UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 92-8059
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SYLVIA SAGARIBAY and JAVIER ARMANDO RUEDA,
Defendants-Appellants.
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Appeals from the United States District Court
for the Western District of Texas
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(January 27, 1993)
Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.
DAVIS, Circuit Judge:
Sylvia Sagaribay (Sagaribay) was charged with conspiracy to
possess heroin with intent to distribute, in violation of 21 U.S.C.
§ 846, and possession of heroin with intent to distribute, in
violation of 21 U.S.C. § 841(a)(l). Javier Armando Rueda (Rueda),
her codefendant, was charged with the same two offenses, and with
being a convicted felon in possession of a firearm, in violation of
l8 U.S.C. § 922(g)(l). Both were convicted on all counts after a
non-jury trial. Both appeal their convictions. We affirm.
I.
On November 27, 1990, Detective Rodolfo Avila (Avila), of the
El Paso Police Department, obtained, from a local justice of the
peace, a search warrant for 7283 J. C. Cramer Street, Apt. 8l in El
Paso, Texas. The affidavit in support of the search warrant stated
that Avila had received information from a confidential informant
that Rueda, Sagaribay and two other individuals were in possession
of heroin in that apartment. The apartment had a new solid wood
door. So, before executing the warrant, Avila obtained a pass key
from the manager of the apartment complex.
The next day, at about 10:00 a.m., Avila and three other state
police officers arrived at the door of the apartment to execute the
search warrant. Avila knocked on the door and yelled "Police
officers with a search warrant." Simultaneously and without
waiting for a response, Avila unlocked the door with the pass key
and pushed it open. The door was difficult to open, because pieces
of furniture had been pushed up against it.
Once in the apartment, the officers saw Sagaribay, Rueda, and
another man sitting on the living room floor. Within an arm's
length of the individuals the officers observed heroin, money,
balloons, razor blades, scissors, and a dinner plate on the floor.
In the same room, the officers found additional balloons packaged
with heroin and a bag with over $6,000 cash in it. The officers
also found a small baggy of marijuana and a Smith and Wesson .357
magnum revolver in the master bedroom. The officers found a total
of 39.11 grams of heroin in the apartment.
Victor Maldonado (Maldonado), an agent of the Bureau of
Alcohol, Tobacco and Firearms, interviewed Rueda at the police
station about the gun seized by the police. Maldonado testified
2
that Rueda "told me he had bought [the handgun] a month prior at a
flea market." Maldonado also testified that he gave Miranda
warnings to Rueda, and that Rueda orally waived his rights before
making the statement.
II.
On appeal, Sagaribay and Rueda both argue that the fruits of
the search should have been suppressed because the officers failed
to comply with 18 U.S.C. § 3109, the "knock and announce" statute,
before entering the apartment. In addition, Rueda challenges the
admissibility of his confession on the ground that he did not
voluntarily and knowingly waive his right to remain silent before
giving the statement. Sagaribay challenges the sufficiency of the
evidence in support of her convictions. We consider these
arguments below.
A.
Appellants' main argument is that the search in this case
violated the Fourth Amendment protection "against unreasonable
searches and seizures" because it violated the knock and announce
requirements of § 3109. Section 3109 provides that an officer
executing a search warrant may break open a door only if "after
notice of his authority and purpose, he is refused admittance."
Texas has no statute similar to § 3109. The district court
determined that the state officers' conduct was proper under Texas
law. It also found that § 3109 did not apply to this case because
"these were state officers executing a Texas search warrant."
3
The Fourth Amendment prohibits only unreasonable searches.
Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447
(1979) ("Wolfish"). The test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical
application. Wolfish, 441 U.S. at 559. In each case it requires
a balancing of the need for the particular search against the
invasion of personal rights that the search entails. Wolfish, 441
U.S. at 559.
Undoubtedly, the Fourth Amendment and § 3109 serve overlapping
purposes. As the Supreme Court noted, Congress codified in § 3109
"a tradition embedded in Anglo-American law." Miller v. United
States, 357 U.S. 301, 307, 313 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958)
(applying District of Columbia law, which was "substantially
identical" to § 3109). Of this tradition, the Court said: "The
requirement of prior notice of authority and purpose before forcing
entry into a home is deeply rooted in our heritage and should not
be given grudging application." Miller, 357 U.S. at 313. Section
3109 serves several Fourth Amendment interests. Among those are
(1) protecting law enforcement officers and household occupants
from potential violence; (2) preventing unnecessary destruction of
private property; and (3) protecting people from unnecessary
intrusion into their private activities. United States v. Nolan,
718 F.2d 589, 596 (3rd Cir. 1983).
While the provisions overlap, the extent of that overlap is
not clear. In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10
L.Ed.2d 726 (1963), the Court had an opportunity to clarify the
4
relationship of § 3109 to the Fourth Amendment. A plurality
refrained from imposing an inflexible Fourth Amendment "knock and
announce" rule incorporating in all circumstances the particular
procedures delineated in § 3109. Instead, it held that exigent
circumstances justified the search. Ker, 374 U.S. at 38-41.
