United States v. Lopez

United States Court of Appeals
For the First Circuit

No. 03-1767

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS LOPEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.

Robert O. Berger for appellant.
Carlos Lopez on brief pro se.
Mark E. Howard, Assistant U.S. Attorney, with whom Thomas P.
Colantuono, United States Attorney, was on brief for appellee.

August 19, 2004
 COFFIN, Senior Circuit Judge. A jury convicted Carlos Lopez

on eight criminal counts, including conspiracy to distribute

cocaine base, distribution of cocaine base, and three firearms

violations. On appeal, appellant raises two primary issues.

First, he contends that key physical evidence, namely, a quantity

of drugs and a loaded .40 caliber handgun, was obtained through an

unlawful search of his vehicle. Second, appellant contests the

admissibility of certain statements he made to law enforcement

officers. He argues that the statements were the product of

custodial interrogation that occurred after he invoked his right to

counsel. Appellant also raises a series of issues relating to

alleged prosecutorial vouching, the reliability of the drug dog

used in the vehicle search, and the district court's denial of his

motion for judgment of acquittal. Finding no infirmity in the

district court's decision to admit both the physical evidence and

appellant's statements, and detecting no basis for reversal or

remand on any of appellant's other claims, we affirm the conviction

on all counts.1

1
Counsel for appellant submitted two letters pursuant to Fed.
R. App. P. 28(j) in which he asserted that, under Blakely v.
Washington, 124 S.Ct. 2531 (2004), this court should strike down
the federal sentencing guidelines and remand this case. Blakely
held that a sentence that was enhanced on the basis of factors
found by the judge, rather than the jury, violated the defendant's
constitutional right to trial by jury. The appellant in this case,
however, received the minimum statutory sentence, and counsel has
offered no explanation as to why Blakely would apply. The argument
is thus waived. See Mulvihill v. Top-Flite Golf Co., 335 F.3d 15,
28 (1st Cir. 2003) (issue deemed forfeited by failure to marshal
pertinent facts or engage in reasoned analysis).

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 I. Factual Background

Acting on a tip from a confidential informant, the Drug

Enforcement Administration (DEA) and local law enforcement officers

in New Hampshire began surveillance of a series of arranged drug

transactions between appellant and Terri Tremblay, an unwitting

friend of the informant. The first such arranged buy occurred on

May 11, 2001. In what would become a pattern for subsequent

transactions, Tremblay met the confidential informant at a Wendy's

restaurant in Portsmouth, where the informant gave Tremblay cash -

serialized funds provided by the DEA - to purchase crack cocaine.

Tremblay and the informant then met Lopez in the parking lot of the

Beechstone Condominium complex, across the street from the

Wendy's.2 Tremblay entered appellant's car and purchased crack

cocaine with the serialized money. She then gave the drugs to the

informant. After two such transactions in which the informant

served as an intermediary between Tremblay and undercover task

force officer John Perrachi, Perrachi began to arrange deals

directly with Tremblay. Lopez and Tremblay were arrested on July

25, 2001, during the fifth coordinated transaction.

On the night of the arrest, law enforcement officers observed

Tremblay drive into the Beechstone parking lot, park her car next

to a Dodge minivan, exit her vehicle, and enter the minivan.

2
Out of the five arranged deals, four occurred in the parking
lot of the Beechstone apartment complex; the fifth occurred in a
manner similar to the other four, but on a nearby side street.

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Officers then converged on the minivan and arrested both appellant,

who was in the driver's seat, and Tremblay, who was in the

passenger seat. Tremblay and appellant were separated, and each

told a different version of events to officers present at the

scene. Appellant denied any knowledge regarding drugs, saying only

that he met Tremblay in the parking lot because he hoped to have

sex with her. Tremblay, however, wanted to cooperate and,

according to law enforcement reports, explained that Lopez had

brought with him a larger quantity of crack than she had been

planning to purchase.

Because children lived in the Beechstone apartment complex,

officers were particularly concerned with seizing the drugs

believed to still be in the vicinity. A preliminary search of the

vehicle at the scene of the arrest turned up $280 of the serialized

funds (the remaining $20 was found on Tremblay's person), but,

despite a drug-sniffing dog alerting three times to the passenger

front seat, no drugs. A search of the surrounding wooded area and

parking lot failed to yield any results. Due to poor lighting and

the presence of a crowd of onlookers that had gathered around the

scene, officers transported the van to the Portsmouth Police

Department. Tremblay and Lopez, still separated, were also taken

to the station.

