United States v. Alvarez , 810 F.2d 879 ( 1987 )

CANBY, Circuit Judge:

Hector Alvarez appeals his conviction for possession of cocaine with intent to distribute and for conspiracy, 21 U.S.C. §§ 841(a)(1), 846. He contends that the district court erred when it denied his motion to suppress certain statements and physical evidence obtained after his war-rantless arrest by federal agents. We agree with Alvarez and reverse the conviction.

BACKGROUND

This case involves a conspiracy to smuggle cocaine into the United States. On January 29, 1983, narcotics officers from an interagency task force were engaged in surveillance of the vessel “Ciudad de Santa Marta,” which had been docked in San Pedro Harbor since its arrival from Colombia the day before. The officers had reliable information that the vessel was carrying a large quantity of cocaine. There was also information that the smugglers were armed with automatic weapons.

At approximately 10 a.m., officers saw a late-model, red Oldsmobile drive to the dock. An individual entered the vehicle, and it left the area. The car returned later in the day. Two persons got out of the vehicle empty-handed and boarded the Ciu-dad de Santa Marta. They were seen leaving the vessel about five minutes later carrying a large cardboard box. They placed the box in the trunk of the automobile and drove away.

A short time later, agents stopped the vehicle and arrested the occupants. A search of the cardboard box revealed approximately 42 pounds of 88-percent pure cocaine. The suspects were taken to the U.S. Customs Service patrol office, where they were interviewed. By 1:30 p.m., one of the suspects had told agents that he was to deliver the cocaine to a person known as “Mauricio,” who was staying in room 316 of the Holiday Inn in Long Beach. The suspect also told officers that a co-conspirator was in a sixth-floor room of the same motel.

Upon receiving this information, the officers in San Pedro contacted the Long Beach office of the Federal Bureau of Investigation to request assistance with arrests at the Holiday Inn. Agent Don Clark of the Long Beach FBI office then called several other agents to help with the arrests, and by 2 p.m. the agents had arrived at the FBI office. As it turns out, that office is only about 30 yards from the Holiday Inn. Nonetheless, the FBI did not begin any surveillance of the suspects’ rooms at the Holiday Inn or of the area generally.

Although a U.S. magistrate is on duty at all times in the Central District of California, nothing in the record indicates that the agents even considered securing an arrest warrant either in person or by telephone, as permitted under Fed.R.Crim.P. 41(c)(2). Agent Clark, however, did call the U.S. Attorney’s office. According to the testimony of the agents, the FBI was seeking the U.S. Attorney’s approval of the anticipated arrest. When an Assistant U.S. Attorney gave his approval, the agents proceeded without warrants across the street to the hotel, arriving there at about 3 p.m.

After stopping at the registration desk to verify the identities of the suspects, agents went to room 618. There, they arrested Leonicio Rodriquez as he was attempting to escape by way of the balcony. A short time later, officers arrived at room 316, where they placed appellant Alvarez, the “Mauricio” previously referred to, under arrest. Officers found incriminating physical evidence, and Alvarez later confessed to his role in the conspiracy.

Before trial, Alvarez moved to suppress the physical evidence and his post-arrest statements as fruits of an unlawful arrest. At the hearing on the matter, the government offered no evidence concerning its failure to seek an arrest warrant, even by telephone. Nonetheless, the district court denied the motion, accepting the government’s contention that exigent circumstances justified the warrantless seizure in this case. With the evidence admitted, Alvarez was convicted on both charges and sentenced to concurrent fifteen-year prison terms plus a special parole term of fifteen years.¹ He is currently in custody.

DISCUSSION

The only issue in this appeal is whether the government sufficiently justified its failure to use a warrant when it arrested Alvarez. We conclude that it did not.

A warrantless arrest in a non-public place is presumptively unreasonable and violative of the fourth amendment. Pay-ton v. New York, 445 U.S. 573, 586-89,100 S.Ct. 1371, 1380-81, 63 L.Ed.2d 639 (1980). There are exceptions to the warrant requirement, the most common of which is the “exigent circumstances” exception, in which we recognize that some situations present a compelling need for instant arrest, and that delay to seek a warrant will endanger life, limb, or overriding law enforcement interests. In these cases, our strong preference for use of a warrant must “give way to an urgent need for immediate action.” United States v. Blake, 632 F.2d 731, 733 (9th Cir.1980).

