United States v. Samboy

United States Court of Appeals
For the First Circuit
_________________________________

No. 04-1615

UNITED STATES OF AMERICA,

Appellee,

v.

ALSENIO SAMBOY,

Defendant, Appellant.

________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]
_________________________________

Before

Selya and Lynch, Circuit Judges,
Restani, Judge.*

_____________________

December 29, 2005
_____________________

Bruce Green for appellant.
Virginia M. Vander Jagt with whom Michael J. Sullivan,
United States Attorney, was on brief, for appellee.

*
Honorable Jane A. Restani, Chief Judge of the United
States Court of International Trade, sitting by designation.
 RESTANI, Judge. Appellant, Alsenio Samboy, was convicted

of conspiracy to distribute at least 50 grams of cocaine base and

possession with intent to distribute and distribution of at least

50 grams of cocaine base. See 21 U.S.C. §§ 841(a)(1), 846. Samboy

moved to exclude evidence resulting from a warrantless search of

his dwelling, and a warrantless search of the apartment below his.

The district court denied Samboy’s motion, and following a jury

finding of guilt sentenced him to two concurrent terms of 175

months in prison and five years of supervised release. On appeal,

Samboy argues that the district court erred in denying his motion

to suppress. He also contends that his sentencing was improper

under United States v. Booker, 125 S. Ct. 738 (2005). Because

exigent circumstances justified the warrantless entry into Samboy’s

home, and because the record demonstrates no plain error in his

sentence, we affirm the judgment of the court below.

BACKGROUND

On September 14, 2000, Jose Miguel Padin was arrested for

conspiring to distribute and distributing cocaine base (“crack”).

Padin agreed to cooperate with authorities following his arrest,

and identified his supplier of cocaine as the Appellant, Alsenio

Samboy. Padin stated that Samboy stored drugs in his apartment at

82 Pleasant Street, Worcester, Massachusetts. Padin also mentioned

to the police that the apartment below Samboy’s residence was being

-2-
used as part of Samboy’s drug operation.1

That day, the government proceeded to use this

information to set up a “controlled buy.” Padin was instructed to

contact Samboy via telephone and request 125 grams of crack.

Samboy agreed to the sale over the course of several telephone

calls. Four of the calls merit particular attention. During the

first call, placed at 2:30 P.M., Padin informed Samboy that he had

an interested buyer, but the call ended without any agreement by

Samboy to actually furnish Padin with narcotics. Samboy stated

that he was “afraid of doing it,” and that he would “let you

[Padin] know later on when you call me back if we can get that or

not.” At about 4:30 P.M., Padin called Samboy again and confirmed

that his buyer was ready. Samboy stated he would “send for that”

and requested that Padin call back again in fifteen or twenty

minutes. Padin called again at 5:25 P.M., stating that he was

about to leave for an auto-parts store where he would wait for

delivery. Samboy refused to send his courier to meet Padin until

he was certain Padin had arrived, and instructed Padin to call once

he arrived at his destination. Finally, at 5:32 P.M., Padin called

Samboy after arriving at the arranged location and received

confirmation that Samboy’s courier, Claudin Mar Dellossantos

(a.k.a. “Marcos”), was leaving.

1
At the time of his arrest, Padin erroneously stated that
Samboy lived on the third floor and stored drugs on the second
floor.

-3-
 During the course of these calls, police officers

positioned themselves around Samboy’s apartment complex. Prior to

the 5:32 call, officers witnessed Dellossantos leave 82 Pleasant

Street, drive away, and return a few minutes later. After the 5:32

call, officers again observed Dellossantos leave Samboy’s building.

They followed him to his meeting place with Padin, arrested him,

and recovered 125 grams of crack and a set of keys to Samboy’s

apartment. After Dellossantos’s arrest, several agents proceeded

to Samboy’s apartment on the fourth floor, while one agent went to

obtain a search warrant.