At the station, after answering some initial questions about

the registration of the van, appellant indicated he might be

interested in cooperating and requested an attorney. DEA Special

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Agents Steven Story and Norman Houle ceased questioning appellant

and returned to the van to continue the search. Appellant was left

in the interview room under the supervision of Officer Brandon

Drysdale.

While searching the van, Story located a wire leading to a

locked compartment under the front passenger seat. Suspecting that

the compartment contained contraband, Houle went to fetch a camera

to document the compartment and its contents. En route, he briefly

entered the interview room, told Lopez that he and Story had found

"the stuff" and that "the deal was off." Houle left the interview

room immediately after making his remark. The compartment was

later found to contain sixty-three grams of crack cocaine, a loaded

semi-automatic .40 caliber handgun with an obliterated serial

number, and a package of photographs bearing Lopez' name.

At trial, Drysdale testified that, upon hearing Houle's

remark, Lopez became "very sad," remarking repeatedly that he was

"fucked" and that "his life was over." Lopez then asked Drysdale

what would happen to a person caught possessing both a gun and

drugs. Drysdale replied that it was "a bad thing."

Prior to trial, appellant submitted a motion to suppress the

guns and drugs found in the compartment, as well as his statements

to Drysdale. Appellant argued that the search of the vehicle was

unreasonable, justified neither as a search incident to arrest nor

under the automobile exception to the warrant requirement. He

protested that his statements were made during custodial

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interrogation and without his having waived his Miranda rights and

were thus inadmissible. After a hearing, the district court

summarily denied the motion.

We review the district court's findings of fact with respect

to a suppression motion for clear error. United States v. Infante-

Ruiz, 13 F.3d 498, 501 (1st Cir. 1994). As a general matter,

however, we review the district court's ultimate legal

determination of probable cause de novo. Ornelas v. United States,

517 U.S. 690, 699 (1996).

II. Vehicle Search

The Fourth Amendment guarantees "[t]he right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures." U.S. Const. amend. IV.

Subject to limited exceptions, warrantless searches of private

property are per se unreasonable. California v. Acevedo, 500 U.S.

565, 580 (1991); United States v. Donlin, 982 F.2d 31, 33 (1st Cir.

1992). The mobility of automobiles and the attendant need to

prevent loss of evidence undergirds one such exception. A

warrantless search of an automobile will be upheld if "officers

have probable cause to believe that the vehicle contains

contraband." United States v. Ross, 456 U.S. 798, 808 (1982).

The government bears the burden of proving the lawfulness of

the search. Mincey v. Arizona, 437 U.S. 385, 390-91 (1978); United

States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990).

Specifically, the government must demonstrate that law enforcement

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officers had "a belief, reasonably arising out of circumstances

known to the seizing officer," that the vehicle "contain[ed] that

which by law is subject to seizure and destruction," Carroll v.

United States, 267 U.S. 132, 149 (1925).3 Our focus is on "what

the agents knew at the time they searched the car," United States

v. Goldman, 41 F.3d 785, 787 (1st Cir. 1994).

At the suppression hearing, both DEA agents and New Hampshire

police officers gave consistent and detailed testimony regarding

the surveilled transactions, all of which occurred in a similar

manner. Officers were able to corroborate information supplied by

the confidential source describing the vehicles driven by

appellant, including the van used on the night of the arrest. The

appellant was positively identified both by the confidential source

and agents familiar with him from a prior felony conviction. Two

witnesses - Officer Joslin and Agent Houle - personally observed

Lopez during surveilled transactions occurring prior to the night

of the arrest. Furthermore, at the scene of the arrest, Tremblay

explained to officers that Lopez had in his possession a larger

quantity of crack cocaine than she intended to purchase, thus

leading officers to believe that a substantial amount of drugs

remained in the van. Tremblay further described how, as the arrest

3
The government makes no effort to justify the search as a
search incident to arrest, see Chambers v. Maroney, 399 U.S. 42, 47
(1970) (acknowledging that search of an automobile occurring at a
police station "some time after the arrest . . . cannot be
justified as a search incident to an arrest"), and thus we focus
our analysis on the existence of probable cause for the search.

