United States v. Joel Torres Salas, United States of America v. Vincente Flores Munoz

free from the substantial influence of that

misconduct. Bank Scotia, Nova S.Ct. at 2374.

III. CONCLUSION government’s conduct in this case placed

“has jeopardy the integrity of the justice system.”

criminal Samango, 607

F.2d at 884. To allow the indictment

against Spillone to stand in these circum-

stances makes a mockery of the Fifth grand jury

Amendment’s requirement.

UNITED America, STATES

Plaintiff-Appellee, SALAS,

Joel Torres

Defendant-Appellant.

UNITED America, STATES of

Plaintiff-Appellee, MUNOZ,

Vincente Flores

Defendant-Appellant. 88-3221,

Nos. 88-3228.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 1989.

Decided June suppress intro-

their motions guilt. the issue Each at trial duced possessing more than guilty of was found with intent grams of cocaine five hundred pur- seized evidence was distribute. The Munoz and warrants. to two search suant the first warrant contend that search on the it was issued invalid because result of as the of facts obtained basis Mu- and seizures. unreasonable searches validity the second challenges the noz it issued ground on the warrant during upon evidence seized reliance con- first of the warrant. execution was valid that each search warrant clude and affirm. first warrant validity the offi- upon whether

depends primarily conducting pat- justified in cers were Terry in connection with down the facts recitation of stop. A detailed prior to known to this necessary question. resolve I FACTS PERTINENT govern- by the presented The evidence sup- hearing on the motion ment at following facts: press disclosed Reports A. Citizen Informants’ Christopher A. Hurst Detective Robbins, Ruark, Breskin & P. Michael Department testified Tukwila Police Wash., defendant-appellant, Seattle, for eight years. officer for police he had been Torres Salas. Joel investigated nar- he had During that time Hines, Public Asst. Federal T. William time the At the since 1982. cotics cases Wash., defendant-ap- Seattle, Defender, for occurred, he was matter searches Flores Munoz. Vincente pellant, County Narcot- King assigned to the South Task Force. Seattle, ics Diskin, Atty., Asst. U.S. Jerry Wash., plaintiff-appellee. Police 22, 1988, the Renton February On King Coun- the South

Department advised maid at Force that Task ty Narcotics Valley Road East at 3700 Nendel’s cocaine and she seen reported that “packaging materials” marijuana and ALARCON, FERGUSON Before cleaning Room while occasions several Judges. THOMPSON, Circuit date, Hurst On the same ALARCON, Judge: Circuit the Ren- Lee Milosovich Kevin to Nendel’s went Department ton Police (Munoz) Torres and Joel Vincente motel report. The investigate this denying Motel (Salas) from order appeal manager informed the officers that two She stated she had used marijuana and Spanish or Mexican men staying in recognized it when she saw it and smelled Room 227. reported She that a black it. Corvette, license AHN, number 102 The second maid also saw ziplock plastic was associated with the men in Room 227. bags and a suitcase Room 227 covered Detective Hurst checked the license num- awith comforter. thought She that it was ber the car with Department unusual to hide luggage in this manner. Licensing. The registered Corvette was presented Detective Hurst these facts Munoz. Vincente prosecutor a county in order to obtain a After interviewing the manager, motel search warrant. The prosecutor advised kept officers Room 227 under surveil- him that he should continue his surveil- period lance a of time. They did not lance for additional information because observe activity involving Room the maids had removed narcotics the. when

