United States v. Ramon P. Tarazon

intent Contrary to the Lopez. difficult Amendment, he was-left Sixth of the “ orga forces ‘prosecutorial face the ” Burbine, Moran society’ alone. nized 412, 430, 106 S.Ct. Moul Maine v. (quoting

L.Ed.2d ton, (1985)). besides Others L.Ed.2d regrettable to this contributed

prosecutor

result. America, STATES

UNITED

Plaintiff-Appellee, TARAZON, Defendant- P.

Ramon

Appellant.

No. 92-10204. Appeals, States Court

Ninth Circuit. 5, 1993.* Feb.

Submitted 17, 1993. March

Decided * argument, 34-4, panel tion without oral Circuit to Ninth Rule Pursuant disposi- unanimously this case suitable finds Slaton, Lynn Valley,

Sandra Paradise AZ, defendant-appellant. for Q. Atty., Kirby, Vincent Asst. U.S. Phoe- nix, AZ, plaintiff-appellee. FARRIS, POOLE, and Before: WIGGINS, Judges. Circuit POOLE, Judge: Circuit Appellant appeals Ramon P. Tarazón posses- following jury conviction trial for sion of a narcotic substance with the intent distribute, in of 21 violation U.S.C. 841(a)(1) (b)(l)(B)(ii). and Tarazón ar- § (1) in gues that: the district court erred suppress, motion to denying his prosecutor improper made an reference to trial, testifying his not the dis- admitting pistol in in trict court erred arguments reject We these evidence. affirm.

I. 28,1991, Drug August officers of On (DEA), Administration work- Enforcement Bureau of Alco- conjunction with the ing hol, (ATF), Firearms obtained Tobacco and a location in a federal search warrant for Phoenix, During the execution of Arizona. warrant, target the search war- this cooperate the law en- agreed rant them with provided forcement officials individual, of a second the whereabouts White, a cocaine identified as Ken later dealer. information, target’s

Based on the to Hermosa Park in South officials went p.m., 10:00 approximately At Phoenix. de- White. The officials they encountered area White, immediate searched the tained of co- packages ounce and located 10 one The officials nearby trash can. caine ap- handgun and millimeter also found a 9 vehi- in cash in White’s proximately $450.00 104 Mirandized, being After arrested and to the officials that admitted

cle. White that he was at the Tarazón told the officials that he owned the his and the cocaine was selling indicating kept it. The he it in the purposes pistol, park for the agreement White's obtained on concerns officials then station based about robberies supplier. to his to lead them Tarazón also the area. told Serna, belonged that the cocaine who did p.m., White approximately 10:30 At English, he as speak served telephone Aspon call agreed to make translator transactions. Serna’s Service, at 6443 South Central located Auto told Tarazón further the officials that Ser- Phoenix, spoke Tarazón. Avenue supplier approxi- na who delivered that he needed one- White advised per mately kilogram one-half of cocaine subsequently kilogram of cocaine half day. Tarazón told him that that told the officials it up. White told pick he could come right testify Tarazón exercised his not drugs had purchased that he the officials During closing argument, the at his trial. approximately three at this establishment prosecutor following made the comment: past. in times the get up “Unless someone wants to here and say I didn’t know to distribute cocaine p.m., 11:00 White and approximately At law, against your and you the assist uncle arrived at the establishment. negotiating in a transaction it is inten- byin Tarazón. White was met and admitted aiding committing in a tionally someone Tarazón, presence of An- in White drug offense.” uncle, Serna, negotiated Tarazon’s a gel $8,500.00, took a price and Tarazón then of from the front bag of cocaine out behind II. White it to White. told desk and showed Suppress A. Denial of Motion to he return with the

