US v. Almonte-Baez

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Bruce M. Selya, Appellate Judge and Sandra L. Lynch, Appellate Judge. Published. [15-2367]

Case: 15-2367

Document: 00117154134

Page: 1

Date Filed: 05/12/2017

Entry ID: 6091706

United States Court of Appeals
For the First Circuit
No. 15-2367
UNITED STATES OF AMERICA,
Appellee,
v.
YGOA ALMONTE-BÁEZ,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]

Before
Torruella, Selya and Lynch,
Circuit Judges.

J. Thomas Kerner for appellant.
David J. D'Addio, Assistant United States Attorney, with whom
William D. Weinreb, Acting United States Attorney, was on brief,
for appellee.

May 12, 2017

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SELYA, Circuit Judge.

Date Filed: 05/12/2017

Entry ID: 6091706

Success sometimes depends on

taking full advantage of fortuitous occurrences.

In this case,

the federal Drug Enforcement Administration (DEA), while engaged
in an investigation of a suspected drug-trafficking operation,
stumbled

across

operation.

a

second

(more

substantial)

drug-trafficking

Much of the evidence concerning this second operation

was unearthed following a warrantless entry by DEA agents into an
apartment that, as matters turned out, served as a stash house for
the second drug-trafficking operation.

In the ensuing prosecution

of a participant in the second drug-trafficking operation, the
district court found that probable cause, combined with exigent
circumstances, justified the warrantless entry.

At trial, the

jury convicted.
Focusing with laser-like intensity on the warrantless
entry and its aftermath, the appellant now presses this singleissue appeal.
determination
therefore,

in

He argues that the district court erred in its
that

the

denying

incriminating evidence.

warrantless
his

motion

entry
to

was

suppress

lawful
a

trove

and,
of

After careful consideration, we uphold

the denial of the appellant's motion to suppress and affirm the
judgment below.
I.

BACKGROUND
When reviewing the denial of a motion to suppress, we

take the facts as the trial court found them, consistent with

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record support, see United States v. Romain, 393 F.3d 63, 66 (1st
Cir. 2004), adding uncontradicted facts where appropriate.

In the

summer of 2013, DEA agents, working with state and local police
officers, were investigating a drug-trafficking ring based in
Lawrence, Massachusetts.

During the course of this investigation,

the agents intercepted telephone calls between two persons (the
targets) thought to be part of the ring. Through these intercepted
calls, the agents learned that the targets were planning to rob a
quondam

associate,

one

José

Medina-López

(Medina),

whom

the

targets had reason to believe was receiving bulk drug shipments on
a weekly basis.1
The targets hatched a plot that contemplated attaching
a GPS unit to Medina's car in the hope that it would lead them to
his cache of drugs and cash.

The agents decided that it was time

for them to act.

They began by canvassing the streets in search

of Medina's car.

On the morning of July 26, 2013, they hit the

jackpot: they observed Medina leaving a multi-family residential
building on Cedar Street, carrying a large trash bag that was so
heavy that he needed both hands to lift it.

He hoisted the trash

bag into his car and drove away.

1

At the time of the intercepts, Medina was a known quantity
to the agents: in March of 2013, he had participated in a
controlled purchase of heroin (while he was acting as a courier
for one of the targets). Some years before, he had been convicted
on a state drug charge and had served a lengthy prison sentence.
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The agents followed Medina and — with the aid of state
and local police — pulled him over after they had observed him
committing traffic infractions.

When the agents reached his car

window, Medina was trembling and appeared to be very nervous.

The

agents questioned him about where he had come from and where he
was heading, and Medina provided answers the agents knew to be
false.
At that point, the agents asked Medina for permission to
search his car.

Medina acquiesced.

Preliminary to the search,

Medina got out of the car and, as he disembarked, the agents
spotted a large wad of cash sticking out of his pants pocket.

They

seized the cash and arrested Medina for his participation in the
March heroin transaction.
The agents then proceeded to search the car.

In the

trash bag that Medina had lugged from the building on Cedar Street,
they found more than $370,000 in cash.
within

the

car,

stashed

in

a

box

They discovered more cash
and

various

bags.

When

questioned, Medina offered no credible explanation for the oceans
of cash (all of which the agents seized).
Spurred on by what they had discovered, the agents
returned to the building on Cedar Street.

Once there, they

encountered the landlord, who confirmed that Medina rented the
second-floor apartment.

At that juncture, the agents could have

stopped their ongoing investigation and sought a search warrant

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for the apartment.