It must be emphasized, however, that the “exigent circumstances” exception is just that — an exception. Accordingly, we have held that “the government bears a heavy burden of demonstrating that exceptional circumstances justified a departure from the normal procedure of obtaining a warrant.” United States v. Driver, 776 F.2d 807, 810 (9th Cir.1985). The government must produce “specific and articulable facts to justify the finding of exigent circumstances.” Id. Although we review the district court’s finding of facts and determinations of credibility for clear error, a conclusion of exigent circumstances is reviewed de novo. United States v. Good, 780 F.2d 773, 774 (9th Cir.), cert. denied, — U.S. -, 106 S.Ct. 1523, 89 L.Ed.2d 920 (1986); United States v. McConney, 728 F.2d 1195, 1204-05 (9th Cir.) (en banc), cert. denied, 469 U.S. 824,105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

In this case, it is undisputed that between 90 minutes and two hours had elapsed from the time government agents learned where Alvarez was waiting until the time they actually arrested him at that location.² Although some of this time was required to assemble a team to effect the arrests and to brief the agents involved, the government agents found sufficient time to contact the U.S. Attorney’s office and await “approval” for the arrest operation. During the one hour period when they were assembled at the FBI office, the agents made no attempt to secure the Holiday Inn or to monitor the suspect’s movements, despite warnings from the suspects already under arrest that Alvarez would become suspicious if the cocaine were not delivered on time. The agent’s actions in this case were thus fundamentally inconsistent with any true exigency.

But even if, as Judge Lucas found, “time was of the essence” for the agents that day, we could not conclude that the government had satisfied its burden in this case. In United States v. Manfredi, 722 F.2d 519, 522 (9th Cir.1983), we stated that the government’s burden was not satisfied “unless the government demonstrates that a warrant could not have been obtained in time even by telephone under the procedure authorized by Fed.R.Crim.P. 41(c)(2).”³

In Manfredi, we upheld a warrantless entry of a hotel room. Despite our concern over the government’s “[i]nexplicabl[e]” failure to introduce evidence concerning the impracticability of obtaining a warrant by telephone, id. at 523, the facts demonstrated conclusively that time would not have permitted securing a warrant, even by telephone. See id. at 522-23. We accordingly upheld the police action.

As in Manfredi, the government here offered no evidence concerning its failure to seek a telephone warrant.⁴ Here, however, we cannot excuse the government’s failure. The agents had a minimum of 90 minutes and sufficient time to discuss the case fully with personnel of the U.S. Attorney’s office; we cannot say conclusively that the agents or the Assistant U.S. Attorney could not have complied with Rule 41(c)(2).⁵ See United States v. McEachin, 670 F.2d 1139, 1147 (D.C.Cir.1981).

The government argues that obtaining a telephone warrant is not an easy task, and it points to our decision in United States v. Good, 780 F.2d at 775. But our decision here does not invariably require the government to have a telephone warrant before it moves in on a dangerous suspect. It simply requires the government either to attempt, in good faith, to secure a warrant⁶ or to present evidence explaining why a telephone warrant was unavailable or impractical. Id.

The telephone warrant requirement is no mere formality. As the Supreme Court has recognized, warrants interpose a neutral and detached magistrate between law enforcement officials and targets of searches and seizures before a search or seizure has occurred. E.g., United States v. Leon, 468 U.S. 897, 913-14, 104 S.Ct. 3405, 3416-17, 82 L.Ed.2d 677 (1984). They are fundamental to the fourth amendment’s protection of individual privacy. “An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.” Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964).⁷ Congress, by enacting Rule 41(c)(2), has stated its strong preference for the use of warrants as well. Indeed, when warrants are used, a defendant’s ability to challenge a search or seizure is severely limited; we accord great deference to a magistrate’s advance determination that probable cause supports a search or arrest. E.g., Leon, 468 U.S. at 914, 104 5. Ct. at 3417; see also Fed.R.Crim.P. 41(c)(2)(G) (precluding, in most cases, motions to suppress based on alleged misuse of telephone warrant procedure).

In cases where exigent circumstances truly exist, we recognize that the usual fourth amendment protection must give way. But because of the danger that exceptions pose for fourth amendment guarantees, we are most unwilling to excuse the government’s failure to seek a warrant in cases where no necessity for “immediate action” can be demonstrated. See United States v. Blake, 632 F.2d 731, 733 (9th Cir.1980).

We are even less willing to ratify the government’s action where, as here, there has been not the slightest effort to comply with a clear, concise rule such as Rule 41(c)(2). Rule 41(c)(2) was designed to accommodate the needs of law enforcement while ensuring the preservation of constitutional rights. See Advisory Committee and Historical Notes to Fed.R.Crim.P. 41 (1977 Amendment); see also McEachin, 670 F.2d at 1146-48 (reviewing legislative history). The action of the agents and the Assistant United States Attorney in ignoring the telephone warrant procedure totally frustrates the accommodation approved by Congress. It cannot be sanctioned by us. The arrest of Alvarez was unlawful.