Tarazón that would three to four money. This transaction took all argues evidence ob- minutes. entry, tained as a result of the warrantless sup- arrest and search should have been left, reported he what had After White (1) pressed probable there no because: and conferred with occurred to the officials him cause to arrest or search the establish- action to regarding what take. White them ment; (2) exigent no circum- there were the officials that Tarazón and explained to support stances sufficient to a warrantless delay suspicious any of become Serna could search; (3) scope arrest or of usually money had his because White justifica- its search exceeded constitutional official, Agent ATF Wil- him. At least one tion. court’s deter- We review the district liamson, Tar- delay could result in felt that legality mination of the of an arrest or destroying leaving or azon’s and Serna’s Lai, search de See novo. United States The decided to make the cocaine. officials 1434, (9th Cir.1991), 944 F.2d 1441 into entry a warrantless the establishment. — -, S.Ct. entry at approxi- their The officials made (1992). L.Ed.2d We review district mately p.m. 11:40 underlying findings court’s factual found Tarazón and Serna The officials clear error. Id. The present in officials the establishment. placed Serna and Tarazón on floor and 1. Probable Cause performed search of a warrantless prob of The officials discovered a sack The officials’ determination front desk. desk on White’s informa drawer of the contain- able cause was based bottom reaffirming totality-of-the-circ officials a tion. In ing cocaine. The discovered analysis traditionally in another that has pistol loaded .25 caliber drawer. umstances1 (1969). prong clear rejected apparently test L.Ed.2d 637 Gates made Gates the two Texas, Aguilar required by probable 378 U.S. does turn of cause determination (1964) Spinelli S.Ct. 12 L.Ed.2d 723 knowledge on the basis of the informant’s States, United 393 U.S. drug suppliers were and that establishment cause determinations probable applied drugs premises. in on the from an there would be obtained on information based Illinois formant, Court Supreme 213, 238, 103 S.Ct. Gates, Exigent Circumstances “prob held probable The existence of cause on concept turning cause is fluid able — not eliminate the for a warrant does need particu probabilities of the assessment exigent circumstances. absent readily, even or lar factual contexts —not Suarez, legal to a neat set of usefully, reduced Cir.1990). government The bears bur tips doubtless come Informant’s rules. showing exigent den of existence many from differ shapes and sizes many by particularized evidence. circumstances 232, 103 S.Ct. Id. at types persons.” ent 1468, citing United States v. Alva Id. at if an noted that even The Court rez, (9th Cir.1987). Mere 810 F.2d disclose basis informant does not presence of speculation information, or the police corroboration premises danger and the drugs on support can surrounding circumstances is not sufficient to show their destruction reliability. informant’s of the determination Suarez, exigent circumstances. In 242-46, at 2334-36. a The officials have had at 1468. must Gates, that court has found this applying exigent that circum reasonable belief penal against an informant’s admission an Furthermore, the existed. stances corroborating detail. “Admis is a interest neces presence exigent of circumstances carry their own indicia crimes ... of sions time sarily that there is insufficient implies support to at least credibility of —sufficient warrant; therefore, govern the obtain a to cause to search.” finding probable of a show that a could not ment must warrant Estrada, 733 F.2d v. States United Lai, in F.2d time. 944 have been obtained Cir.), (9th 469 U.S. 686 omitted). (citations at 1441 (citing 103 83 L.Ed.2d 105 S.Ct. Harris, 573, 583, United States of ex The officials’ determination 2075, 2081, (1971)). 723 29 L.Ed.2d in based on was also igent circumstances from White. White formation obtained information suffi provided White usually operated police the that he told support the officials’ determinat cient to in supplier on a “cash hand” basis with his White probable cause. admitted ion2 of suspicious if dealer, they become and that would an admission he was a that cocaine pur to make his he not return soon further did penal interest. White against his times has held several calling chase. This court by interest against penal his acted drug transactions irregularities agreeing to ar supplier and alleged his suspect to supplier cause a which could transaction the officials’ range drug pre or destroy police action evidence the district court Finally, as presence. to are sufficient pare to a residence found, defend were able corrobo the officials Lai, See exigent listening circumstances. by constitute information rate White’s v. Lind 1442; United States at following him 944 F.2d supplier and him talk to his (9th Cir.1989); Unit sey, 877 F.2d Therefore, 781 supplier’s to his establishment. Perdomo, F.2d ed States shows totality of circumstances the the Cir.1986); United States (9th was reliable information that White’s Wulfer Cir.1986); (9th dinger, F.2d they determined properly the officials Hicks, F.2d and United to arrest Tarazón probable had cause Kunkler, Cir.1985); United States (9th infor White’s the establishment. search Cir.1982). (9th There- 187, 190 in the 679 F.2d persons indicated that mation circumstances, officials’ enforcement law veracity of the informant. 