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Instead, they went to that apartment and

knocked on the front door.

A voice from within the apartment

responded, "Hello, who is it?" The agents announced their presence
and immediately heard the sound of someone inside running away,
that is, toward the back of the apartment.

The front door was

sealed over, so the agents moved to a side door.

Concerned that

the occupant was either trying to escape or destroy evidence, the
agents broke down the side door and forcibly entered the premises.
Once inside, they saw a man, later identified as defendantappellant Ygoa Almonte-Báez, trying to remove a barricade and
escape through the back door.2

They immediately took the appellant

into custody.
A protective sweep of the apartment followed. See United
States v. Martins, 413 F.3d 139, 149-50 (1st Cir. 2005) (discussing
nature and scope of permissible protective sweep).

During that

sweep, the agents observed in plain view heroin and paraphernalia
associated with the heroin trade, including scales and packaging
materials.

They also observed notes and records pertaining to

heroin sales.

2

At trial, the government introduced evidence indicating that
the appellant was the manager of a multi-million-dollar bulk heroin
distribution operation, which had its regional headquarters at the
Cedar Street apartment. He had enlisted Medina (who was primarily
responsible for collecting money from wholesale customers) as one
of his underlings.
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Relying partly on what they had seen in plain view, the
agents obtained a search warrant later the same day.

Returning to

the apartment, they seized about 20 kilograms of heroin and an
assortment of drug-processing tools.
In March of 2014, a federal grand jury charged the
appellant with conspiring to possess with intent to distribute and
to distribute one kilogram or more of heroin.
§ 841(a)(1), (b)(1)(A)(i); 21 U.S.C. § 846.

See 21 U.S.C.
During pretrial

proceedings, the appellant moved to suppress the evidence gathered
from the Cedar Street apartment.

He maintained that, because the

agents' initial entry into the apartment was unlawful, both the
protective sweep and the subsequently issued search warrant (which
relied in material part on information gleaned during the initial
entry) were invalid and any evidence seized as a result was
inadmissible as the fruit of a poisonous tree.

See Wong Sun v.

United States, 371 U.S. 471, 484-85 (1963). The government opposed
the

motion,

and

the

parties

filed

affidavits,

documentary

exhibits, and memoranda in support of their respective positions.
After reviewing the parties' submissions and hearing
arguments of counsel, the district court concluded that, before
undertaking the warrantless entry, the agents had probable cause
to

believe

that

the

apartment

contained

evidence

of

drug-

trafficking activity and that exigent circumstances justified
their warrantless entry.

See United States v. Almonte-Báez, No.

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14-10089,

2014

WL

Page: 7

6751207,

at

*1

Date Filed: 05/12/2017

(D.

Mass.

Dec.

Entry ID: 6091706

1,

2014).

Accordingly, the court upheld the legality of both the initial
entry and the warrant-backed search, and it denied the motion to
suppress.

See id. at *1-2.
A jury later convicted the appellant of the charged

crimes.

This timely appeal ensued.

alleges

trial

error

nor

In it, the appellant neither

challenges

his

156-month

sentence.

Instead, he trains his fire on only a single claim of error: the
district court's refusal to grant his motion to suppress.
II.

ANALYSIS
We review the district court's findings of fact for clear

error and afford de novo review to its ultimate conclusions
regarding

the

circumstances.

existence

of

both

probable

cause

and

exigent

See Ornelas v. United States, 517 U.S. 690, 699

(1996); Romain, 393 F.3d at 68.

Our analysis begins with bedrock:

the Fourth Amendment protects individuals "against unreasonable
searches and seizures."
standard,

warrantless

U.S. Const. amend. IV.
searches

presumptively unreasonable.
398, 403 (2006).

of

private

Under this

premises

are

See Brigham City v. Stuart, 547 U.S.

To secure the admission of evidence obtained

without a warrant, the government must show that the warrantless
search fell within one of a handful of narrowly defined exceptions.
See Romain, 393 F.3d at 68.

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One such exception to the Fourth Amendment's Warrant
Clause is for exigent circumstances.

See Kentucky v. King, 563

U.S. 452, 459-60 (2011); United States v. Curzi, 867 F.2d 36, 41
(1st Cir. 1989).

That exception generally requires a threshold

showing that law enforcement officers had probable cause to enter
the premises.

See United States v. Capelton, 350 F.3d 231, 240

(1st Cir. 2003).