the Corvette. they cleaned the room and their informa- The following morning, Detective Hurst tion was stale. a interviewed maid who worked at the mo- tel. reported She that she had cleaned B. Independent Observations 227 on February 1988. On Room date, she observed a balance scale that was 1. Evasive Action about one length, foot in a sandwich-size Detective Hurst and Milosovichreturned package of baggies, and a baking box of to Nendel’s p.m. 8:30 on February soda. 23,1988. They observed the 1974 Corvette Detective Hurst testified that sandwich- in the parking lot. They obtained a key to size baggies are used for the packaging of Room 225. On their way to they that room cocaine. Baking soda is used the pro- saw Munoz and Salas enter the Corvette duction of rock or crack cocaine. and drive off. The officers followed in The maid saw large a amount their vehicle. powder white she identified as cocaine. The Corvette on north State traveled She had previously seen on numer- Route 169 until reached the Interstate ous occasions parties. She also ob- 405 exit. As the officers followed Munoz served burnt material that she identified exit, into Salas pulled the Corvette marijuana. She recognized the substance over to the side halfway up the cloverleaf. as being marijuana appear- because its The officers past continued on the Corvette ance and smell based on her experience as to avoid revealing to Munoz and Salas a user of this contraband. they were being followed. The officers She large also saw a quantity of new drove through the entire posi- cloverleaf to clothing still affixed tags. with store De- tion themselves behind the Corvette. They tective Hurst testified that new clothing is caught up with the Corvette near an exit in bartered for narcotics. Seattle. Detective Hurst next interviewed a sec- Detective Hurst testified stopping ond maid. She stated she had seen narcot- the Corvette on the cloverleaf good awas ics separate three days, driving evasive tactic to determine whether most recently on February 1988. She someone is following you. If person saw approximately two hundred and fifty being followed the police, the officers dollars’ worth of five-and-ten dollar bills. must continue on or be discovered. If the She also informed Detective Hurst that she officers on, continue they must travel the powder saw white top the television entire cloverleaf to up. catch set. It scooped together in short lines. She described this substance as similar to 2. Apparent Delivery Narcotics cocaine she had seen people other Ap- use. proximately two weeks before the inter- The Corvette was driven to an address view, she had marijuana seen in Room 227. near 19th and Ferdinand. The Corvette ignition into the key appeared to insert Munoz residence. front of stopped in switch. drove to The the car. left Salas This ma- around. turned Almy street and Sergeant side Milosovichand Detective officers then one minute. took their neuver the vehicle approached residence. leaving the Salas themselves as identifying After saw drawn. step officers, ordered Salas was police Corvette followed The officers was asked out of Corvette. one of signal, traffic At a residence. respond. Ser- He did not identify himself. at the car waved the individuals if he was armed. geant asked discontin- The surveillance officers. Sergeant not. he replied that Hurst was con- because ued going to he was Almy advised Salas had been surveillance their vinced that suspect armed. see he was check to compromised. put his hands 45-degree angle, to a turned that the fact Hurst concluded his head. fingers behind up locked his stopped at a and Salas Munoz that him down. Sa- patted Sergeant Almy then consistent minute was for one residence warm-up suit two-piece a wearing las was narcotics. delivery of awith with jacket a consisting pants and of sweat their office returned to The detectives down, Sergeant During pat the pockets. Shel- Robert Sergeant conferred the lump and near bulge and a a Almay felt Depart- Police Auburn the Almy of Almy don be- Sergeant pocket. right jacket driving and the evasive the about of a might ment the butt bulge be that the lieved The officers Instead, delivery of narcotics. possible waistband. gun in hand Salas’ Motel and to Nendel’s containing return baggie to decided a Almy found Sergeant they re- Salas when Munoz and question cocaine. grams of rock turned. 227. Entry into Room 4. Search Pat-Down

3. The Hurst noted Munoz Detective When lot, moved parking Salas the not in Nendel’s arrived When place a where from the Corvette away Sa- and that Munoz Motel, they discovered De- from Room 227. seen not be he could Hurst Detective already arrived. las had anyone else Hurst asked tective Milosovich Detective to Room 225. went one that no stated Room 227. was in parking the in Almy waited Sergeant and room. inwas the else Detective agreed that officers lot. The Milosovich next Detective their radio about conferred Hurst would The officers and Munoz when if Salas did Hurst Sergeant They concluded and move. it destroy They determined shortly, room. Munoz left the return would in suspects aware They were contact the safer to room. would be in take interviewing them would obtaining than search warrant open rather a the go to decided to heard two Hurst officers Detective room. hours. . their three the Spanish in Room Munoz .so remove speaking in 227 and persons Room search war- 10:30 while time, approximately be secure a short room would After the open sound the and was obtained. heard door rant p.m., he hallway. De- going down footsteps of motel from the obtained key passA inform radio to used Hurst tective to Room door opened the manager. They suspects officers fellow identifying knocking or first 227 without way. their room smok- was in themselves. co- observed Hurst ing to 30 seconds cocaine. Hurst waited plain narcotics paraphernalia suspects, and then caine run into so as not arrest placed under Munoz was view. lot. parking proceeded hallway. to the moved Room 227. fact, Munoz did leave Sergeant evening, while That same and entered parking lot Salas went entry, preclude 227 to wheel, outside Room stood Corvette, sat behind applied Detective Hurst for a search war- and the evidence seized in Room affidavit, rant. In the Detective Hurst set 227. Each motion was denied. forth the information he received from the manager motel and the maids concerning II presence cocaine packaging materials used in that substance ISSUES ON APPEAL recently Saturday sale as February Before we set forth our discussion on the 20, 1988. The affidavit also related his presented issues appeal, we note independent concerning observations parties that the made certain concessions driving Corvette’s evasive maneuvers and that narrow our review of the conduct of discovery baggie the officers in this matter. addition, Salas. Salas concedes that the alleged

