United States v. Rivera, Alfonso, Jr. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3851
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALFONSO RIVERA, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western
Division.
No. 99 CR 50001--Philip G. Reinhard, Judge.
Argued February 28, 2001--Decided April 24,
2001
Before HARLINGTON WOOD, JR., KANNE, and
ROVNER, Circuit Judges.
ROVNER, Circuit Judge. The defendant,
Alfonso Rivera, Jr., entered a
conditional guilty plea to one count of
conspiring to possess with intent to
distribute in excess of 650 kilograms of
marijuana. In his plea agreement, he
reserved the right to appeal the district
court’s denial of his motion to suppress
evidence seized from his residence by law
enforcement officers. At sentencing, the
court applied a two-level enhancement for
use of a minor to commit a crime, USSG
sec. 3B1.4, and ultimately sentenced him
to 188 months imprisonment. He now
appeals the court’s denial of his motion
to suppress and its application of sec.
3B1.4.
The facts surrounding the seizure of the
evidence on Dec. 28, 1998, at Rivera’s
residence are dispositive of the fourth
amendment challenge, so we will recount
them in some detail. On December 4, 1998,
the Rockford office of the Drug
Enforcement Administration (DEA) and the
Rockford Police/Winnebago County Sheriff
Metro Narcotics Unit ("Metro") received
information from DEA agents in Washington
D.C. concerning shipments of marijuana
being transported to Rockford. The D.C.
agents informed the Rockford agents that
they were conducting an investigation
involving a factory, Asesoria
Especializada, in Laredo, Texas, that was
using trucking and freight companies to
ship marijuana within the United States.
Those shipments were labeled as candles.
The D.C. agents indicated that such a
shipment had just been sent via Roadway
Express Trucking Company to Rockford, and
that a previous shipment had been sent in
October in the same manner.
In response to that report, a DEA agent
and a Metro detective went to the Roadway
facility in Rockford that same day and
were informed that a shipment from Laredo
was picked up by four males two days
earlier. The shipping invoices listed a
shipment of 2,340 pounds of candles from
the factory, bound for Angel’s Gift Shop
in Rockford, which was paid for with
three traveler’s checks. A review of the
shipping invoice for October revealed a
shipment of 890 pounds of candles to the
same destination. The Roadway employee
agreed to contact them if any similar
shipments arrived.
On December 28, 1998, the Roadway
facility contacted the DEA in Rockford
and advised them that another shipment
had arrived and was scheduled for pickup
later that day. The shipment had the same
source and destination, and consisted of
5 skids of boxes purportedly containing
3,900 pounds of candles. A police dog
conducted a sniff search and alerted to
the presence of controlled substances at
the boxes. The agents then set up
surveillance to await the pickup.
At 3:00 that afternoon, a brown van
marked "Miriam’s Cleaning Service" and
towing a trailer arrived at the Roadway
facility, and two males loaded the
shipment into it. At that time, officers
also observed two males in a red Cadillac
near the facility, who appeared to be
conducting counter-surveillance while the
shipment was loaded. When the van exited
the Roadway facility, the Cadillac
followed, and at one point, the two cars
stopped and one of the men relocated from
the van to the Cadillac. At approximately
3:49, the van and trailer parked at
Rivera’s residence, and he and others,
including his minor son, unloaded the
boxes into the house.
While agents and officers continued
their surveillance of the residence, a
detective began preparing an affidavit
and application for a search warrant
based on the information obtained thus
far. Soon thereafter, beginning around
4:00, vehicles began arriving at the
residence with frequent regularity.
Between 4:02 and 4:32, vehicles arrived
at the residence every 1-6 minutes, a
total of ten times involving nine
different vehicles within that half-hour
time period. In nearly every case, the
driver of the vehicle entered the home
and 3-4 minutes later exited carrying a
package and drove away. The law
enforcement officers lacked the resources
to stop these vehicles after they left,
but maintained surveillance of the
residence. One of the cars that arrived
during that time was a maroon Toyota. The
occupants left with a package at 4:22,
but the vehicle returned to the residence
at 4:32. None of the other cars had
returned to the residence after leaving.
One of the officers conducting
surveillance from a vehicle a few blocks
away reported by police radio that the
maroon Toyota sighted by others at the
residence drove by his location and then
performed a U-turn in front of his
vehicle and drove past him again.