Pertinently, probable cause exists when the

totality of the circumstances create "a fair probability that
contraband or evidence of a crime will be found in a particular
place."3

United States v. Tanguay, 787 F.3d 44, 50 (1st Cir. 2015)

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Probable cause is a necessary, but not a sufficient,
precondition for invoking the exigent circumstances doctrine.
Capelton, 350 F.3d at 240.

See

Even when armed with probable cause,

the government still must show that an exigency existed sufficient
to justify the warrantless entry.
are

present

when

"there

is

See id.

such

a

Exigent circumstances

compelling

necessity

for

immediate action as will not brook the delay of obtaining a
warrant."

Matalon v. Hynnes, 806 F.3d 627, 636 (1st Cir. 2015)

(quoting Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st Cir.
1999)).

3 We

say "pertinently" because, in other contexts, the contours
of the necessary showing of probable cause may differ. See, e.g.,
Martins, 413 F.3d at 147 (discussing emergency aid doctrine).
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The

exigent

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Date Filed: 05/12/2017

circumstances

doctrine

Entry ID: 6091706

reflects

an

understanding and appreciation of how events occur in the real
world.

"[P]olice officers are often forced to make split-second

judgments — in circumstances that are tense, uncertain, and rapidly
evolving."

King, 563 U.S. at 466 (quoting Graham v. Connor, 490

U.S. 386, 396-97 (1989)).

The reasonableness of those judgments

is normally the keystone of whether an officer's actions can find
shelter under the exigent circumstances doctrine.

Consequently,

the government ordinarily may invoke the exigent circumstances
exception when it can identify an "objectively reasonable basis"
for concluding that, absent some immediate action, the loss or
destruction of evidence is likely.

United States v. Samboy, 433

F.3d 154, 158 (1st Cir. 2005).
Before proceeding further, we digress briefly.

The

Fourth Amendment's protections extend only to those who have a
reasonable expectation of privacy in the entered premises.
Romain, 393 F.3d at 68.

See

Citing this requirement, the government

suggests that the appellant lacked a reasonable expectation of
privacy in the Cedar Street apartment and, thus, has no standing
to challenge the warrantless entry.4

4 In

The district court prudently

this vein, the parties squabble over whether the apartment
was a stash house, used only to store illicit drugs and other
contraband, or whether it was a spartanly appointed dwelling where
the appellant was an overnight guest. Individuals present at a
stash house generally have no reasonable expectation of privacy,
see Minnesota v. Carter, 525 U.S. 83, 90-91 (1998), but overnight
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eschewed any findings on this issue, instead assuming that the
appellant had a reasonable expectation of privacy.
Báez, 2014 WL 6751207, at *1.

See Almonte-

We follow the district court's lead

and assume, albeit without deciding, that the appellant had a
reasonable expectation of privacy in the apartment.
With this digression put to one side, we return to the
question of exigent circumstances.

In answering that question, we

turn first to the existence vel non of probable cause.

That

assessment must be made in light of what the agents knew at the
time that they effected their warrantless entry. See United States
v. Tibolt, 72 F.3d 965, 969 (1st Cir. 1995). In this instance, the
agents knew that Medina rented the apartment and, based on the
intercepted telephone calls, they reasonably suspected that he
received weekly heroin shipments at that address.

Just that

morning, they had observed Medina carrying a large trash bag,
stuffed with several hundred thousand dollars in cash, out of the
apartment.

In light of Medina's false answers to the agents'

queries during the traffic stop and his failure credibly to explain
the provenance of the cash, the agents had convincing reasons to
believe that the cash had not been obtained legally.

To cinch the

matter, Medina (a previously convicted drug dealer) was known to
be currently involved in the drug trade.

The agents knew that he

guests in a home generally have such an expectation, see Minnesota
v. Olson, 495 U.S. 91, 96-97 (1990).
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had been described in the wiretap intercepts as receiving weekly
drug shipments.

They also knew that he had sold heroin to a

cooperating witness a few months earlier.
A finding of probable cause does not require proof of
guilt beyond a reasonable doubt.

See United States v. Hoffman,

832 F.2d 1299, 1305-06 (1st Cir. 1987).

Rather, it requires (as

pertinent here) proof adequate to ground an objectively reasonable
belief that evidence of a crime is likely to be found in the
premises to be entered.
32 (1st Cir. 2014).

See United States v. Floyd, 740 F.3d 22,
The district court determined that the

government's proof rose to this level, see Almonte-Báez, 2014 WL
6751207, at *1, and we agree.
The

appellant's

rejoinder

consists

primarily

of

an

attack on the factfinding on which the district court's probable
cause determination rests.