Four dissenters (Chief Justice Warren and Justices Brennan,
Douglas, and Goldberg) would have reached the issue and held that
"[t]he protections of individual freedom carried into the Fourth
Amendment . . . undoubtedly included this firmly established
requirement of an announcement by police officers of purpose and
authority before breaking into an individual's home." Ker, 374
U.S. at 49. In their view, "the Fourth Amendment is violated by an
unannounced police intrusion into a private home, with or without
an arrest warrant, except (1) where the persons within already know
of the officers' authority and purpose, or (2) where the officers
are justified in the belief that persons within are in imminent
peril of bodily harm, or (3) where those within, made aware of the
presence of someone outside . . . are then engaged in activity
which justifies the officers in the belief that an escape or the
destruction of evidence is being attempted." Ker, 374 U.S. at 47.
Similarly, in United States v. Mueller, 902 F.2d 336, 343-344
(5th Cir. l990), we declined to consider this issue because the
search in question was justified by exigent circumstances. In
dicta, we have said that searches in violation of § 3109's knock
and announce rule are unreasonable because "this statute is
designed to serve Fourth Amendment interests . . . ." United
5
States v. Cadena, 585 F.2d 1252, 1264 n. 28 (5th Cir. l978),
overruled on other grounds, United States v. Michelena-Orovio, 7l9
F.2d 738, 756-57 (5th Cir. 1983) (en banc).
Several circuits have found a "knock and announce" requirement
in the Constitution, though often in dicta and sometimes without
close attention to the plurality opinion in Ker.1 See United
States v. Francis, 646 F.2d 251, 258 (6th Cir.), cert. denied, 454
U.S. 1082, 102 S.Ct. 637, 70 L.Ed.2d 616 (1981) ("Though each case
by itself is less than compelling, their conclusion has been
unanimous: the Fourth Amendment forbids the unannounced, forcible
entry of a dwelling in the absence of exigent circumstances.")
(dicta).
In a case similar to ours, the Third Circuit closely analyzed
the relationship of § 3109 to the Fourth Amendment. United States
v. Nolan, 718 F.2d 589, 602 (3rd Cir. 1983). In Nolan, the Third
Circuit followed the Ker plurality, which it read as rejecting "the
proposition that the Fourth Amendment mandates a knock and announce
requirement with precise and narrowly defined exceptions, although
a failure by police to knock and announce could, depending on the
circumstances, violate the more general Fourth Amendment
reasonableness requirement for any arrest." Nolan, 718 F.2d at
601. Nolan involved a daytime execution of a valid search warrant
1
See, e.g., United States v. Baker, 638 F.2d 198, 202 n.7
(10th Cir. 1980) ("knock-announce" rule incorporated "to some
extent" in Fourth Amendment) (dicta); United States v. Valenzuela,
596 F.2d 824 (9th Cir.) (same) (dicta), cert. denied, 441 U.S. 965,
99 S.Ct. 2415, 60 L.Ed.2d 1071 (l979); United States v. Andrus, 775
F.2d 825, 844 (7th Cir. 1985). Rivera v. United States, 928 F.2d
592, 606 (2d Cir. 1991) (merger of § 3109 and Fourth Amendment).
6
in which a motel manager opened the door with a passkey and the
officers announced their identity as they entered. The Third
Circuit concluded that these circumstances did not "give rise to
the kind of unreasonable seizure proscribed by the Fourth
Amendment." Nolan, 718 F.2d at 602. See also United States v.
Daoust, 728 F. Supp. 41, 49, 50 (D. Me. 1989), aff'd, 916 F.2d 757
(1st Cir. 1990) ("The constitutionality of a forcible entry does
not depend upon ritual adherence to the statutory 'knock and
announce' procedures of section 3109.").
Like the Third Circuit, we decline to hold that the Fourth
Amendment inflexibly incorporates the requirements of § 3109 into
its reasonableness requirement. Considering the totality of the
circumstances in this case, including the interests protected by §
3109, this was not an unreasonable search under the Fourth
Amendment. By announcing their identity and purpose as they
entered the door, the officers sought to prevent the possibility of
unnecessary violence. By using a pass key, the officers prevented
unnecessary destruction of private property. By conducting the
search in the daytime, after obtaining a valid search warrant, the
officers minimized the risk that they would unnecessarily intrude
into the defendants' private activities.
The officers also reasonably considered the possibility that
material evidence would be destroyed. The district court found
that the officers had probable cause to believe that heroin was
present in the apartment. During the three hours before executing
the warrant, the officers saw several people, including a known
7
addict, enter and leave the apartment. We have considered
circumstances similar to these to be exigent circumstances that
would excuse federal officers from compliance with § 3109. United
States v. Carter, 566 F.2d 1265, 1269 (5th Cir.), cert. denied, 436
U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978). ("[H]eroin is a
readily disposable item."). We need not decide whether these
circumstances rose to the same level; the search was reasonable
even if we consider them to be only mild exigencies. This search
did not violate rights reserved to the defendants under the Fourth
Amendment.
B.