Detective Hurst in his affidavit known to the entering asking that after Room 227 him to means of step out of pass the 1974 key, he “noted a Corvette established quantity white powder suspicion “reasonable substance was counter as believe that crimi- drug activity well as nal other related items.” Detec- occurred” in Room 227 tive Hurst justify described items he sufficient to observed his detention. Brief of in plain view “cocaine, baggies, Appellant as follows: pg. 4. Salas, Pursuant soda, baking drug-related and other items.” standard set forth Ohio, in Terry v. After reviewing Detective Hurst’s affida- U.S. 88 S.Ct. (1968), 20 L.Ed.2d 889 vit, magistrate of the Renton District the district court concluded that “the offi- Court for King County issued a warrant cers’ initial warrantless of Room 227 for the search of Room 227 and the 1974 justified was not by exigent circumstanc- Corvette. warrant, Armed with the search es.” govémment The has advised this Detective Hurst returned to Nendel’s Motel court that it does dispute “not the District at approximately 1:30 a.m. to conduct a finding Court’s that the initial into search of Room 227. A search of a suit- Room 227 was unlawful.” Appel- Brief for case large disclosed a quantity of cocaine. lee, page 22. accept We these concessions Part of the cocaine in a brick form. It but express opinion no respecting legal- the appeared weighed to have about a kilo be- ity of these events. part fore of it was removed. Detective Salas seeks reversal of the denying order Hurst also a found number of one-ounce his suppress motion on grounds: two and half-ounce packages of cocaine. Pack- One. The officers did not have knowl- aging including material tin foil plastic edge of prior sufficient facts to conducting bags were addition, In found. Detec- pat-down the search support a reason- tive key Hurst found a to Room 27 of the able might belief that he be armed or dan- Aero Motel. gerous. The Aero is located at 7240 East Two. Because the Marginal Way, sup- affidavit filed in South Seattle. After this port of the warrant key discovered, for the search of Room Milosovich 227 based obtained a warrant to search information obtained Room 27 of Aero A result a Motel. search of illegal entry, all that location produced seized pornographic photo- cocaine and therein was tainted and graphs. inadmissible.

Following indictment, arrest and also challenges validity Mu- noz filed a suppress motion to “all warrant for the evi- search of Room 227 at dence” seized from Room 227 of Nendel’s Motel product Nendel’s as the an Motel and 27 entry. addition, Room Aero Motel. argues he that the in- suppress moved to the cocaine discov- formation during obtained the search of ered during pat down that occurred 227 was improperly upon relied prior to his arrest in the parking Magistrate lot in issuing a warrant for Nendel’s Motel p.m. at 10:30 February search of Room 27 of the Aero Motel.