He contends that the intercepted

telephone calls did not reliably indicate that Medina received
weekly drug shipments, and that the government did not produce
information

adequate

to

controlled drug purchase.

show

that

Medina

participated

in

a

But the district court's findings in

these respects derive from inferences reasonably drawn from the
evidence adduced, and those findings are findings of fact.
United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 2017).
they are reviewed for clear error.

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See id.

See
Thus,

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This

deferential

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standard

impenetrable barrier for the appellant.

of

review

Entry ID: 6091706

presents

an

Under clear error review,

an appellate court must accept the trial court's findings of fact
unless, "after assessing the whole of the record," it is "firmly
convinced that a mistake has been made." United States v. Dunston,
851 F.3d 91, 101 (1st Cir. 2017).

Here, we have formed no such

firm conviction and, thus, we detect no clear error: the government
filings in the court below included records reflecting that Medina
was a known drug dealer and received regular drug shipments. While
the appellant makes an attempt to call these records into question,
that attempt is entirely unpersuasive.5

Without more grist for

the mill, we cannot disparage the district court's findings of
fact as clearly erroneous.

See United States v. Gamache, 792 F.3d

194, 198 (1st Cir. 2015).
The

appellant

also

challenges

the

district

court's

related finding that the situation the agents encountered at the
Cedar Street apartment constituted exigent circumstances.

5

The

We note, moreover, that the parties agreed during the
suppression hearing that the district court was not obliged to
take live testimony unless it deemed such testimony necessary after
examining the submitted affidavits and exhibits. The court did
not deem such testimony necessary, and the appellant did not object
to that determination.
"If any principle is settled in this
circuit, it is that, absent the most extraordinary circumstances,
legal theories not raised squarely in the lower court cannot be
broached for the first time on appeal." Teamsters, Chauffeurs,
Warehousemen & Helpers Union v. Superline Transp. Co., 953 F.2d
17, 21 (1st Cir. 1992).
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facts,

Document: 00117154134

as

supportably

straightforward.

Page: 13

found

by

Date Filed: 05/12/2017

the

district

Entry ID: 6091706

court,

are

As soon as the agents knocked on the front door

of the apartment and identified themselves, they heard someone
inside the apartment running away from the door.
that the door was sealed shut.

They noticed

Given the totality of what they

knew and what they reasonably suspected, the agents had reason to
think — as the district court found — that the unseen individual
was trying to destroy evidence.

The agents knew that drugs can be

flushed down a toilet or washed down a drain in the blink of an
eye.

See King, 563 U.S. at 461; Samboy, 433 F.3d at 158.

Furthermore, the fact that the front door was sealed shut was
itself suspicious.
Weighing these facts, the district court found that the
agents were confronted by exigent circumstances.

Moreover, the

agents "did not create the exigency by engaging or threatening to
engage in conduct that violates the Fourth Amendment."
U.S. at 462.

King, 563

Thus, the court reasoned, the exigency — combined

with the existence of probable cause — justified the agents'
warrantless entry into the apartment.
6751207, at *1-2.

See Almonte-Báez, 2014 WL

We agree: when entry into private premises is

reasonably necessary to head off the imminent loss of evidence, a
law enforcement officer armed with probable cause normally may
enter the premises without a warrant.
Samboy, 433 F.3d at 158.

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See King, 563 U.S. at 460;

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In an effort to blunt the force of this reasoning, the
appellant

suggests

that

what

the

agents

heard

was

equally

consistent with the sounds made by someone moving toward the front
door

to

admit

graveyard:

the

the

agents.

front

door

But
was

this
sealed

is

whistling

shut

and,

past

the

given

the

circumstances that obtained, a law enforcement officer might well
have distinguished whether the footsteps of a person inside the
apartment were moving toward his location or away from it.

The

sockdolager, of course, is that the district court credited the
agents' impressions that the noises they heard sounded like someone
running away from the front door.
6751207, at *1.

See Almonte-Báez, 2014 WL

That was a finding of fact, see Nuñez, 852 F.3d

at 144, and it was not clearly erroneous.
In sum, the record solidly supports the district court's
determination

that

probable

cause

and

exigent

circumstances

coalesced to justify the agents' warrantless entry into the Cedar
Street apartment.

Consequently, the evidence found in plain sight

at the time of that entry, together with the evidence gathered as
a result of the ensuing warrant-backed search, was admissible at
trial.

It follows inexorably, as night follows day, that the

district court did not err in denying the appellant's motion to
suppress.

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III.

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CONCLUSION
We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

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