462 exigent probable of cause 2329. determinations at at adjudged under the same are circumstances magistrate’s determi- While Gates concerned 2. Lai, at 1441. F.2d See standard. totality of probable based on the cause nation of length ordi- there is no record of the of time about the fore, information White’s telephonic war- required to obtain search his transactions nary manner of good attempt by Failing rant. to make a faith properly considered supplier was exigent telephonic present or determining whether to obtain a warrant officials showing telephonic that a warrant evidence existed. circumstances ordinarily sup- requires unavailable was circum argues Alvarez, pression. 810 F.2d at 881-84. exigent truly not case were in this stances However, government argues that the officials’ failure result of the were the but available in this case was obvi- minutes Alvarez, earlier. See seek a warrant ously time to obtain even insufficient argu While that, although no telephonic warrant and be cause under ably probable Gates showing good unavailability faith was or to the establish White they fore followed made, required, the time “it is evident that arrange him transaction ment and had short, not however was available.” exigent circum rise to the gave which F.2d Manfredi, 722 at rely stances, required to they were representations solely on White’s Andersson, 813 States v. suppli of his identity and whereabouts 1987), controlling on F.2d 1450 Cir. for the officials It reasonable er. court, point. citing this In Andersson tip. See United corroborate White’s Alvarez, held that the both Manfredi Manfredi, 722 States v. telephonic required to obtain a war time Lai, Cir.1983). court noted that In An- rant was not available. Id. may have had law enforcement officers similar to dersson involved circumstances support probable evidence to sufficient government case: learned those this exigent circumstances cause before midnight after location narcotics police arose, officers’ deferred to the but negotiated from an informant a who evidence. 944 F.2d desire obtain more suppliers, rise giving transaction with similarly The record in this case of evi to concerns about the destruction they the officials believed shows that quick response made. dence unless a es only going to the probable cause a Id. Andersson also was case which after finding There is no basis for tablishment. government did the not introduce evidence exigent circum officials created that the a required time obtain the obviating the need stances as a means of Furthermore, telephonic warrant. a warrant.. obtaining there was more time available in Anders- hour, son, about one than this case. Id. belief of exi the officials’ Whether Thus, officials Andersson dictates the de was reasonable gent circumstances in this had a reasonable case belief between pends on whether the 30 minutes exigent existed. circumstances the and their leaving establishment White’s a tele entry time was sufficient obtain Scope 3. Search Rule of phonic under Federal warrant Alvarez, 41(c)(2).3 ex exigent Because circumstances Procedure See Criminal isted, 882, entering justified 722 Manfredi, the officials were quoting 810 F.2d at Tarazon. sought arresting The advice the establishment and F.2d at 522. officials 589-90, 573, York, Payton did 445 U.S. Attorney’s from Office but v. New the U.S. 1371, warrant, 1381-82, 100 63 L.Ed.2d 639 attempt telephonic a and to obtain 1111, denied, 1523, 41(c)(2)(A) L.Ed.2d the circum- U.S. 106 S.Ct. 89 Rule states that 475 ‘‘[i]f 41(c)(2) (1986). requires dispense Specifically, it a Rule stances make reasonable 920 affidavit, (1) magistrate may person requesting telephonic a issue written Federal a a warrant to: testimony warrant; (2) upon prepare duplicate original a based sworn oral read warrant by appropri- telephone magistrate duplicate original or other communicated verba- tim; (3) magistrate’s sign ate means." name on the federal warrant; (4) duplicate original easy enter telephonic Obtaining an warrant is not original 523; duplicate Manfredi, exact time of execution on task. 722 F.2d at United 773, Cir.), Good, (9th warrant. States cert. F.2d

