he said he
wasn't sure that there was, whether there was
heroin or not, but that, if there was heroin,
that it was outside. That it was not inside
the house.
This constitutes actual production of the statement, well in
advance of trial. Because the statement was known and available to
Defendant, he cannot show any prejudice which justifies reversal on
appeal.
Gonzalez also complains about lack of disclosure of his
statement to Arabit that Lozano had been working on a jeep in the
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yard and that Lozano "had the hood up so maybe there [was] heroin
in there." (The officers found heroin in the jeep bed.) The DEA
form that Gonzalez received before trial revealed Gonzalez's
statements as follows:
. . . GONZALEZ stated that his source of supply for
heroin was . . . LOZANO. . . . GONZALEZ stated
that he picked LOZANO up at the Greyhound bus
station on Thursday afternoon, and that LOZANO
advised GONZALEZ that LOZANO had approximately 8 to
8 and one-half ounces of pure Mexican black tar
heroin for sale. GONZALEZ also stated that LOZANO
showed GONZALEZ the heroin and GONZALEZ told LOZANO
not to bring the heroin into the residence---to
store it outside.
This disclosure did provide the substance of Gonzalez's oral
statement. "'The right to discovery of statements is not a
guarantee that the statement is complete in all respects.'" United
States v. Arcentales, 532 F.2d 1046, 1050 (5th Cir. 1976) (quoting
Castillo v. United States, 409 F.2d 762, 765 (5th Cir. 1969)).
Rule 16 does not require that the prosecution disclose all the
minutiae of its evidence. United States v. Elam, 678 F.2d 1234,
1253 (5th Cir. 1982).
Moreover, Gonzalez has not suggested any prejudice by the
Government's alleged failure to disclose these statements. As in
the Arcentales case, in which this Court found no significant
prejudice, the particulars of the statements became known during
the government's case-in-chief, before Gonzales had to decide
whether or not to take the stand. See Arcentales, 532 F.2d at 1050
(applying former Rule 16(a) as though it required the disclosure of
oral statements to officers now required under Rule 16(a)).
The disclosure provided by both the DEA form and the testimony
of Arabit at pre-trial hearings discharged the Government's duties
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under Rule 16. Given the lack of actual prejudice to Defendant,
the district court's decision to permit Arabit to testify about
Gonzalez's statements was well within its discretion.
CONCLUSION
Sufficient evidence supports the finding that exigent
circumstances justified the warrantless arrest; the motion to
suppress Gonzalez's statements was properly denied. The
informants' statements were not hearsay, because they were admitted
to show the circumstances of the entry into the Gonzalez residence.
Gonzalez has demonstrated no prejudicial error in the discovery
process. Accordingly, the judgment of the district court is in all
respects
AFFIRMED.
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