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team converged, Lopez leaned over her in the passenger seat,

suggesting that appellant had either hidden or discarded the drugs.

The latter possibility was of particular concern to officers given

the presence of several children living in close proximity to the

arrest site. Finally, a drug dog alerted aggressively in front of

the passenger seat, suggesting that drugs were present but

concealed.4 In short, the district court reasonably concluded that

officers had probable cause to search the van.

Appellant nevertheless contends that, under United States v.

Kyllo, 533 U.S. 27 (2001), we are required to weigh the evidence of

probable cause against the privacy interests of the individual

whose property was subject to search. Kyllo is inapposite. In

that case, the primary thrust of the court's analysis was "whether

the use of a thermal-imaging device . . . to detect relative

amounts of heat within the home constitutes a 'search' within the

meaning of the Fourth Amendment." Kyllo, 533 U.S. at 29. Nowhere

does the court conduct the type of balancing suggested by appellant

4
Appellant also challenges the reliability of Turbo, the drug
dog. See United States v. Owens, 167 F.3d 739, 749 (1st Cir. 1999)
("The existence of probable cause based on an alert by a drug dog
depends on the dog's reliability."). Philip Ahlin, the dog's
trained handler, testified at the suppression hearing that Turbo
was certified at the time of the search and had never - in Ahlin's
experience with the dog - given a false indication. Ahlin
explained that, during the search, Turbo's interest was
consistently focused on the front passenger seat, even when Ahlin
directed Turbo to other areas of the van. Cross-examination of
Ahlin in no way undermined this evidence of reliability and
consistency. We defer to the district court on this matter without
further explanation.

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concerning the reasonableness of the search rather than the

threshold determination of whether a search occurred.

Even if we were to turn to Kyllo for guidance, the recognized

privacy interest is of a different caliber from that in the present

case because the search there involved a home rather than a car.

See New York v. Class, 475 U.S. 106, 112 (1986) ("The Court has

recognized that the physical characteristics of an automobile and

its use result in a lessened expectation of privacy therein[.]").

Although the Supreme Court has acknowledged that the stop and

search of a vehicle does present a conflict between "the

individual's constitutionally protected interest in privacy and the

public interest in effective law enforcement," Ross, 456 U.S. at

804, the Court has also made clear that "[t]hese interests must

yield to the authority of a search" justified by probable cause.

Id. at 823. The fact that the contraband was in a container in a

locked, hidden compartment does not justify any extra measure of

consideration. The Supreme Court has explicitly stated that "[t]he

police may search an automobile and the containers within it where

they have probable cause to believe contraband or evidence is

contained."5 Acevedo, 500 U.S. at 580; see also Owens, 167 F.3d at

5
Appellant argues that United States v. Maple, 348 F.3d 260
(D.C. Cir. 2003), applies the Kyllo rationale to warrantless
searches of an automobile. Maple, however, dealt with the
reasonableness of a search in which there was no probable cause to
suspect contraband. The appellant in that case had been stopped
for speeding and subsequently arrested for driving with a suspended
license. This is markedly different from the facts before us, in
which law enforcement officers had a reasonable belief that

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750 ("[I]f probable cause justifies the search of a lawfully

stopped vehicle, it justifies the search of every part of the

vehicle and its contents that may conceal the object of the

search.") (quoting Ross, 456 U.S. at 800). Similarly, "efforts to

restrict access to an area do not generate a reasonable expectation

of privacy where none would otherwise exist," Class, 475 U.S. at

114.

The government has presented ample evidence demonstrating that

law enforcement officers had probable cause to search the vehicle

and the compartment. The relocation of the vehicle from the

parking lot to the police station did not deprive the officers of

probable cause to search. See Chambers, 399 U.S. at 52 ("[T]he

blue station wagon could have been searched on the spot . . . .

The probable-cause factor still obtained at the station house[.]").

The district court properly denied appellant's motion to suppress

the evidence discovered in the vehicle.

III. Statements Made to Law Enforcement Officers

Appellant next argues that the district court should have

suppressed the post-arrest remarks he made to Drysdale after he

learned that Houle and Story had located the hidden compartment.