1Q51 763, Chimel, 395 U.S. at 89 S.Ct. at Al-Azzawy, 784 see (1980); States United denied, 2040, Cir.), and the search incident to the arrest (9th cert. F.2d clearly comports 700 in this case with the 90 L.Ed.2d Tur- 106 S.Ct. First, course, had the test. officials searched the also ner (1986). Of Tarazón to Tara- drawers of the desk and Serna incident perform a search right to sitting they were California, were behind when arrest- Chimel zon’s arrest. See clearly 752, 763, 23 ed. The desk drawers were within 89 S.Ct. at the time Andersson, F.2d at Tarazon’s and Serna’s control (1969); Second, Tarazón they to a were arrested. may, incident police “A officer on floor4 arrest, contemporaneous placed were near the Serna conduct lawful desk, only search occurred person front and the of the arrestee’s search warrantless Therefore, the arrest. arrestee moments after into which the of the area properly denied the motion to weapon or de district court to retrieve a might reach (citations suppress.5 stroy Id. at 1455 evidence.” omitted).

interna] quotations During Clos- B. Prosecutor’s Statement propriety of evaluating In ing Argument arrest, recent this court incident to search argues prose that the Tarazón prong test: two ly adopted following impermissible reference to his exer cutor’s item to within was the be searched right testify not to at trial re cise of his control; did custody and arrestee’s However, quires reversal. made following arrest make the events objection prose contemporaneous no to the States unreasonable. See United search alleged error cutor’s comment. An raised (9th Cir.), Turner, F.2d 887-88 — appeal is reviewed for for the first time on U.S. -, denied, cert. plain error. United States v. Gomez (1991) (quoting 116 L.Ed.2d Cir.), Norena, Fleming, (1990). To merit re S.Ct. 363 Cir.1982)). the issue Turner addressed versal, criminal an error must affect a such from which the a search of a room whether rights. Federal substantial defendant’s per which was was removed arrestee 52(b). Rever Rule of Criminal Procedure the arrestee was handcuffed while formed exceptional is and plain sal based on error Applying constitutional. Id. was a necessary prevent to only occurs when adopted from inquiry it the level that two preserve the miscarriage justice or to of the area the court found that Fleming, pro judicial integrity reputation and of arrestee’s control was within the searched Kennedy, 714 F.2d cess. States United at 888. The arrested. when he was 968, (9th Cir.1983), cert. 465 977 not unreason that it also found was court 1305, 79 L.Ed.2d 704 U.S. delay, a to incur short for the officers able omitted). (1984) (citations remove him to a the arrestee and handcuff performing room before another prosecutor’s A comment holding to its Id. Turner limited search. testify at trial vio failure to a defendant’s delay oc only a short in which situations Fifth lates the Amendment. Griffin not far the arrestee is curs and where 609, 611-12, 85 States, U.S. 380 United Id. at the area searched. from removed (1965). 106 1231-32, 14 L.Ed.2d S.Ct. 2. 888 n. impermissible if is prosecutor’s A comment attention to manifestly to call it is intended the front The officials believed testify or is evidence, to the defendant’s failure contain desk could destructible may been not have píete The search. officials does not whether record show The 4. but, not, complete search when justified performing accord- a or in Serna were handcuffed and ing Turner, significance. premises simply this fact of no they to is secured could have Lai, a warrant. and obtained search prop- was of the front desk Because the search omitted). (citations n. F.2d at 1442-43 arrest, is no incident there a search to er as need to determine whether proper com- it was a possession with the intent to dis- jury would natu commit that the a character such it tribute cocaine. necessarily take to be com rally and testify. to United the failure if ment on Now we take the defendant’s state- happened night as Bagley, ment as to what States denied, 475 Cir.1985), happened, not really what then he 326; conducting in L.Ed.2d his uncle assisted 