535 227 occupants of Room used cocaine. III evening Munoz earlier that Salas and DISCUSSION evasively way on their the Corvette driven appeared delivery a detention legality of to what be narcot review the We to infer from and without ics. It was independently reasonable pat-down received from the citizen infor legal conclusions deference Thomas, personal officers’ observa v. mants and the United States court. district (9th Cir.1988); narcotics dealer. tions that Salas was a 678, 2n. 680 & 844 F.2d 847, Post, 366, 607 F.2d 851 United States v. 735 F.2d Maybusher, v. United States Cir.1979), (9th is not denied, we held Cir.1984), (9th “[i]t cert. 371 n. 1 that a dealer in to assume unreasonable 790, 83 L.Ed.2d 783 1110, 105 S.Ct. U.S. might be armed.” It was also narcotics “findings of fact made (1985). uphold We suspect officers to reasonable for the clearly hearing ... unless suppression aat dangerous if he had might be recent Limatoc, v. States erroneous.” . ly used cocaine Cir.1987). (9th deter 807 F.2d suspi founded was a there mine whether down, pat been Prior to on a total search based cion for seated in the Corvette. v. United States ity of the circumstances. “investigative recognized has Court Cir.1988) Thomas, . F.2d 678-81 invoking suspects in vehicles detentions are danger to especially fraught with police Search A. The Pat-Down Michigan Long, U.S. officers.” 77 L.Ed.2d 1201 103 S.Ct. may conduct enforcement Law (1983). weapon concealed A can be under limited de- readily accessi of a It is seat vehicle. Ohio, by Terry authorized tention any police to harm officer to be used ble L.Ed.2d 889. U.S. especially at approaches an automobile who absolutely cer- need not be officer hand movement to a p.m., when a 10:30 armed; the individual tain night’s by the may weapon be masked reasonably prudent is whether issue shadows. would be war- in the circumstances man safety or his in the belief that that ranted found Salas’ The district court in danger. And weapon. was in of others conceal a This warm-up that suit could Sergeant officer acted determining whether clearly the erroneous. finding is not circumstances, due reasonably in such to the outer his sur Almy confined his inchoate given, clothing. to he felt a weight must be not Once faces of Salas’ “hunch,” or the butt of unparticularized suspicion could be object he believed hard inferences specific grounds reasonable to handgun, he reasonable but had from the entitled draw jacket he is to to remove the which inside Salas’ reach experience. 29-30, light Ohio, in of 392 U.S. at object. Terry facts v. 1883-84; also United at See 88 S.Ct. (citations 27, at 1883 Id. at (citation Thomas, 685 F.2d at 844 States omitted). footnote omitted) (“The appearance of a physical concerning testimony The officers’ the offi significant ... suspect may be pri- them to particularized facts known the suspect’s bulge on the suspicious cer sees a amply demon pat-down search or to the suspect by the worn body or the clothes to assume it was that reasonable strated weapon.”) We conclude easily hide a could dangerous. Two armed and that was by conducted Ser limited that the three reported that informants had citizen by reasonably warranted geant was cocaine that observed days earlier circumstances totality of the the facts and packaging in that sub used and materials detaining Salas. prior to him known to Because the in Room 227. for sale stance to relevant authori maids, was Without citation cocaine, by observed one argue the appears that mere ty, lines, for in it reasonable spread out was had drawn their of fact that officers at least one to assume that the officers 536 stopping prior him