At approximately 4:20 or 4:30, Captain
McMahon, who was conducting surveillance
and monitoring the radio communications,
contacted a Winnebago County Assistant
State’s Attorney and advised him of the
problems they were facing. McMahon
believed that the activity at the
residence indicated that the drugs were
being picked up by various individuals.
He further was concerned because it was
getting dark, and traffic was increasing
as people were leaving work. Finally, he
feared that if the drivers of the
vehicles became aware of the
surveillance, they would call back to the
residence and alert those inside. The
district court noted that the actions of
the maroon Toyota in circling back past
the officer and in returning to the
residence provided some support for alarm
that the surveillance may have been
spotted. The ASA advised Captain McMahon
to proceed to secure the residence.
The officers then approached the
residence, knocking and announcing their
presence. Several individuals fled from
the residence but were apprehended. The
officers forcibly entered the residence,
conducted a sweep search for security
purposes, and detained the occupants in
the living room until the warrant was
issued. The security sweep lasted for
only 45-60 seconds, and no information
obtained in the sweep was used to secure
the search warrant. Once the warrant was
issued at approximately 6:15, the
officers conducted a search of the
premises and seized the evidence at issue
here, including: open and intact bales of
marijuana, scales, cutting instruments,
drug ledgers, a garbage bag containing
$124,000 in cash, an SKS assault rifle,
and boxes containing candles and
marijuana. The total amount of marijuana
involved was approximately 1400 pounds.
I.
The district court ruled that the
evidence was admissible, holding that the
initial warrantless entry into the house
was justified by exigent circumstances,
and that even if it had not been, the
evidence was admissible under the
independent source doctrine because the
warrant was obtained independent of the
initial entry. We need not reach the
issue of whether the evidence was
admissible under the independent source
doctrine, because we agree that the
fourth amendment was not violated by the
officers’ initial entry into the
residence.
The "’physical entry of the home is the
chief evil against which the wording of
the Fourth Amendment is directed,’" and
accordingly, warrantless entries are
considered presumptively unreasonable.
Payton v. New York, 445 U.S. 573, 585-86
(1980), quoting United States v. United
States District Court, 407 U.S. 297, 313
(1972); United States v. Saadeh, 61 F.3d
510, 516 (7th Cir. 1995). Such searches
are constitutionally permissible,
however, where there is probable cause
and exigent circumstances create a
compelling need for official action and
insufficient time to secure a warrant.
United States v. Marshall, 157 F.3d 477,
481-82 (7th Cir. 1998). The government
has the burden of proving that its
officers had an objectively reasonable
basis for believing such exigent
circumstances existed at the time of the
warrantless entry. Id. at 482. Exigent
circumstances have been found where
officers had an objectively reasonable
fear that evidence was about to be
destroyed or removed. Id.; Mincey v.
Arizona, 437 U.S. 385, 394 (1978). The
relevant focus is whether the facts, as
they appeared at the moment of entry,
would lead a reasonable, experienced
agent to believe that evidence might be
destroyed or removed before a warrant
could be secured. Marshall, 157 F.3d at
482.
Rivera does not dispute that the
officers possessed probable cause in this
case, and argues only that there were no
exigent circumstances. He asserts that
the officers believed this to be a very
large shipment of marijuana based on the
weight of the shipment, 3300 pounds, and
the information that the shipment
contained marijuana rather than another
drug. The packages being removed from the
residence, however, could not have
contained more than three or four pounds
each. Therefore, Rivera argues that only
a small portion of the evidence was being
removed and that does not constitute
exigent circumstances. As support for
this argument, Rivera points to the
failure of the officers to stop the
vehicles that were leaving the residence,
which he argues would have been done if
they believed a substantial portion of
the evidence was being lost.
Essentially, Rivera asks us to adopt a
rule that exigent circumstances do not
exist until a substantial portion of the
evidence is in danger of being removed or
destroyed. We decline that invitation.
First, it is a completely unworkable
standard. In determining whether exigent
circumstances exist, we analyze the
situation from the perspective of the
officers at the scene, id., and it is
virtually impossible for officers to make
the type of proportionality analysis
recommended by Rivera. Officers should
not have to engage in a guessing game as
to how much evidence has been removed and
how much remains, before they can bring
the depletion to a halt. Moreover, even
the destruction or removal of a
relatively small amount of evidence can
have significant consequences at
sentencing, where the drug quantity
impacts the sentence. The exigent
circumstances exception to the warrant
requirement prevents officers from
invading the privacy of the home except
in unusual circumstances, and we are
disinclined to handcuff the ability of
officers to prevent the imminent loss of
evidence in a circumstance such as this
one, where probable cause is unquestioned
and the warrant is being sought in a
timely and good-faith manner.