See supra at 5. Appellant claims that the admission of his

inculpatory remarks violated his rights under Miranda v. Arizona,

384 U.S. 436 (1965). In his brief, appellant admitted that Agent

appellant's vehicle contained crack cocaine.

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Story advised him of his Miranda rights at the scene of the arrest,

and that appellant affirmatively responded that he understood those

rights.

In order for appellant to make out a claim under Miranda,

however, his statements must have been the product of custodial

interrogation. Id. at 444 ("[T]he prosecution may not use

statements . . . stemming from custodial interrogation of the

defendant unless it demonstrates the use of procedural safeguards

effective to secure the privilege against self-incrimination.").

The protections of Miranda extend beyond actual questioning by the

police to include the "functional equivalent" of interrogation,

meaning "any words or actions on the part of the police (other than

those normally attendant to arrest and custody) that the police

should know are reasonably likely to elicit an incriminating

response from the suspect." Rhode Island v. Innis, 446 U.S. 291,

301 (1980).

Although Story and Houle did formally question appellant about

the registration of the van, the agents ceased interrogation when

appellant indicated he wanted to talk to his lawyer. Although

Lopez remained in custody, any statement made "freely and

voluntarily without any compelling influences is, of course,

admissible in evidence," Miranda, 384 U.S. at 478. See Innis, 446

U.S. at 299.

We see no indication that appellant's statements stemmed from

custodial interrogation or its functional equivalent. Houle's

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remark, although suggesting that the case against Lopez was

strengthened by discovery of "the stuff," was not designed to

elicit an incriminating response. Although our focus must be

"primarily upon the perceptions of the suspect, rather than the

intent of the police," Innis, 446 U.S. at 301, it is difficult to

see how appellant could have construed a passing remark as the

functional equivalent of interrogation. Indeed, Houle left the

room immediately after making the comment, signaling to appellant

that no response was sought.

In United States v. Genao, 281 F.3d 305 (1st Cir. 2002), we

upheld the admission of a confession blurted out by the defendant

in response to an officer's statement - in conjunction with a

display of seized contraband - that "[w]e've got a problem here."

See id. at 310. We reasoned that the remark was brief, not worded

in a particularly confrontational manner, and, in the context of

the ongoing search, intended simply to get the defendant's

attention before reading him his rights. See id. at 311.

Similarly, Houle's succinct remark simply highlighted information

that appellant needed to know to convey to his attorney, who at

that point was on his way to the station. Cf. United States v.

Conley, 156 F.3d 78, 83 (1st Cir. 1998) ("A law enforcement

officer's mere description of the evidence and of potential charges

against a suspect . . . hardly can be classified as

interrogatory.").

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 Because appellant's voluntary statements, though

incriminating, were not the product of custodial interrogation, the

district court properly denied the motion to suppress.6

IV. Alleged Prosecutorial Vouching

Appellant contends that remarks in the prosecutor's opening

and closing statements constituted vouching for an absent witness.

No objection was made at trial and thus we review only for plain

error. United States v. Newton, 327 F.3d 17, 26 (1st Cir. 2003).

The registered owner of the van, Bob Cole, was scheduled to

testify on the final day of the trial. In his opening statement,

the prosecutor mentioned that Cole would testify that he - Cole -

never saw the van and did not have a valid driver's license. The

night before his scheduled testimony, however, Cole was visited by

a defense investigator. Although we do not know what was said to

Cole, he was subsequently admitted to the hospital for mental

6
After oral argument, counsel for appellant submitted a Rule
28j letter arguing that admission of appellant's remarks was barred
by the Supreme Court's decision in Crawford v. Washington, 124
S.Ct. 1354 (2004). Under Crawford, certain testimonial hearsay is
inadmissible "unless the declarant is unavailable and the accused
has had a prior opportunity to cross-examine the declarant," Horton
v. Allen, 370 F.3d 75, 83 (1st Cir. 2004). However, for reasons
similar to our conclusion that appellant's statements were not the
product of custodial interrogation, the statements were also not
testimonial in nature. The Supreme Court offered three general
formulations of the "core class of testimonial statements,"
Crawford, 124 S.Ct. at 1364, namely, "ex parte in-court testimony
or its functional equivalent," id., "extrajudicial statements . .
. contained in formalized testimonial materials," id., and
statements "made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available
for use at a later trial," id. Appellant's statements fall under
none of these three formulations.