The police arrived at Samboy’s apartment at approximately

6:00 that evening to arrest him. Agents knocked and announced

themselves when they arrived. When they heard no response, they

used the keys found on Dellossantos to open Samboy’s door and enter

the apartment. When they entered, the police found Samboy on a

sofa with his cellular phone. They immediately put him under

arrest and conducted a search of Samboy and a “protective sweep” of

the apartment incident to that arrest. They found $440 in cash and

13.4 grams of cocaine in a bulge in Samboy’s pants pockets. Only

after arresting Samboy and securing the apartment did the officers

obtain a warrant to complete the search of the third and fourth

floors.

Officers also gave Samboy a printed Miranda warning,

written in Spanish, Samboy’s native language, and informed him in

-4-
Spanish that he was under no obligation to sign the form, and that

he could make such alternations to the form as he saw fit. Samboy

signed the form, which gave the officers written permission to

conduct a full search of Samboy’s residence. Despite this, the

police waited until a warrant arrived at approximately 8:07 P.M. to

conduct a full search.

Between the time of Samboy’s arrest and the arrival of

the search warrant, the police conducted an investigation of the

common areas of the apartment building, during which they found a

key to the apartment on the third floor of the building. The

officers knocked on the door, announced themselves, and then

entered with the key after they received no response. Crack was

immediately found lying on a table, but the police refrained from

completing their search until the search warrants arrived.

Afterwards, the police conducted a full investigation of the

apartments on the third and fourth floors. The police found $3,600

in cash in the fourth-floor apartment. The police also discovered

a variety of drugs and drug paraphernalia in the third-floor

apartment, including 50.9 grams of crack, 633.9 grams of powder

cocaine, 158.8 grams of heroin, scales, cutting agents, and a pan

with crack residue.

On September 24, 2001, Samboy filed a motion to suppress

the evidence collected as a result of the warrantless search of his

apartment. The motion was denied without prejudice on January 29,

-5-
2002. On February 13, 2003, Samboy filed a motion to reconsider

the court’s 2002 ruling. This motion requested that the court

suppress evidence related to the 13.4 grams of cocaine and $440

found on Samboy’s person, any evidence obtained from the search of

the third and fourth floor apartments, and statements of admission

by him resulting from his arrest. The motion was denied on August

18, 2003, and evidence found in the third and fourth floor

apartments was presented to the jury.

DISCUSSION

I.

The district court’s conclusions of fact are reviewed for

clear error, but we afford plenary review to the district court’s

ultimate conclusion regarding exigent circumstances. United States

v. Curzi, 867 F.2d 36, 42 (1st Cir. 1989).

It is a well-established principle of Fourth Amendment

law that warrantless searches inside a home are presumptively

unreasonable. See Payton v. New York, 445 U.S. 573, 586 (1980).

Even with probable cause to believe that evidence of a crime will

be found within a private dwelling, the constitutional protections

afforded to an individual’s privacy interest in his own home

outweighs the government’s interest in crime prevention. Id. at

588–89.

Nevertheless, a warrantless entry into a person’s

dwelling may be permitted if “exigent circumstances” arise. The

-6-
government bears the burden of proving exigent circumstances.

United States v. Baldacchino, 762 F.2d 170, 176 (1st Cir. 1985).

To show exigent circumstances, the police must reasonably believe

that “there is such a compelling necessity for immediate action as

will not brook the delay of obtaining a warrant.” Fletcher v. Town

of Clinton, 196 F.3d 41, 49 (1st Cir. 1999) (quoting United States

v. Almonte, 952 F.2d 20, 22 (1st Cir. 1991)). Proof of exigent

circumstances “should be supported by particularized, case-specific

facts, not simply generalized suppositions about the behavior of a

particular class of criminal suspects.” United States v. Hidalgo,

747 F. Supp. 818, 828 (D. Mass. 1990). We have recognized a number

of situations giving rise to exigent circumstances, including when

delay would risk the destruction of evidence. See United States v.

Wihbey, 75 F.3d 761, 768 (1st Cir. 1996); see also United States v.

Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir. 1988) (finding

exigent circumstances “when there is an urgent need to prevent

evidence from being lost or destroyed,” particularly in drug cases

where “‘narcotics can be easily and quickly destroyed while a

search is progressing’”) (quoting United States v. Socey, 846 F.2d

1439, 1444–45 (D.C. Cir. 1988)). Officers are justified in relying

on this exception only if they show an objectively reasonable basis

for concluding that the loss or destruction of evidence is likely

to occur. Wihbey, 75 F.3d at 768.

At the time the police entered Samboy’s apartment, the

-7-
police knew that Samboy was present, that he had recently sent

Dellossantos to deliver drugs, and that Dellossantos had been

arrested and therefore had not returned or contacted Samboy. The

district court thus arrived at the conclusion that, when the police

received no response after knocking and announcing their presence,

there arose a “reasonable belief that Samboy was alerted to their

presence and might try to destroy evidence in the apartment.

Consequently, there were sufficient exigent circumstances to

justify entry into the fourth floor apartment without obtaining a

warrant . . . .”

We see no clear error in the district court’s factual

findings. As a matter of law, we agree with the district court

that these facts gave rise to a reasonable belief that Samboy

probably would have realized the police were closing in and begun

disposing of evidence had the police waited to obtain a search

warrant at the time of Dellossantos’s arrest. Courts have found

exigent circumstances in similar cases where a courier’s failure

promptly to return to a suspected dealer served as a likely

indication of his arrest. See, e.g., Sangineto-Miranda, 859 F.2d

at 1513 (absence of courier while dealer was reasonably believed to

remain in suspect apartment led to reasonable belief that the

courier’s “continued absence . . . would alert [the dealer] that

the police were on [his] trail, thereby prompting him to destroy

narcotics”); United States v. Moore, 790 F.2d 13, 16 (1st Cir.

-8-
1986) (failure of courier “to return . . . promptly . . . could

create a substantial risk that appellant would flee or destroy

evidence”).

A. Delay In Seeking A Warrant

Samboy argues that there could not have been exigent

circumstances because the police improperly waited to request a

search warrant after obtaining probable cause by corroborating

Padin’s statements with telephone calls to Samboy. Appellant cites

United States v. Beltran, 917 F.2d 641 (1st Cir. 1990), for the

proposition that no exigent circumstances exist when “the police

fully expect that they may have to enter a home to make an arrest

in the near future, and . . . they have more than enough time and

knowledge to secure a warrant.” Id. at 643. In Beltran, police

acted on information provided by a confidential informant who

indicated that Beltran had sold him cocaine in the past. Id. at

642. The information was used to arrange two closely monitored

cocaine sales on two consecutive days. Id. After the first sale

of two ounces of cocaine was completed, investigators instructed

their informant to arrange for a second purchase of one pound of

cocaine the following day. Id. At 4:20 P.M. on the second day,

Beltran instructed the informant to come to her apartment at 7:30

that evening. Id. Instead of seeking a warrant, the police

arrested Beltran after their informant entered Beltran’s apartment

and returned with confirmation that he had seen the cocaine. Id.

-9-
The court reasoned that no exigent circumstances existed because

“in this case, three or four hours before the police arrested Ms.

Beltran, they knew that they were likely to do so, they had an

adequate basis for obtaining a warrant, and they could have

obtained one.” Id. at 643.

Beltran raises two distinct questions regarding the

police’s conduct in this case. First, at what time did the police

finally have probable cause to search Samboy’s apartment? Second,

were the police justified in waiting as long as they did in

obtaining a warrant after obtaining probable cause? We address

each issue in turn.

Probable cause cannot be based on conclusory statements,

or mere “suspicion, rumor, or strong reason to suspect

[wrongdoing].” United States v. Vigeant, 176 F.3d 565, 569 (1st

Cir. 1999) (quoting United States v. Han, 74 F.3d 537, 541 (4th

Cir. 1996) (internal quotations omitted, alterations in original)).