5.Ct. Soulard, Cir. it not occurred transaction could have language 1984). barrier. because the defendant must have known And has set forth various This court that, agreed he to make the because prosecu determining whether a criteria translation, by own statement. regarding a impermissible comment tor’s prior And that defendant acted to the testify requires re to failure defendant’s only being completed, well rea- crime on the de comment versal. Prosecutorial go through, I sale as son didn’t testify mandates rever fendant’s failure before, money. mentioned was lack of extensive, comment sal where such is they It offered to make the sale. But silence is guilt from where an inference prior already was made jury as a basis convic stressed finding and the half-kilo of co- returning tion, the evidence could have and where in caine the desk drawer. acquittal. Kennedy, 714 F.2d supported find, show, you we and must And must Moreover, only required if reversal that the defendant acted with knowl- have affected ver the comment could edge helping and intention of another Pruitt, 719 F.2d dict. United States commit the crime. (9th Cir.) curiam), (per cert. de up to get someone wants here Unless nied, say, I know and didn’t to distribute (1983). willWe not reverse law, against you and cocaine is prosecutorial single, comment is a when your negotiating assist uncle incident, not stress an infer does isolated negotiating drug offense as guilt from silence the basis of ence of transaction, intentionally aiding it is conviction, by a curative is followed committing a drug someone in offense. 1307; Soulard, 730 F.2d at instruction. prosecutor’s suggested The comment 714 F.2d at 976. Kennedy, testify jury that Tarazon’s failure to comment, prosecutor’s The taken unintentionally he acted showed that context, as full follows: its committing intentionally he acted Now, flip side to there’s a sort of little ultimately he crime of which was convicted. abetting. aiding under the You this case, involving This as blatant or while also, separate can these are offenses— repeated references the defendant’s fail- aiding abetting conspiracy, Sunn, testify, is akin to v. ure to Lincoln aiding abetting posses- this there is 805, (9th Cir.1987), in 807 F.2d 809-11 sion. prosecutor’s terms of the tenor of the com- First, posses- to there you have find was Lincoln, As in the comment in this ment.6 by intent to distribute sion with the create an inference case was intended to someone, particular room, in that its well testify to between the defendant’s failure Angel Serna or Ramon Tarazón. either Lincoln, guilt. and his resultant Unlike thing you is need to find the comment in this case was not followed The second instruction, by potentially knowingly intentionally mak- a curative defendant counseled, etc., aided, abetted, prejudicial. prosecutor’s ing another to it more The Soulard, testify. at government in which the his failure to See 730 F.2d 6. The relies on cases 1306-07; 494; Kennedy, prosecutor’s Bagley, 772 at was either much F.2d comment: 977; Armstrong, general v. ambiguous and more at United States more went to F.2d denied, (9th Cir.1981), exculpatory cert. lack of than the defen- F.2d 1330-31 evidence testify, 71 L.Ed.2d 315 dant’s to or were made in 454 U.S. S.Ct. failure (1982). response explanation to a defendant’s improper where the firearm does firearm is rights under Tarazon’s violated comment against any charges the defen- not relate to Amendment. Fifth States, F.2d dant, v. see Green United However, not all constitutional Cir.1981), (9th pistol in this require error and plain constitute violations possession was relevant case Molina, United States reversal. objec- against Tarazón. Tarazon’s charges Cir.1991) (involv (9th 1440, 1446 F.2d tions, prejudice on relevance and both vouching prosecutorial ing impermissible him relief. afford no grounds, object, and witnesses). not Tarazón did for is of the court judgment The district com ambiguous singular, somewhat AFFIRMED. miscarriage of constitute a does ment integrity of the to the or an affront justice WIGGINS, circum Judge, specially these “Under process. Circuit