weapons entering before exceeded the noz agree. Room 227. We concededly scope Terry stop. valid report citizen informers that disagree. The has in- We Court packaging cocaine and materials narcot making policeman that “the a rea- structed ics been observed in Room 227 on stop investigatory should not be sonable 22, February 1988 which was corroborated protect opportunity to denied the himself by personal observations of the officers suspect.” by a hostile attack Adams including discovery Salas’ Williams, 407 U.S. S.Ct. 92 person, clearly probable established that (1972). 612 32 L.Ed.2d cause existed to arrest Munoz. The district was made in A similar contention concluded, however, court also that the of Russell, Cir. States v. ficers failed exigent to articulate sufficient Russell, In matter before 1976). justify circumstances to a warrantless en court, parties conceded this try into Room 227 to make an arrest or to stop based on a investigatory well prevent the property. destruction of Ab suspicion. appel at 840. Id. founded exigent circumstances, sent a warrantless however, argued, lant in Russell that the prohibited. to make an arrest stop drawing weapons prior York, Payton 576, 100 v. New 445 U.S. justified.. responded not Id. (1980). L.Ed.2d have foolhardy would been “[t]he officers The district court also determined that weapons ready hour to have this because Id. location....” United States v. to comply failed state federal (9th Cir.1983), Taylor, 716 F.2d 701 we held “knock and answer” rules. U.S.C. totality that under circumstances (1982), Wash.Rev.Code 10.31.040 § § officers, they justified known to the (1980). above, govern- As noted making stop. in a Terry Id. at 708. We ment illegality concedes the the initial concluded “[w]hen entry into Room 227. stopped Taylor apparent and his confeder ate, Pressler, them, question ... argue given justified in drawing officers were their illegality entry, of the initial the warrant in self-protection.” Id. issued for the search of Room 227 was added). (emphasis invalid because the affidavit set forth ob- servations made Detective Hurst of co- pointed No firearms were at Salas objects fact, plain caine and other stop. view there is no Munoz’s arrest. record Salas saw the officers Thus, weapons. it has been demon- The district court denied the mo subjective strated that his freedom of suppress tions based on its conclusion movement was affected manner that all reference to the items in seen approach. Sergeant the officers’ armed plain by view the officers after the initial placed weapon testified he his “down deleted, is Detective Hurst’s my right leg.” placed affidavit Detective Milosovich “still contains Weapon right thigh” “behind sufficient untainted facts out [his] sight. probable of establish totality Salas’ Under the cause for the warrant to case, in issue.” circumstances this the officers’ The district court concluded fur handguns drawn concealed did but not ther that information “[t]his [untainted] validity investigatory stop. taint the of this resulting and the lawful warrant constitute The district court did not err in denying independent an source for the evidence suppress motion to the cocaine seized from in found Room 227.” In Segura v. United person. Salas’ States, U.S. 104 S.Ct. (1984), Supreme L.Ed.2d 599 Validity B. the Search Warrant for Court held that a search was valid notwith Room 227 standing the that fact an earlier The district court had premises concluded that the been made on the be probable cause to arrest Mu- “wholly cause warrant was issued requests the Munoz Court review before “this. to officers known Opening in Driver.” Brief of its decision The court apartment....” entry into Munoz, pg. argues Appellant 7. He exclusionary rule was concluded that permit nor “Segura compel does government inapplicable because the in Id. He also result reached Driver.” de- of the items the existence discovered issued on asserts warrant “[a] inde- from an in warrant scribed containing an both tainted affidavit Id. pendent source. cannot serve as an untainted information 3385.1 argu independent source.” at 10. This Id. no inde- there was contends that contrary of this clearly ment is to the law for issuance pendent source three-judge A of this court panel circuit. offi- argues that the He search warrant. disregard prior deci cannot overrule for search warrant applied “had cers court. sion of this States C.B.S. Appellant Sa- Brief Cal., had been refused.” Dist. Dist. Court Cent. las, argument (9th Cir.1984)(court mischaracterizes pg This bound apply controlling prior panel The officers did Ninth evidence. to follow as precedent); Mont. v. John of a search Circuit State magistrate for the issuance (9th Cir.1984)(this son, 1074, 1077 738 F.2d cocaine on discovery of prior to the warrant prior panels). court bound decision of show that The record does person. Salas’ Driver to the facts set Applying untainted Salas, a the lawful detention prior to affidavit, we forth in Detective Hurst’s advised county prosecutor had probable derived from conclude that cause for addi- his surveillance Hurst to continue supported the is independent an source Thereafter, the offi- information. tional search Room 227. suance of a warrant to including the personal observations cers’ that we must reverse the Salas contends jacket cor- Salas’ of cocaine from seizure suppress denial of his motion because had re- the information roborated magistrate that the re- “there is no doubt Mo- employees at Nendel’s from the ceived upon the evidence seen the room” lied tel. Appel- Brief of following entry. the initial Hurst’s also asserts that Salas, argues that Mur- pg. 9. lant evidence contained tainted affidavit — -, States, U.S. ray v. United illegal entry. of the initial fruit was the (1988) supports 101 L.Ed.2d 472 Driver, 776 F.2d 807 United States argument. that, may Cir.1985), warrant held “[t]he Supreme Court held that Murray it contains tainted upheld even where be authorizes the independent source rule long the untaint- facts as and untainted plain view seizure of evidence observed showing of portions contain a ed sufficient illegal entry. Id. 108 earlier an val- cause to render the warrant probable have ob- 2535-36. Where officers S.Ct. at id.” an plain view after il- served that, after court The district concluded obtaining prior a search legal entry, and objects seen deleting all references warrant, instructed Court time Munoz officers at the therefore, question, ultimate [t]he arrested, information known the untainted pursuant to warrant the search whether entry into the initial independent genuinely in fact independent 227 derived from an tangible source of the information facts to sufficient source and constituted This would at issue here. evidence for the warrant to probable agents’ cause decision establish have been the case prompted by court’s agree the district was issue. We with to seek the warrant during the initial they set forth had seen of Driver to the facts what application entry, if information obtained Hurst’s affidavit. in Detective Castillo, States v. magistrate’s court. determination district 1. We review 1989). probable a search warrant Cir. cause existed issue by independently reached of the conclusion presented was magis- to the prompted by they ob- trate and his decision to issue served in plain view during their affected initial the warrant. illegal entry. (footnote (emphasis added) Id. omitted). Detective Hurst testified spoke that he magistrate In Murray, about the Terry stop, court vacated judg- pat down, ment and the remanded to initial entry the Court of Ap- into the peals room. magistrate The instructions that it direct told Detective Hurst that “in opinion district court to his determine they whether “the were clearly justified.” warrant-authorized search of argues ware- “[gjiven independent house an testimony, was source of it would be difficult to con- challenged evidence.” magistrate Id. at 2536. clude that the placed no reliance upon the tainted information that was con- matter, In the instant the district court tained in the affidavit.” Opening Brief of expressly concluded that the untainted in- Appellant Munoz, pg. 15. disagree. formation known the officers “and the magistrate’s comments were confined resulting lawful warrant constitute an inde- to events that prior occurred to the obser- pendent source for the evidence found in vations of cocaine and other objects within Room 227.” Memorandum Decision on Mo- Room 227. Contrary to assertion, Munoz’s Evidence, tions to Suppress page 10. The there is no evidence in the record that district court’s conclusion is supported by support would an inference that magis- the record. The evidence that the officers trate’s decision was affected the brief had decided to obtain a search warrant reference in Detective Hurst’s affidavit to entering Room is uncontradict- what officers observed time of ed. Hurst testified that the offi- Munoz’s arrest in Room 227. cers conferred after Salas was arrested for possession of cocaine. In Murray, Court ex point At that in time we discussed the plained that the exclusionary rule should I Sergeant situation. talked to Almy and not be place invoked to law enforcement Milosovich, we realized we had officers in position a worse than if the more enough than search warrant illegal conduct had not occurred. Id. at obviously light of what we had seen 2525. Had the this matter wait and what we found. ed outside the motel room while the war But we were faced with a situ- tactical obtained, rant was the search of Room 227 sorts, ation of in that the soonest we would have been valid based on the infor get

