United States v. Ferreras ( 1999 )

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 97-2101



                          UNITED STATES,



                            Appellee,



                                v.



                         DAMIAN FERRERAS,



                      Defendant, Appellant.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



          [Hon. Ronald R. Lagueux, U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



                      Lipez, Circuit Judge,



                    and Fusté, District Judge.



                      _____________________



    Alan Scribner, by appointment of the Court, for appellant.

    Zechariah Chafee, Assistant United States Attorney, with whom

Margaret E. Curran, United States Attorney, was on brief, for

appellee.





                       ____________________



                       September 15, 1999

                       ____________________         TORRUELLA, Chief Judge. Appellant Damian Ferreras

("Ferreras") was charged with possession with intent to distribute

over fifty grams of cocaine base in violation of 21 U.S.C.

§ 841(a)(1) & (b)(1)(A). The district court heard testimony on

Ferreras's motion to suppress the physical evidence seized in his

apartment and, on the same day, the court denied the motion.

Subsequently, the case was tried before a jury and Ferreras was

convicted of the sole count on which he was tried.  At the

sentencing hearing, the government produced testimony that the

cocaine base was crack.  The district court found that the

substance was crack and sentenced Ferreras on that basis.  Ferreras

was sentenced to 121 months imprisonment and five years of

supervised release.  As a condition of supervision, Ferreras was

ordered to surrender at the completion of his term of imprisonment

to the Immigration and Naturalization Service for deportation

proceedings.  This appeal followed.

                            BACKGROUND

         The following facts were adduced at trial.  On

February 19, 1997, at 4:30 p.m., detectives from the Providence

Police Intelligence Bureau went to the vicinity of 30 Pekin Street,

Providence with a search warrant for the second floor apartment at

that address.  30 Pekin Street is a three story tenement house.

The detectives saw Damian Ferreras's car parked in front of the

house.  Damian Ferreras came out of a side door of the house and

got into the car.  The detectives stopped the car down the street

and told Ferreras that they had a search warrant for his apartment.

An electronic pager was seized from Ferreras and he and his car

were brought back to the house.

         At the house, a detective used a key from the key ring

taken from the ignition of Ferreras's car to open the side door of

the building.  A team of detectives went to the second floor and

searched the bedrooms, kitchen, and bathroom for narcotics.

Detectives Edward Leste and David Lussier went up the stairs to the

attic where three bedrooms had been constructed.  Detective Lussier

used a key from Ferreras's key ring to unlock one of the bedroom

doors.  In a small closet in this bedroom Detective Leste found a

pair of high leather boots.  From one of the boots he withdrew a

clear plastic bag which held 101.74 grams of cocaine base.  The

detective, who has extensive experience in seizures of crack

cocaine, recognized the cocaine base as being the lumpy, rocklike

substance known as crack.  From the boot he also pulled $1,750 in

cash.  Searching the room further, the detective found, in a frame

for a stereo speaker, an electronic digital scale of a type

commonly used to weigh narcotics.  On top of the frame the

detective found several pieces of personal paperwork bearing the

name of Damian Ferreras, including recent court documents.  The

detectives testified that pagers, quantities of cash, electronic

scales, and drugs, taken together, are common elements of drug

sales operations.

         The bedroom had one bed mattress on a box spring and a

young man's clothing in the closet.  There was no indication that

anyone other than Ferreras stayed in the bedroom.  Ferreras was

brought to the Providence Police Station where he was escorted to

the Intelligence Bureau Office.  He was informed of his Miranda

warnings in Spanish and English and questioned by Detective

Lussier.  Ferreras told the detective that the boots found in his

closet by Detective Leste had been bought by Ferreras on Canal

Street in New York City.  He said that the apartment where he was

staying belonged to his mother, that he slept in the upstairs

bedroom periodically, and that he had last slept in the bedroom two

nights previously but had spent the last night at his girlfriend's

place.  Ferreras went on to say that the money in the boot belonged

to him, but that the drugs belonged to another man, for whom

Ferreras was holding the drugs.  Ferreras said he did not know the

name of the other person but could call him on the telephone.

         The crack seized from the boot was analyzed at the Rhode

Island Drug Chemistry Laboratory and tested positive for the

presence of cocaine base.  The drugs weighed 101.74 grams (3.58

ounces).  The detectives testified from their experience that the

value of crack was about $1,000 to $1,200 per ounce and that this

quantity of crack was definitely intended for distribution.