judicial was to the stances, prejudice concurring: defendant any re further have been and could minimal disap express my separately to I write the trial brought appellant duced this court’s decision United proval of of a cura possibility attention

judge’s (9th Turner, F.2d 883 Cir. States 714 F.2d at Kennedy, instruction.” tive mind, which, unnecessarily 1991), my impermissible Thus, prosecutor’s inci expanded the search illegitimately require does not reversal. comment Fourth exception to the to arrest dent requirement. warrant Amendment’s at Trial Pistol of the Admission C. exception to to arrest search incident The pistol dis that the argues Tarazón enunciated requirement was the warrant front desk of the during the search covered 752, 89 395 U.S. California, Chimel Rules under Federal inadmissible (1969). In Chi 23 L.Ed.2d 685 extent that 403. To the 401 and Evidence stated: mel, specifically Supreme Court should pistol contends the ar- entirely reasonable is [I]t grounds, relevance on excluded have been and seize resting to search for officer of discre an this abuse review issue we person in any on the arrestee’s evidence that he contends the extent To tion. or de- its prevent concealment order to excluded on have been pistol should an into which the area And struction. raised an issue not grounds, prejudice grab a reach order might arrestee error. plain trial, this issue for we review must, of evidentiary items weapon or Llano, 830 De Crispo A like rule. course, by a governed be Cir.1987), modified, 1532, 1544 in front or in a drawer gun aon table (1988); United States F.2d 1006 dangerous can be as is one who arrested Gomez-Norena, as one concealed arresting officer 111 S.Ct. Cir.), person arrested. clothing of the in the (1990). The Chimel Id. at admitting not err did The district court con- justified by two exception primarily Tarazon’s relating to evidence pistol as preservation safety and cerns—officer inferred reasonably be may “It charges. evidence. drugs has possessor of an armed however, the search Turner, expanded person in mind than mere something more log- beyond exception to arrest incident a defen seized from guns Thus use. al of Chimel. of the rationale ical boundaries in a trial are admissible residence dant’s as a upheld court the Turner Specifically, substance of a controlled possession for search of to arrest search incident valid United States to distribute.” intent the defen- bedroom the defendant’s after Cir.), Savinovich, F.2d handcuffed, arrested, dant had been U.S. the room. from removed (1988)(citations and inter first enunci- pronged test Llano, Adopting a two omitted); De Crispo quotes nal F.2d Fleming, 677 ated in of While the admission at 1544. Cir.1982),1 first I therefore recommend that Turner be the Turner court however, time, that be- area overruled. Until the searched whether inquired into by are Turner and be- cause we bound immediate control the arrestee’s was within cause, out, opinion points this case as the Turner, 926 F.2d was arrested. when he squarely pronged test fits within two the bed Turner was on Because at 887. may adopted, there even be valid under arrested, cocaine when baggies of with the Chimel, I in the conclusion that the concur concluding difficulty in little the court had of the desk incident to the arrest of search in- court second it The Turner that was. Mr. Tarazón was valid. occurring after events quired into whether the search made the before the arrest but Because of the con- unreasonable.

search the court concluded safety,

cern for officer they had not. Turner and handcuffed

The officers room out of a the next

took him into say cannot safety. We

concern for unfounded, they for were these concerns America, UNITED STATES weap- already a concealed discovered Plaintiff-Appellee, bedding. They did not on beneath delay long away or take him far conducting the search. Under the before LILLIE, Defendant-Appellant. Dean E. circumstances, find the search we cannot No. 91-30169. in- baggies of cocaine that revealed consistent with Chimel.... Appeals, United States Court Ninth Circuit. however, Chimel, specifically indicated Argued and Submitted Oct. 1992. availability scope of a search that the Decided March 1993. expanded not be incident to arrest should allowing it. beyond the reasons Chi

mel, 89 S.Ct. at motivating neither of the concerns

Because preservation safety and

Chimel—officer present once a defendant has

evidence—are handcuffed, arrested, and removed

been searched, subsequently it

from the room just Al that Turner did that.

seems clear re

though I Scalia’s doubts share Justice “general rule”

garding validity of the always required under a warrant Amendment, the Fourth see California — -, -,

Acevedo, (Scalia,

1982, 1993, 114 L.Ed.2d 619

J., “general concurring), long as that so law, danger there is no

rule” is the where arresting officers or

either to the warrant, waiting for a search

evidence should re arresting

then the officers be

quired to do so. though Fleming, permitted arrest even the search occurred Seventh Circuit time of In include the search of search incident to arrest to paper defendant had been handcuffed. after the bag carrying at the the defendant was

Case Details

Case Name: United States v. Ramon P. Tarazon

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 17, 1993

Citation: 989 F.2d 1045

Docket Number: 92-10204

Court Abbreviation: 9th Cir.