Sagaribay and Rueda suggest that § 3109 applies of its own
force to state police officers executing state authorized searches
and seizures if the evidence they seize is used in a federal
prosecution. In Preston v. United States, 376 U.S. 364, 366, 84
S.Ct. 881, 883, 11 L.Ed.2d 777, 780 (l964) ("Preston"), the Supreme
Court held that evidence obtained by state officers is only
admissible against a defendant in a federal trial if the search and
seizure were reasonable under the Fourth Amendment. The Eighth
Circuit held that Preston does not require the exclusion of
evidence seized by state officers and offered in a federal
prosecution, as long as the seizure was reasonable under the Fourth
Amendment. United States v. Moore, 956 F.2d 843, 845-47, and 847
8
n. 4 (8th Cir. l992) (citing cases in agreement). We agree with
this conclusion and therefore reject appellants' argument.2
C.
Rueda next argues that the district court erroneously admitted
Maldonado's testimony that Rueda "told me he had bought [the .357
magnum revolver] a month prior [to Rueda's arrest] at a flea
market." Before trial, Rueda objected to admission of the
statement, contending first, that he had not made the statement and
second, that, if he had made the statement, he had done so during
a custodial interrogation without having knowingly and voluntarily
waived his right to remain silent. On appeal, Rueda argues that
the district court refused to consider his constitutional argument.
At the suppression hearing, Maldonado testified that he read
to Rueda the contents of a statement of rights card. Agent
Maldonado further testified that Rueda orally waived those rights.
Rueda testified that he did not make the statement and was not
given any Miranda warnings. He also testified that he was "aware
then of [his] right not to say anything."
In its order denying Rueda's motion to suppress, the district
court found that Rueda "made it clear that he fully understood his
right to remain silent." At trial, when objection was made to
admission of the statement, the district court clarified the
difficulty in Rueda's position--if the district court disbelieved
2
In passing, Rueda suggests that the search was unlawful under
Texas law. This argument has no merit. See Ellerbee v. State, 631
S.W.2d 480, 484 (Tex. Crim. App. 1981); Tex Code Crim. Proc. Ann.
Art. l8.06(b)(Vernon 1991).
9
Rueda's testimony that he made no statement to Maldonado, it would
have no reason to believe Rueda's fallback position that Maldonado
did not advise him of his right to remain silent.
THE COURT: "[T]he only evidence in this
trial today so far about this transaction is
from this witness who says, 'I gave him
Miranda warnings.'"
MR. ROBERT: ". . . I would like the Court
to take judicial notice of the testimony of
Mr. Rueda in the suppression hearing."
THE COURT: "If I take judicial notice of
that, do I believe part of it and disbelieve
the rest; is that what you're saying?"
The district court had to choose whether to believe Rueda's account
of the events at the police station or Maldonado's account of those
events. The court apparently concluded that the separate accounts
were so inconsistent that it could not believe half of one story
and half of the other story. The district court believed
Maldonado's account, not Rueda's.
Despite this finding, Rueda argues that the district court
perceived Rueda's arguments as contradictory and therefore ignored
his constitutional argument. He directs our attention to the
district court's order denying Rueda's motion to suppress, where
the court said that Rueda was "hardly in a position to challenge
the admissibility of the non-existent statement on constitutional
grounds." The district court had already found that Rueda had
voluntarily and knowingly waived his right to remain silent. So we
regard the district court's subsequent statement as an
afterthought, not as a refusal to consider Rueda's constitutional
10
argument. The district court did not err in admitting the
statement.
D.
Sagaribay challenges the sufficiency of the evidence in
support of her convictions. In reviewing this challenge, our task
is to determine whether any reasonable finder of fact could have
found Sagaribay guilty on the evidence presented. In considering
the permissible inferences we must view the evidence in a light
most favorable to the verdict. United States v. Bethley, 973 F.2d
396, 399 (5th Cir. l992).
The offense of possession of heroin with intent to distribute
required proof beyond a reasonable doubt that (l) a conspiracy
existed, (2) Sagaribay knew of the conspiracy, and (3) she
voluntarily joined it. United States v. Mollier, 853 F.2d 1169,
1172 (5th Cir. l988). The substantive offense of possession with
intent to distribute required proof beyond a reasonable doubt that
Sagaribay (l) knowingly (2) possessed heroin (3) with intent to
distribute. United States v. Molinar-Apodaca, 889 F.2d 1417, 1423
(5th Cir. 1989).
The evidence showed that apartment 81 was registered in
Sagaribay's name. Several people entered and left Sagaribay's
residence during the three hours before her arrest. When the
officers entered the apartment, Sagaribay was sitting on the floor
immediately next to a plate with heroin, balloons, razor blades,
scissors, and money on it. Detective Avila testified that heroin
is normally packaged in balloons of the type found in the
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apartment. The search of the living room further revealed a
grocery bag that contained over $6,000 cash and more balloons
packaged with heroin.
The above evidence adequately supports Sagaribay's convictions
for conspiracy to possess heroin with intent to distribute and
possession of heroin with intent to distribute.
III.
For the reasons stated above, we affirm the district court's
judgment.
AFFIRMED.
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