         Ferreras moved to suppress the physical evidence on

grounds that the search of the third floor exceeded the scope of

the warrant.  The government entered into evidence the search

warrant, the complaint, and the affidavit.

         The face of the affidavit showed that Detective Edward

Leste of the Providence Police Department had information from a

reliable informant that Damian Ferreras "is storing and selling

cocaine from his apartment located at 30 Pekin Street, 2nd floor

apt., and also storing cocaine in the basement . . . ."  The

affidavit described 30 Pekin Street in Providence as a "2 1/2 story

dwelling and being grey with white trim in color."

         The affidavit further showed that Detective Leste, within

a few days prior to February 19, 1997, had sent an informant into

30 Pekin Street to buy cocaine.  The informant came out with

cocaine and said that he had bought it from Damian Ferreras while

inside the second floor apartment.

         On February 19, 1997 a state court judge issued a warrant

to search for cocaine, drug sale paraphernalia, and drug money.

The search warrant stated:

         Place and person to be searched:

         30 Pekin Street, 2nd floor apartment and basement

         Damian Ferreras, John Doe, dob-2-21-75.



         Later that day a Providence Police raid team went to

execute the warrant at 30 Pekin Street.  Ferreras walked out of the

house, got into a car, and drove down the street.  He was stopped

by the police and brought back to the building he had just left

along with a set of keys from the ignition of the car he had been

driving.  The police used a key from the ring to enter a side door

on the ground floor of the building.

         Just inside the entrance there was a door leading to the

cellar and a flight of stairs up to the second floor.  At the top

of the stairs was a door with a lock.  The door opened into a small

hallway on the second floor, and was closed but not locked.

         About five feet to the right of the stairway door was a

locked door which the police opened with a key from Ferreras's key

ring.  Through this door, the police entered living quarters on the

second floor including a kitchen, two bedrooms, a bathroom, and a

living room.  About eight feet across the vestibule from the door

to the second floor living quarters another set of steps led to the

attic.  There was no door at the bottom, or at the top of the steps

from the second floor hallway to the attic.

         In the attic the police saw a hall with three rooms in a

row on the left-hand side.  These rooms appeared to have been

recently constructed and not part of the original building.  The

first room's door was closed and locked and a detective opened it

with another key from Ferreras's key ring.  Inside was a box-spring

and mattress and a closet full of a man's clothes.  Inside a boot

the police found the over 100 grams of crack.  There was also a

television set with a cable leading through a hole in the floor to

the second story.

         The second room also had a bed and appeared to have been

lived in.  The third one had only a mattress.  The right-hand side

of the hallway was divided into two unfinished rooms which were

still under construction and revealed plaster, sheetrock, tools,

dirty floors, and in one room a metal can of urine.  There was no

sink, shower, bathtub, kitchen, refrigerator, stove, or pantry, and

no running water anywhere in the attic.  There was a space heater

in one of the attic rooms.  The only access to the attic was via

the set of steps from the small hallway on the second floor.  A

detective examined the electric meters on the exterior of the

building and found that one was for the first floor apartment, and

the other for the second floor.  There was none for the attic.

         Ferreras called his brother Victor Ferreras who testified

that on February 19th there was a door at the foot of the steps

leading to the attic, that there was a working sink and toilet in

the attic, and that there had been a shower but that he had

dismantled it before the date of the raid.  Victor Ferreras said

that he had been manager of the property and that his brother and

another man lived in the attic.  He said his mother lived on the

second floor but had been away in the Dominican Republic on the day

the police entered.

         In rebuttal the government entered into evidence the

testimony of a defense investigator given at a bail hearing on the

case on March 6, 1997.  That investigator testified that he had

examined the attic just after the police raid and had not seen a

bathroom.

         The district court found that Victor Ferreras's testimony

was not credible.  Based on the facts described by the police, the

court found that the attic and second floor were all one apartment.

He thus found that the search of the attic was within the scope of

the search warrant.