could a search warrant was three mation from the citizen informants and the hours under the system normally independent officer’s observations includ work with. ing the seizure of cocaine per from Salas’ We knew that there was another indi- son. Excluding the evidence seized in vidual in the room and we felt if Mr. solely Room 227 because the officers erred not return did in a short amount in concluding that their initial time making delivery, the other justified prevent destruction of the evi individual room would know some- place dence would them in a position worse thing wrong and in fact evi- than if had not blundered. Exclusion dence might be in there would be of the evidence under these circumstances destroyed. precluded by Murray.

We decided that it was a decision that C. had to be Search fairly made quickly. Room 27 We decid- go ed to to the room and secure the other Munoz contends that the warrant ob- person from the room so the room would tained for the search of Room 27 of the be secure while we were obtaining our Aero upon based search warrant. gained from search of Room 227 This testimony clearly shows that offi- at Nendel’s Motel. No other invalidity is cers’ decision to seek a search warrant was asserted.

539 227 probable of at Nendel’s mined that cause existed The search Room the pursuant conducted warrant entry of Room 227. have the conduct- the initial valid tainted independent ed an record. review Accordingly, of Room 27 entry. the séarch We also conclude Detective Hurst’s Aero’s Motel based on evidence discover showing sets forth affidavit facts 227 also in the Room ed search probable cause existed to search 227 Room valid. independent from source of the observa- entry. tions of the officers after initial CONCLUSION AFFIRMED. Murray Supreme af- The Court decided Murray, our decision Driver. in ter entry illegal