Uncorroborated tips are often insufficient to provide a reasonable

basis to enter a person’s home, and the police are often justified

in waiting for corroboration before making an application to a

magistrate for a warrant. See United States v. Capozzi, 347 F.3d

327, 333 (1st Cir. 2003) (reliance on an anonymous source requires

police to “attempt to corroborate the informant’s story under the

totality of the circumstances”). The officers were reasonable in

determining that Padin’s statements alone might not be sufficient

-10-
to support probable cause. Thus, the police acted reasonably in

deciding to seek additional corroboration for Padin’s story before

seeking a warrant.

The question then becomes which of the telephone

conversations between Padin and Samboy, if any, established

probable cause to arrest Samboy. Transcripts of the 2:30 telephone

call provide some corroboration, but ended without any agreement by

Samboy to actually furnish Padin with narcotics. Instead, Samboy

stated that he was afraid of “doing it,” that he would see “if we

can get that or not,” and that Padin should wait until his buyer

called to get back in touch with him. During the 4:30 call, Samboy

asked for another twenty minutes to obtain “it” and requested that

Padin call back again. When Padin called at 5:25, Samboy still

refused to dispatch a courier to Padin until he arrived at the

prearranged location. It was not until 5:32 that the police heard

Samboy say that Dellossantos had been sent to complete the

transaction.

It may be that the police had probable cause to seek a

warrant for Samboy’s arrest and to search his apartment at 5:32.

It is also likely that probable cause existed after the 5:25 call,

which finalized preparations for the transaction. An argument may

be made that the police had probable cause at 4:30, when Samboy was

alerted to Padin’s desire to complete the transaction and Samboy

indicated that he would get the product ready. Samboy argues,

-11-
however, that the government should have sought a warrant after

Padin’s 2:30 P.M. call with Samboy. The police could reasonably

conclude it was doubtful that the 2:30 call established probable

cause. At that time, Samboy had not agreed to the transaction, and

had indicated that he didn’t have the drugs with him. See United

States v. Moore, 790 F.2d at 15 (“Probable cause exists when ‘given

all the circumstances, there is a fair probability that contraband

or evidence will be found in the place described.’”) (quoting

United States v. White, 766 F.2d 22, 25 (1st Cir. 1985)).

Assuming that the police had probable cause to seek a

warrant as early as 4:30, this led to about an hour-and-forty-five

minute delay between the time probable cause arose and the time

Samboy was arrested.2 There is no legal rule requiring the police

to seek a warrant as soon as probable cause likely exists to seek

a warrant. Beltran, 917 F.2d at 643. Nor does the fact that in

setting up a controlled buy the police might have foreseen the

eventual entry into Samboy’s apartment, standing alone, prevent

application of the exigent circumstances doctrine. See United

States v. Cresta, 825 F.2d 538, 553 (1st Cir. 1987)

(“Unforeseeability has never been recognized as an element of the

exigent circumstances exception . . . .”). Instead, we have

refused to find exigent circumstances where the “circumstances

2
In this case, it took about two hours (approximately from
6:00 to 8:07 P.M.) to obtain a search warrant after arresting
Samboy.

-12-
[were] created by government officials who unreasonably and

deliberately delay[ed] or avoid[ed] obtaining the warrant.” United

States v. Rengifo, 858 F.2d 800, 804 (1st Cir. 1988). Three facts

indicate that a deliberate and unreasonable delay did not occur in

this case.

First, unlike Beltran, the police had observed no prior

consummated sale between Padin and Samboy. Second, when first

attempting to arrange such a sale, Samboy expressed doubt as to

whether the sale would occur. These facts indicate that the police

were probably less certain of the veracity of their informant than

the police in Beltran. Third, this case involves the arrest of a

courier, Dellossantos, shortly before the arrest of a dealer,

Samboy. Since Samboy had hesitated to send Dellossantos until the

last minute, Samboy’s actions gave the police a limited amount of

time in which to act. Under these circumstances, the record

reasonably supports a conclusion that the police reasonably delayed

not from a desire to avoid seeking a warrant, but because the

circumstances of the investigation demanded first caution and then

an immediate response.