         At sentencing, Ferreras argued that the substance that

was identified by the chemist as cocaine base at trial was not the

form of cocaine base known by the street term "crack."  The

government called as its witness Sargent David Lussier who had

served nearly eleven years on the Providence Police force.  During

his tenure on the force he had been involved in hundreds of

investigations of crack cocaine trafficking, including seizures of

the drug and arrests of those trafficking it.  He had participated

in a number of law enforcement courses, including a two week school

run by the Drug Enforcement Administration, during which he had

studied aspects of drug investigations.  Lussier explained how

crack is prepared, based on his instruction at school.  At the

hearing he examined the cocaine base which had been seized from

Ferreras's boot and noted that it was hard, lumpy, and brown.  He

said that those were the characteristics of crack cocaine and gave

his opinion that the substance was crack.  On cross-examination he

further described the substance as crack based on "the feel, the

texture, the sight, everything I know about the subject . . . ."

         The court declared that it was satisfied "from all the

evidence in the case" that Ferreras had possessed crack cocaine and

imposed the minimum sentence of imprisonment within the applicable

guideline range, 121 months, as requested by the government.

                            DISCUSSION

I.  The Suppression Motion

         On appeal, Ferreras challenges the district court's

denial of his suppression motion, contending that the search of the

attic at his 30 Pekin Street residence violated the Fourth

Amendment.  His argument is without merit.

         Our review of a district court's decision to grant or

deny a suppression motion is plenary.  See United States v.

McCarthy, 77 F.3d 522, 529 (1st Cir. 1996).  "We defer, however, to

a district court's factual findings if, on a reasonable view of the

evidence, they are not clearly erroneous."  United States v.

DeMasi, 40 F.3d 1306, 1311 (1st Cir. 1994).  A clear error exists

only if, after considering all the evidence, we are left with a

definite and firm conviction that a mistake has been made.  See

United States v. McLaughlin, 957 F.2d 12, 17 (1st Cir. 1992).

Moreover, we will uphold a district court's decision to deny a

suppression motion provided that any reasonable view of the

evidence supports the decision.  See United States v. García, 983

F.2d 1160, 1167 (1st Cir. 1993).

          The Fourth Amendment serves to protect the individual's

interest in privacy.  Any search intruding upon that privacy

interest must be justified by probable cause and must satisfy the

particularity requirement, which limits the scope and intensity of

the search.  See United States v. Bonner, 808 F.2d 864, 867 (1st

Cir. 1986).  When investigators fail to limit themselves to the

particulars in the warrant, both the particularity requirement and

the probable cause requirement are drained of all significance as

restraining mechanisms, and the warrant limitation becomes a

practical nullity.  See id.  The concern here is the particularity

requirement's limitation on the area to be covered by the search

operation.

         The authority to search granted by any warrant is limited

to the specific places described in it, and does not extend to

additional or different places.  See id. at 868.  However, "search

warrants and affidavits should be considered in a common sense

manner, and hypertechnical readings should be avoided."  Id.  For

example, warrants authorizing a search of "premises" at a certain

address authorize a search of the buildings standing on that land.

See id. (citing United States v. Williams, 687 F.2d 290, 293 (9th

Cir. 1982); United States v. Meyer, 417 F.2d 1020, 1023 (8th Cir.

1969)).  This Court has held that a warrant authorizing a search of

"the premises known as a single family trailer . . . with attached

carport," also authorized the search of a disabled car, parked

adjacent to the carport, and a birdhouse hanging from a tree about

fifteen feet from the trailer steps.  See United States v. Asselin,

775 F.2d 445, 447 (1st Cir. 1985).

         In United States v. Heldt, 668 F.2d 1238, 1265 (D.C. Cir.

1981), the language "suite of offices of Mr. Heldt" was given just

as broad an interpretation as "premises" was given in Asselin.  The

court looked at the question of whether or not a free-standing

office, not mentioned in the warrant, belonging to a person who did

not work for Heldt, could reasonably have been viewed by the

searching agents as constituting part of "the suite of offices of

Mr. Heldt."  See Heldt, 668 F.2d at 1263.  The office was

reasonably considered by the searching agents as part of, or even

appurtenant to, the "properties" to be searched.  See id. at 1265;

see also  United States v. Príncipe, 499 F.2d 1135 (1st Cir. 1974)

(where warrant authorized search of particular apartment in a

building, and cabinet was three to six feet away from entrance to

apartment in small hallway opposite door to apartment, officers

executing search warrant could reasonably suppose cabinet was

appurtenant to apartment).