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health reasons and was thus unavailable. In his closing statement,

the prosecutor explained to the jury that Cole didn't testify

"because we've established that even though his name is on the

registration, Carlos Lopez kept that van."

The prosecution is not permitted to "tell the jury what

witnesses who did not testify would have said had they testified,"

United States v. Palmer, 37 F.3d 1080, 1087 (5th Cir. 1994).

Neither may the prosecution place the prestige of the government

behind a witness nor implicitly vouch for a witness by indicating

that the testimony is supported by information not presented to the

jury. United States v. Martin, 815 F.2d 818, 821-22 (1st Cir.

1987).

We discern none of the above errors in the prosecutor's

closing remarks. The prosecutor did not offer any indication of

the substance of what Cole would have said, but instead simply

clarified that other testimony proved that Lopez controlled the

vehicle. The prosecutor pointed to evidence presented to the jury

- the testimony of Tremblay regarding multiple drug transactions

between her and Lopez in the van, the testimony of the mechanic who

performed several thousand dollars worth of work on the car at

Lopez' request - that proved the same point.

V. Denial of Motion for Judgment of Acquittal

Appellant's final claim concerns the court's denial of his

motion for judgment of acquittal under Fed. R. Crim. P. 29.

Appellant's counsel did not submit a motion for acquittal following

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the close of the government's evidence and, when asked by the judge

whether he wished to do so at the conclusion of all the evidence,

expressly declined. At the sentencing hearing on May 14, 2003 -

three months after the jury was discharged - appellant offered a

lengthy and detailed allocution. The court treated the allocution

as a Rule 29 motion for acquittal, but then denied the motion.

Despite the district court's lenience, we conclude that the

issue was waived by the appellant's failure to comply with the

procedural requirements of Rule 29, which require the motion to be

made by the defendant within seven days "after a guilty verdict or

the court discharges the jury, whichever is later[.]" Fed. R.

Crim. P. 29(a). Although the court may also "on its own consider

whether the evidence is insufficient," it must do so before

submission to the jury. Fed. R. Crim. P. 29(c); see also United

States v. Davis, 992 F.2d 635, 638 (6th Cir. 1993) (concluding that

the district court lacked authority to sua sponte enter a judgment

of acquittal more than two months after the jury was discharged).

We thus review appellant's claim only for "clear and gross

injustice," United States v. Hadfield, 918 F.2d 987, 996 (1st Cir.

1990).

The record fails to reveal such unfairness. We only briefly

recite the case against appellant, as there is little need for more

extensive analysis. Information supplied by the confidential

informant was corroborated during multiple surveillance operations

involving Tremblay and appellant. The testimony regarding the five

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surveilled drug transactions was consistent from all witnesses -

including law enforcement agents, the confidential informant and

Tremblay. Appellant was positively identified on multiple

occasions. A hidden compartment in the van that was maintained and

used by the appellant was found to contain drugs, as well as a gun

with an obviously obliterated serial number, and photographs of

appellant and his girlfriend, thus substantiating knowing

possession. Appellant stipulated to his status as a convicted

felon, thus supporting his conviction for being a felon in

possession of a firearm. In short, we see no basis to disturb the

verdict.7

Affirmed.

7
Appellant submitted a pro se brief in which he argued that
the initial arrest warrant was not supported by probable cause.
Appellant raised the issue of the validity of the arrest warrant
only during his allocution at the sentencing hearing. This belated
effort fails to preserve the issue for review. It arguably should
have been the subject of a pretrial motion, and, at a minimum,
should have been raised in the district court at trial. See Fed.
R. Crim. P. 12(b)(3)(A) (requiring that a motion alleging a defect
in instituting the prosecution must be made before trial); United
States v. Nee, 261 F.3d 79, 86-87 (1st Cir. 2001)("'Arguments not
raised below will be entertained on appeal only in horrendous cases
where a gross miscarriage of justice would occur and, in addition,
where the newly asserted ground is so compelling as virtually to
insure appellant's success.'")(quoting United States v. Haggert,
980 F.2d 8, 11 (1st Cir. 1992)). In any event, the argument is
utterly without merit, whether it was forfeiture or not.

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