B. Manufactured Exigency

Samboy made no mention of a manufactured exigency in the

court below. To raise an argument on appeal, a party must “‘spell

out its arguments squarely and distinctly’ . . . or else forever

hold its peace.” Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st

-13-
Cir. 1988) (quoting Paterson-Leitch Co., Inc. v. Mass. Mun.

Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988)). Rather,

“[t]o preserve a point for appeal, some developed argumentation

must be put forward in the nisi prius court – and a veiled

reference to a legal theory is not enough to satisfy this

requirement.” B & T Masonry Const. Co., Inc. v. Pub. Serv. Mut.

Ins. Co., 382 F.3d 36, 40 (1st Cir. 2004). Samboy did object to

the warrantless search in the court below, arguing that the police

“could have secured an anticipatory search warrant,” but did not

suggest at any point that the police deliberately created an

exigent circumstance requiring immediate intervention. In fact,

Samboy maintained just the opposite, arguing that no exigent

circumstances arose at all. Such an argument does not raise the

question of manufactured exigency for review on appeal. United

States v. Martins, 413 F.3d 139, 149 (1st Cir. 2005). In any case,

as discussed in the previous section, there is no evidence that the

police were simply manufacturing the exigency.

II.

Samboy briefly contends on appeal that the search of the

third-floor apartment independently violated the Fourth Amendment.

To raise such an argument,

a defendant must demonstrate that he
personally has an expectation of privacy in
the place searched, and that his expectation
is reasonable; i.e., one that has “a source
outside of the Fourth Amendment, either by
reference to concepts of real or personal

-14-
 property law or to understandings that are
recognized and permitted by society.”

Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting Rakas v.

Illinois, 439 U.S. 128, 143 n.12 (1978)). An expectation of

privacy is the “threshold standing requirement that a defendant

must establish before a court can proceed with any Fourth Amendment

analysis.” United States v. Lewis, 40 F.3d 1325, 1333 (1st Cir.

1994). We find that Samboy failed to argue his subjective privacy

interest in the third-floor apartment in the court below.

Moreover, Samboy has not pointed to any evidence to show that his

interest in the apartment was one society would recognize as

reasonable.

Prior to trial, Samboy mentioned neither his subjective

nor objective interest in the third-floor apartment. Samboy’s

original Motion to Suppress and his Motion for Reconsideration

state only that, subsequent to entering Samboy’s fourth-floor

residence and arresting him, the officers proceeded to search areas

outside Samboy’s immediate control, including “a search of all the

rooms, the hallways, and the 3rd floor apartment.” This argument

simply assumes the prerequisite question of whether Samboy had a

reasonable privacy interest in the third-floor apartment. As we

held in Lewis, a failure to present evidence with respect to such

an expectation prevents a defendant from making a claim for

suppression under the Fourth Amendment. 40 F.3d at 1333.

Samboy argues in his appellate brief that he “manifested

-15-
a subjective expectation of privacy in the place searched,” but has

failed even to allege that his asserted interest would be viewed by

society as reasonable. This is a fatal flaw, since a subjective

belief in one’s privacy is meaningless unless one can show that

society would consider the belief reasonable. Lewis, 40 F.3d at

1333; see also Carter, 525 U.S. at 91 (upholding use of evidence

obtained from apartment where temporary guests present for the sole

purpose of distributing drugs had no recognized expectation of

privacy).

Indeed, Samboy’s strategy throughout the proceedings was

to distance himself from any possible interest in the third-floor

apartment. Though he may have argued that he lacked an interest at

trial while arguing that he did in fact have a recognized interest

in the apartment in his motion to suppress, he did not do so.

See Lewis, 40 F.3d at 1333 (evidence used to establish “standing”

to raise Fourth Amendment claim cannot be used as direct evidence

at trial to establish guilt or innocence). Samboy did not suggest

at any time that he rented or owned the apartment in question, nor

did he suggest that he had a right to exclude others or even that

he maintained a regular presence there. Evidence that somebody had

locked the door and hidden the key is insufficient to establish a

legitimate privacy interest. See United States v. Lopez, 380 F.3d

538, 545 (1st Cir. 2004) (“[E]fforts to restrict access to an area

do not generate a reasonable expectation of privacy where none

-16-
would otherwise exist.” quoting New York v. Class, 475 U.S. 106,

114 (1986)).