         Just as in United States v. Bonner, 808 F.2d 864, 868

(1st Cir. 1986), where we held that even though Bonner's "detached

two car garage" had never been mentioned in the description of

places to be searched, it would have been reasonably considered

within the scope of the warrant, the search of the attic at 30

Pekin Street must be reasonably considered part of the area

intended to be searched.

         When one reached the second floor apartment at 30 Pekin

Street, there was a door with a lock (although at the time of the

search, the door was closed but not locked).  The door opened into

a small hallway on the second floor.  In this hallway, about eight

feet across the vestibule from the door to the second floor living

quarters, another set of steps led to the attic.  There was no door

at either the bottom or the top of the steps securing access to the

attic.

         It is clear from the evidence that the attic was not

independent from the second floor living quarters.  Cable

television was supplied to the attic by a cable through a hole in

the floor to the second story.  While three of the rooms in the

attic had either a mattress or a bed, two rooms in the attic were

unfinished and contained sheetrock, tools, dirty floors, and a

metal can of urine.  There was no sink, shower, bathtub, kitchen,

refrigerator, stove, food, or running water in the attic.  While

there was an electric meter for the first floor, and one for the

second floor, there was none for the attic.

         Given that: (1) the attic was open to the second floor,

but not to the street or the first floor apartment; (2) the third

floor was not equipped for independent living; and (3) the occupant

of the third floor had access to the second floor kitchen and

bathroom, the district court's finding that the two floors were all

one apartment, and conclusion that the search warrant for the

second floor apartment included the half story above it is

eminently reasonable and supported by the evidence.

II.  Sentencing

         Ferreras contends that the government failed to prove

that the 101.74 grams of cocaine base seized from the apartment was

in fact crack cocaine.  He complains that the government produced

no evidence as to the water solubility of the cocaine base.  In

light of our opinion in United States v. Martínez, 144 F.3d 189

(1st Cir. 1998), his contentions are meritless.

         In Martínez, we rejected an almost identical challenge.

See id. at 190.  We held squarely that, once the government laid a

proper foundation "by introducing a chemical analysis proving that,

chemically, the contraband was cocaine base," id. at 190 (quoting

United States v. Robinson, 144 F.3d 104, 109 (1st Cir. 1998)

(ellipses omitted), no further scientific evidence was needed.

Instead, the government could bridge the evidentiary gap between

cocaine base and crack cocaine by presenting lay opinion evidence

(or an opinion proffered by an expert who possessed practical as

opposed to academic credentials) from "a reliable witness who

possesses specialized knowledge" (gained by experience in dealing

with crack or familiarity with its appearance and texture).  See

id.; see also Robinson, 144 F.3d at 108-09.  Martínez and Robinson

are controlling here.

         As in Martínez, Ferreras posits that the government

failed to introduce testimony as to the water solubility of the

cocaine base.  That statement is true as far as it goes, but it

does not take Ferreras very far.  Water solubility is of no

assistance in distinguishing among forms of cocaine base.  See

Martínez, 144 F.3d at 190.  As we wrote in Robinson, 144 F.3d at

108-09:  "Chemical analysis cannot distinguish crack from any other

form of cocaine base because crack and all other forms of cocaine

base are identical at the molecular level.  Thus, no further

scientific testimony would have been of any conceivable

assistance . . . ."

         In this case, as in Martínez and Robinson, the government

adduced competent scientific evidence from a chemist to prove that

the 101.74 grams of contraband associated with Ferreras's arrest

was cocaine base.  Given the witness's qualifications, his opinion

constituted competent proof of the fact that the substance was

cocaine base.

         Once the government introduced the chemical testimony, no

additional scientific evidence was needed.  From that point

forward, as in Martínez and Robinson, competent lay testimony, such

as that of Detective Leste, remarking on the substance's

distinctive appearance and texture and identifying it as crack,

completed the final link in the evidentiary chain.  See Martínez,

144 F.3d at 190.

         We need say no more, no less.  In Robinson, we stated

that "[o]n the strength of [such] proof, and in the utter absence

of any controverting evidence," the district court's finding

"easily survive[d] clear-error review."  Robinson, 144 F.3d at 109.

                            CONCLUSION

         For the reasons stated above, we affirm.