Although an illegal arrest does not void a subsequent conviction, United States v. Studley, 783 F.2d 934, 937 (9th Cir.1986), physical evidence and statements obtained as a .result of such an arrest must be suppressed. E.g., Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963); see also United States v. Crews, 445 U.S. 463, 470, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537 (1980). As a result, Alvarez’s post-arrest statements as well as physical evidence seized from his hotel room should have been suppressed. The district court erred when it ruled otherwise.

Because this important evidence⁸ should have been suppressed, we are forced to reverse the conviction and remand the cause for a new trial.⁹ We recognize the serious consequences of reversal. They may be avoided in the future if law enforcement authorities will attempt in good faith to follow the procedures approved by Congress for the purpose of ensuring compliance with the fourth amendment.

REVERSED AND REMANDED.

1 . Because Alvarez’s trial was severed from that of his co-conspirators, his is the only conviction now before us. We dealt with the appeals of four of Alvarez’s co-defendants in United States v. Alfonso, 759 F.2d 728 (9th Cir.1985). The fourth amendment issue before us now was not raised by the appellants in Alfonso.

2 . In stating that the time interval is undisputed, we mean that it is undisputed by the parties; the dissent disputes it. The dissenting opinion proceeds on the assumption that the trial court made no findings regarding the time interval. In making its findings of exigent circumstances at the conclusion of the suppression hearing, however, the trial court found that, after the arrest of Torres, the agents learned of Mauricio and his location at 1:30, and that the later arrests at the Holiday Inn occurred, as the trial judge understood it, "sometime between 3:00 and 3:30." Suppression hearing transcript, pp. 345-46.

Even if we felt free, as we do not, to sift through the record and make new findings, resolving conflicts in the testimony, we would not arrive at the same findings that the dissent has. The record shows the following evidence regarding the times in dispute:

Arrest of Bramlett & Torres (First two suspects)

1. Sometime after 1:00 p.m., when agents began to follow red Oldsmobile. (McCauley trial testimony, TR 88-89).

2. Twelve noon. (Hale motion testimony; suppression TR 277).

3. Prior to or approximately 1:30 (Baird trial testimony, including testimony that she debriefed Torres at about 1:30. TR 95-96).

4. Two p.m. (Hale declaration, attached to Gov’t Opposition to motion to suppress). Interrogation of Bramlett & Torres

1. Approximately 1:30 p.m., lasting 10-30 minutes. (Baird trial testimony, TR 95-96, 100).

2. At 1:30 or 1:45. (Madden motion testimony; suppression TR 324).

3. Agents learned where Alvarez was at 1:30 p.m. (Hansen declaration, attached to Gov’t Opposition to Motion to Suppress).

4. Agents learned where Alvarez was at 2:00. (Hale declaration, attached to Gov’t Opposition to Motion to Suppress).

Arrest of Alvarez at Holiday Inn

1. 3:00 p.m. (Gallagher declaration, attached to Gov’t Opposition to Motion to Suppress).

2. 3:00 p.m. (Breen declaration, attached to Gov’t Opposition to Motion to Suppress).

3. 2:30 p.m. (Alvarez’ trial testimony; TR 202).

This evidence supports the view of the trial judge, the defendant, and the government that at least 90 minutes passed from the time the agents learned of Alvarez’ location until his arrest.

3 . Fed.R.Crim.P. 41(c)(2) provides:

Warrant upon Oral Testimony

(A) General Rule. If the circumstances make it reasonable to dispense with a written affidavit, a Federal magistrate may issue a warrant based upon sworn oral testimony communicated by telephone or other appropriate means.

(B) Application. The person who is requesting the warrant shall prepare a document to be known as a duplicate original warrant and shall read such a duplicate original warrant, verbatim, to the Federal magistrate. The Federal magistrate shall enter, verbatim, what is so read to such magistrate on a document to be known as the original warrant. The Federal magistrate may direct that the warrant be modified.

(C) Issuance. If the Federal magistrate is satisfied that the circumstances are such as to make it reasonable to dispense with a written affidavit and that grounds for the application exist or that there is probable cause to believe that they exist, the Federal magistrate shall order the issuance of a warrant by directing the person requesting the warrant to sign the Federal magistrate’s name on the duplicate original warrant. The Federal magistrate shall immediately sign the original warrant and enter on the face of the original warrant the exact time when the warrant was ordered to be issued. The finding of probable cause for a warrant upon oral testimony may be based on the same kind of evidence as is sufficient for a warrant upon affidavit.