affidavit did not mention FERGUSON, Judge, Circuit of bales of mar- or the officer’s observation concurring dissenting part in in — Murray, plain in view. U.S. ijuana part: -, magistrate in 108 at The S.Ct. 2532. I the frisk believe that of Salas exceeded Murray did not review an affidavit permissible weapons the outer limits of a tainted and untainted evidence. contained Ohio, 1, Terry under 392 88 search U.S. Holzman, Id. United States v. 871 (1968). 20 L.Ed.2d 889 There S.Ct. Mur- (9th Cir.1989), applied 1496 fore, portion I dissent from that ray in a officers did not case where the majority opinion affirming the district magistrate present ob- to suppress court’s denial of Salas’ motion entry, and re- tained an unlawful person during from his seized for to the district court a determi- manded that search.1 would nation whether warrant have been illegal sought been made. an Striking concern for a balance between Thus, Id. at 1514. squarely issue safety of law enforcement officers presented to this court in Driver was not pat-down personal of a intrusiveness Murray Supreme in nor before the Court search, recog in Terry Supreme Court by us in our Holzman decision. discussed for a en nized narrow authorization law Court, however, Supreme anticipated The conduct, for forcement his own officer problem the mixed affidavit we confronted safety, protection and a limited Driver. in The Court commented that he has reason to be “where presented to a where tainted evidence was dealing he is with an armed and dan lieve magistrate, the warrant be invalid would 27, 88 individual.” Id. gerous S.Ct. illegal fruit of the conduct affected the Illinois, see Ybarra v. 1883; 444 U.S. also Id. 108 S.Ct. at it. 2535- decision to issue 338, 343, 85, 93, 100 62 L.Ed.2d 238 S.Ct. Williams, Adams v. (1979); U.S. testimony in undisputed The the record 1921, 1923, L.Ed.2d magistrate court shows that the before this York, New Sibron v. (1972); U.S. probable cause existed to concluded 20 L.Ed.2d 917 engag- believe that Munoz and Salas Terry (1968). inception scope of a in ing narcotics activities Room strictly its thus limited to frisk remains based information known self-protective function. As the entry. initial There is no evi- before the cautioned, nothing has less than a Court support dence the record that would person poses an particularized that a belief finding magistrate’s decision legal provide the immediate threat will plain issue warrant was affected pat-down of that individu foundation for a view observations the officers after their entry. weapons: initial court deter- al for district Salas, sup- parking I challenges lot concur the denial of his 1. Since Munoz alleged majority opinion to affirms pression the extent that it motion based on taint judgment respect stemming from the the district court’s warrant Motel, into 227 at than Munoz. Nendel's rather 540 Nothing in Terry can be understood to ten safety creates concerns sufficient to generalized allow a ‘cursory justify search for Terry a weapons search, see, e.g., or, weapons’ indeed, any search whatev- United v. Pajari, States 1378, 715 F.2d er anything weapons. (8th but Cir.1983) (detention The ‘nar- 1383-84 and frisk row scope’ of Terry exception suspect does of valid approached when officers permit a weapons frisk for defendant on less with reason to believe than reasonable suspicion belief or confronting “major di- dealer”); narcotics rected person Post, to be United 847, States 607 F.2d 850-51 frisked[.] (9th Cir.1979)(not unreasonable to assume Ybarra, 93, 94, 100 444 U.S. at S.Ct. at 343 drug suspect listed on DEA computer (emphasis added). might be armed dangerous); United The majority runs afoul this funda- Oates, States v. 45, (2d 560 F.2d 59 Cir. Terry mental by principle holding 1977) (reasonable suspicions base record in this case “amply demonstrate^]” suspect dangerous armed and in part on his that Officer Almy had reason believe reputation as “major narcotics dealer” Salas was armed dangerous prior area); the Detroit United States v. Santa conducting search. In reach- na, 365, 485 (2d F.2d Cir.1973), 368-69 cert. ing conclusion, the majority misreads denied, 931, 415 U.S. 1444, 94 S.Ct. 39 the record and facts, cites several including (1974) L.Ed.2d (“[I]t 490 would not un be the fact that Salas was seated an auto- reasonable to assume that a man believed mobile officers, when confronted be top one of the narcotics violators hour stop, late and the possibility York New area would carrying be that Salas recently ingested narcotics, or arms would be violent.”), otherwise it facts, which stated in actuality, played no emasculates Terry’s specificity require part in Almy’s Officer decision ment to weapons condone any searches for Salas. Officer Almy unequivocally testi- subjects or all investigations” “narcotics fied suppression at the hearing that he had whatever suspected their level of criminal premised weapons Salas’ solely conduct propensity for violence. See the fact that Salas subject was the of a Ceballos, United States 654 F.2d 2 investigation.” “narcotics (2d Cir.1981) (generalization that nar . Thus, uphold Salas’ search in this case cotics traffickers frequently armed vio is to sanction Terry weapons search lent, more, without insufficient to justify on nothing based generalized more than Terry search); Ybarra, see also suspicions concerning person’s involve- 444 U.S. at 343; 100 S.Ct. at ment in narcotics activities. gen- Blanket Santillanes, States v. 848 F.2d certain, about eralizations the nature of (10th Cir.1988); Thomas, United States v. crimes, however, provide fail to that speci- Cir.1988). 629-30 Given ficity of information which is the hallmark of any absence suggesting of Fourth Amendment jurisprudence. that the officers believed they were dealing Cortez, United States v. 411, 418, 449 U.S. prominent drug traffickers, or traf (1981); L.Ed.2d 621 fickers associated with drug other dealers Terry, 392 U.S. at 21 n. at 1880 harboring known tendencies, violent I can n. 18. experience While suggests join in the majority’s leap inferential strong likelihood of certain narcotics traf- that Salas posed a credible threat of armed carrying