III.

Samboy objects to his sentencing under the mandatory

United States Sentencing Guidelines (“Guidelines”). At the time of

his sentencing, the Supreme Court’s opinion in Booker had not yet

been issued, although oral arguments in Blakely v. Washington, 542

U.S. 296 (2004), had taken place. Samboy concedes that he failed

to object to the application of the mandatory Guidelines at his

sentencing. Thus, his objection is forfeited and we review for

plain error. United States v. Antonakopoulos, 399 F.3d 68, 76 (1st

Cir. 2005).

To succeed in establishing plain error, Samboy must

demonstrate four elements. First, he must show that there was

error. See United States v. Olano, 507 U.S. 725, 732 (1993).

Second, he must show that the error was plain. Id. Third, he must

show that the error affected substantial rights. Id. Fourth, he

must show that the error seriously affected the fairness,

integrity, or public reputation of judicial proceedings. Id. The

first two prongs of the Olano test are satisfied because Samboy’s

sentence was imposed under a mandatory Guidelines system. See

Antonakopoulos, 399 F.3d at 77 (1st Cir. 2005). As to the third

and fourth prongs, “ordinarily the defendant must point to

circumstances creating a reasonable probability that the district

-17-
court would impose a different sentence more favorable to the

defendant under the new ‘advisory Guidelines’ Booker regime.” Id.

at 75. Samboy fails to make such a showing.

To show a reasonable probability that a different

sentence would have been imposed in a non-mandatory guidelines

system, Samboy must provide, at a bare minimum, a “reasonable

indication that the district judge might well have reached a

different result under advisory guidelines.” United States v.

Heldeman, 402 F.3d 220, 224 (1st Cir. 2005). Samboy has not shown

that he would have received a lighter sentence under the advisory

Guidelines. To the contrary, Judge Gorton emphasized that he was

inclined to impose a higher sentence, and that Samboy “would be

going to jail for a longer period of time but for some of the

extenuating arguments by [defense counsel].” He declared that

Samboy committed a “horrendous” crime and that it was a “close

call” not to add two sentence levels for leadership in the

conspiracy. There is no indication that under an advisory system

Samboy’s sentence would have been any lower.

Samboy asks this court to abandon its interpretation of

the third element of plain-error review in the context of Booker

challenges in favor of a standard of presumed prejudice. We have

already rejected a per-se rule that would presume prejudice or

miscarriage of justice under Booker. See Antonakopoulos 399 F.3d

at 79. We also decline to alter the burdens of proof established

-18-
for plain-error review by creating a rebuttable presumption of

prejudice in a case where the district judge explicitly stated that

he considered only a higher, not lower, sentence. See Booker, 125

S. Ct. at 745 (“[W]e expect reviewing courts to apply ordinary

prudential doctrines, [including] whether the issue was raised

below and whether it fails the ‘plain-error’ test.”).

Samboy also fails to raise a viable argument on the

fourth prong of plain-error review. We have held that “one cannot

possibly say that all sentences imposed before Booker threatened

the fairness, integrity, or public reputation of judicial

proceedings, or undermined our confidence in the outcome of the

sentence, simply because the Guidelines were mandatory.”

Antonakopoulos, 399 F.3d at 80 (emphasis removed).

IV.

Because the police’s warrantless search of Samboy’s

apartment was precipitated by exigent circumstances and Samboy has

failed to demonstrate a reasonable expectation of privacy in the

third-floor apartment, we find the police’s seizures proper under

the Fourth Amendment. Moreover, Samboy has failed to demonstrate

that use of mandatory Guidelines resulted in plain error at his

sentencing.

We therefore Affirm the judgment of the district court.

-19-