(D) Recording and Certification of Testimony. When a caller informs the Federal magistrate that the purpose of the call is to request a warrant, the Federal magistrate shall immediately place under oath each person whose testimony forms a basis of the application and each person applying for that warrant. If a voice recording device is available, the Federal magistrate shall record by means of such device all of the call after the caller informs the Federal magistrate that the purpose of the all is to request a warrant. Otherwise a stenographic or longhand verbatim record shall be made. If a voice recording device is used or a stenographic record made, the Federal magistrate shall have the record transcribed, shall certify the accuracy of the transcription and shall file a copy of the original record and the transcription with the court. If a longhand verbatim record is made, the Federal magistrate shall file a signed copy with the court.

(E) Contents. The contents of a warrant upon oral testimony shall be the same as the contents of a warrant upon affidavit.

(F) Additional Rule for Execution. The person who executes the warrant shall enter the exact time of execution on the face of the duplicate original warrant.

(G) Motion to Suppress Precluded. Absent a finding of bad faith, evidence obtained pursuant to a warrant issued under this paragraph is not subject to a motion to suppress on the ground that the circumstances were not such as to make it reasonable to dispense with a written affidavit.

4 . We recognize that the arrest in this case occurred before we announced our decision in Manfredi Nonetheless, Fed.R.Crim.P. 41(c)(2) has been in force since October 1977. To date, it apparently remains a largely ignored provision, at least according to representations of the U.S. Attorney at oral argument in this case. Counsel could not answer our questions concerning the government’s experience with telephone warrants apparently because the procedure outlined in Rule 41(c)(2) is simply not used in the Central District of California.

5 . We reiterated our concern over the apparent refusal of law enforcement officers to utilize a telephone warrant procedure in United States v. Wuiferdinger, 782 F.2d 1473, 1476-77 (9th Cir. 1986). In that case, officers failed to employ California’s telephone warrant procedure, outlined in Cal. Penal Code § 1526(b) (West 1982). Again in that case, we concluded that "the exigency was extreme enough” to excuse the government’s failure to secure the telephone warrant. Wuiferdinger, 782 F.2d at 1477. We did not, as the government asserts, hold that one hour (or any other specific amount of time) was per se insufficient to secure a telephone warrant. In fact, the police in Wuiferdinger had considerably less than an hour to act. Further, evidence in the record showed a clear need for immediate police action, and officers responded right away. Moreover, we pointed out that officers would have had "to locate a magistrate and a court reporter late at night to hear and record the officer’s sworn statement____’’ Id. In light of the totality of the circumstances, we concluded that “ 'the time required, however short, was not available.’” Id. (quoting United States v. Manfredi, 722 F.2d 519, 523 (9th Cir.1983)).

6 . The requirement that the government attempt, in good-faith, to secure a warrant should dispose of government concerns that magistrates are not always available to approve warrant applications, even by telephone.

7 . As the Supreme Court recently reiterated in Leon:

"[G]ood faith on the part of the arresting officers is not enough.” Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers, and effects," only in the discretion of the police.

Leon, 468 U.S. at 915 n. 13, 104 S.Ct. at 3417 n. 13 (quoting Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 229, 13 L.Ed.2d 142 (1964)).

8 . The government does not, and could not, contend that the fourth amendment violation here was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

9 . The dissenting opinion undertakes to show, by a review of federal appellate cases, that there are great uncertainties and inconsistencies in the application of the exclusionary rule. If the point of this discussion, and of the detailed description of the defendant’s criminal activity, is that the disputed evidence in this case was properly admitted even if the arrest violated the fourth amendment, we reject that surprising and unsupported suggestion.

It is true that in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court held that exclusion need not follow every violation of the fourth amendment. The issue in Leon, however, was whether it was proper to use evidence obtained by officers in good faith reliance upon a warrant, and the Court’s ruling was based to a substantial extent on a preference for reliance on warrants rather than on the officers’ own hasty judgments. Id. at 913-14, 104 S.Ct. at 3416-17. Leon made it clear that there will be occasions for the legitimate application of the exclusionary rule even when a warrant was obtained. Id. at 922-23, 104 S.Ct. at 3421-22. Surely when the arrest or search is effected without a warrant and violates the fourth amendment, evidence directly resulting from the arrest or search should be suppressed at trial, and the requirement of suppression should be enforced on direct appeal of a conviction. To create an exception to the exclusionary rule based, as the dissent hints that it should be, on the seriousness of the crime or the reprehensibility of the defendant’s conduct, would be to obliterate the rule. Such a result is consistent with neither the holding nor the language of Leon, nor is it supported by any other authority of which we are aware.