fickers or possessing of- dangerous firearms behavior.3 During joint suppression it, Salas-Munoz Q. just just That was the narcotics investi- hearing, following exchange gation? place took be- tween A. Officer That's and the Assistant correct. U.S. Attor- ney: 3. Neither the statements made the Nendel Q. any circumstances, Did other maids, besides this nor the officers’ first-hand obser- was a investigation, vations, narcotics contribute to bore evidence that Salas or Munoz your concern, possessed such as day? weapons. Moreover, time of or carried as the No, A. investigation" it did not. "narcotics of Salas and Munoz commenced at the behest manager majority’s surprising that It is America, justifications approach to STATES

deferential UNITED comfort finds Plaintiff-Appellee, weapons searches Terry activities. involving narcotics illicit case v. images of bat metaphors and Invoking the SANCHEZ-LOPEZ; Brijido Epifanio drugs” has tle, government’s “war Astorga-Ayon, of constitutional casualties already made Defendants-Appellants. dignity. See Na personal protections Union Von Treasury Employees tional America, UNITED STATES of — U.S. -, Raab, Plaintiff-Appellee J., (Scalia, (1989) dissent 103 L.Ed.2d , v. underlying ing). laudable However MARTINEZ-ORTEGA, Antonio society, eradicating drugs our goal of Defendant-Appellant. eradi do not also that we must ensure process Amendment the Fourth cate America, UNITED STATES aims alone do goal worthy serving that — Plaintiff-Appellee, The Su create reasonable searches. against Terry admonition preme Court’s SANCHEZ-LOPEZ, govern Guillermo imprimaturs affixing judicial Defendant-Appellant. Fourth invades core conduct that mental repeating: values bears Amendment 88-3102, and 88-3105. 88-3104 Nos. decision, retain courts still our Under Appeals, United States Court guard responsibility to their traditional Ninth Circuit. which is overbear- against police conduct upon harassing, May trenches ing Argued or which or and Submitted objective security personal without 22, 1989. Decided June the Con- evidentiary justification which such conduct requires. When stitution

identified, by the condemned it must be its must be excluded

judiciary and fruits in criminal trials.

from evidence at 1876. U.S. con-

Accordingly, I would reverse Salas’ of his for reevaluation and remand

viction motion consideration

suppression absent person. illegally from his seized of, with, alleged knowledge nar- their day prior only arrest contact one Nendel’s Motel activities, Munoz, of the officers in- none cotics of Salas any previous investigation had volved in this

Case Details

Case Name: United States v. Joel Torres Salas, United States of America v. Vincente Flores Munoz

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 19, 1989

Citation: 879 F.2d 530

Docket Number: 88-3221, 88-3228

Court Abbreviation: 9th Cir.