We are not here presented with the
situation in which a de minimis amount of
evidence is being removed, and the
officers immediately enter the premises
based on that flimsy justification. The
officers here were presented with a
veritable parade of cars, each departing
with what the officers presumed to be the
illegal narcotics. There is no question
that the officers were legitimately faced
with the removal of contraband from the
residence while awaiting the warrant. If
we were to define exigent circumstances
as requiring that a certain quantum of
evidence is in danger of destruction or
removal--a magic number that must be
reached before they can end the
depletion--we would be imposing an
unworkable standard on law enforcement
officers who must make quick decisions at
the site. That is not required by the
Fourth Amendment, which by prohibiting
only "unreasonable" searches and seizures
necessarily recognizes that a balance
must be maintained between the needs of
law enforcement and the right to privacy.
Rivera’s interpretation of exigent
circumstances would severely undermine
the ability of law enforcement officers
to prevent the imminent destruction or
removal of evidence, and would upset that
balance. Accordingly, the district court
properly granted the motion to suppress.
II.
Rivera also questions the district
court’s imposition of a two-level
enhancement under sec. 3B1.4 for his use
of a minor in the offense. The basis for
that enhancement was the use of Rivera’s
son, Alfonso Rivera III, in unloading the
marijuana from the van, weighing
quantities of marijuana in the residence,
and retrieving money to pay the co-
conspirators. Pursuant to sec. 3B1.4, a
two-level enhancement is appropriate if
"the defendant used or attempted to use a
person less than eighteen years of age to
commit the offense." U.S.S.G. sec. 3B1.4.
Application Note 1 to that section
explains that "used or attempted to use"
includes "directing, commanding,
encouraging, intimidating, counseling,
training, procuring, recruiting, or
soliciting." In United States v. Ramsey,
237 F.3d 853, 859 (7th Cir. 2001), we
noted that in accordance with the
definition found in the Application Note,
the language of sec. 3B1.4 should be
construed fairly broadly. We further held
that, in considering an enhancement under
sec. 3B1.4, the relevant inquiry is
whether the defendant took affirmative
acts to involve the minor in the
commission of the offense. Id. at 860.
The facts in this case, as properly
found by the district court, support
imposition of the enhancement under that
standard. Rivera concedes that his son
participated in unloading the marijuana
from the van to the residence. In
addition, two participants in the
conspiracy testified that the son engaged
in other actions related to the offense
at Rivera’s direction. Sergio Galvan
testified that Rivera sent his son
upstairs to retrieve $2000 from a garbage
bag in the bedroom, which he used to pay
a co-conspirator for the work. Galvan
further testified that Rivera asked him
to weigh marijuana, and that while he was
doing so Rivera’s son joined him and
helped in the weighing and packaging. The
other testimony came from Francisco
Uresti, who asserted that he heard Rivera
ask his son to help them move the boxes
containing marijuana.
Rivera’s sole contention on appeal is
that he took no affirmative act to
involve his son in the commission of the
offense. Essentially, Rivera argues that
any actions by his son, such as unloading
the marijuana from the van, were done on
his son’s own initiative, and were not
done at his "direction" or with his
"encouragement." That assertion is belied
by the testimony of Galvan and Uresti,
which the district court credited. Rivera
argues that the court should not have
credited their testimony, because it was
obtained pursuant to incentives in their
plea agreement, and because it contained
inconsistencies. The district court,
however, recognized the shortcomings in
their testimony, but also noted that
their claims were bolstered in part by
the son’s actions in helping to unload
the van in his father’s presence. The
court noted that if Rivera did not want
his son aiding in the offense, he could
have told him to stop. His failure to do
so thus provided some corroboration for
the witness’ testimony that he sought his
son’s help. Rivera has failed to
demonstrate that the court’s credibility
determination was erroneous. That
testimony is sufficient to support the
sec. 3B1.4 enhancement.
For the above reasons, the decision of
the district court is
AFFIRMED.