United States v. Wilberto Ramos-Morales

1409 n. F.2d at Ocampo, 968 See States.11 above, the evi- think As outlined we

1. find that jury for sufficient

dence large knowingly possessed

defendant Air- Iberian on board of cocaine

quantity Flight 928. See

lines Gonzalez-Torres, present-

Cir.1992)(holding government that a violation evidence of

ed sufficient was showing “that defendant § arrived on an aircraft

a passenger Panama, two suit- Rico from

Puerto a con- contained on that aircraft

cases substance, substance was

trolled ac- cocaine, the defendant and that

in fact constructively the two possessed

tually or defen-

suitcases”). Accordingly, we affirm III. under conviction Count

dant’s

III. Aquayo, appellant. R. Jose CONCLUSION Perez, Atty., Asst. U.S. Carlos A. reasons, sum, foregoing we for the Romo, Atty., Lopez Daniel F. whom under 21 defendant’s conviction affirm appellee. on brief 841(a)(1)and 955. U.S.C. §§ Affirmed. BREYER, Judge, Before Chief

BOWNES, Judge, and Senior Circuit BOUDIN, Judge. Circuit BREYER, Judge. Chief Drug Enforcement agents of the Federal (“DEA”) the defendant on Agency arrested STATES, Appellee, UNITED time, the defendant charges. At that drug of the road. his car on the side RAMOS-MORALES, car, it, impounded seized Wilberto Defendant, Appellant. it, that was found evidence searched single issue at trial. later introduced No. 92-1255. is whether the seizure appeal this Appeals, United States Court The district lawful. parked car was First Circuit. “rea- to a the seizure amounted held lawful, sonable,” impoundment of hence Heard Oct. 1992. vandalism. We prevent theft or car to Dec. 1992. Decided agree. light facts, presented The basic (whose favorable most see, credited), explicitly the court witnesses Newton, 891 F.2d e.g., (1st Cir.1989), as follows: are n. government’s sufficiency of the proof not contest requires that the co- 955 also Section 11. element, cargo part manifest or the this evidence on caine does supplies Defendant of the aircraft. official 626 on the basis of ing criteria and 1991, agents, to standard 12, July two 1. On suspicion of evidence something the other than arrest warrant

armed with Morales, activity.” v. Ramos Colorado defendant, of criminal Wilberto 743, description, 93 fitting Ramos’ 107 S.Ct. man 479 U.S. spotted a white, two-story, apart- (1987). have Lower courts emerging from L.Ed.2d 739 Carolina, Tulipán, may lawfully impound on Calle house the ment found that agents told passerby A Puerto Rico. remain on that would otherwise a vehicle indeed Ramos. street, man was highway city or the side car, Ramos enter his Rodriguez-Morales, saw v. agents see United States 2. Cir.1991), next (1st the sidewalk cert. de on F.2d 780 parked — end Tulipán is a dead -, nied, Calle 112 S.Ct. house. the car towards drove (1992); Ramos v. street. States Ve L.Ed.2d United turned street and (7th Cir.1990); far end of larde, 903 F.2d 1163 open blocked The officers (6th around. Duncan, F.2d 220 Cir. v. States car, emerged their the street with end of 729 F.2d 1985); Griffin, v. United States weapons, pointed their car with denied, (7th Cir.), 469 U.S. cert. car, told Ra- in his and Ramos them at (1984); 117, 83 L.Ed.2d 60 105 S.Ct. stop. mos to Taddeo, F.Supp. 81 “in Ramos, then car was whose 3. (W.D.N.Y.1989), aff'd, 932 street,” car “to- moved his middle of lot, Cir.1991); private parking see or road,” stopped and edge of the wards 885 F.2d 713 Kornegay, Ramos edge of the street.” it “on Cir.1989), denied, (10th cert. car, agents “put got then out (1990); 109 L.Ed.2d 110 S.Ct. his of the vehicle with him in front Johnson, 734 F.2d 503 it,” and one of the top of hand[s] Staller, (10th Cir.1984); keys “top from the agents took Cir.), denied, (5th F.2d 1284 cert. car,” left them. Ramos had where 66 L.Ed.2d 89 101 S.Ct. Ramos, agents, arresting After 4. procedures,” following “DEA standard distinguish tries to these appellant agents instruct apparently which he his car by arguing that cases off in an unknown loca- a “vehicle “leave” place just private parking the street tion,” protection car “for took the problem with home. The main outside his protect” “to security purposes,” i.e.,— read argument is factual. We must this safety “for the “property” and Ramos’ favorably government, record itself.” vehicle (whom government’s witnesses and the they testified that did agents 5. credited) testified that the generally “usually or Ramos lived know where edge” of the road car was left “on usually stayed.” They had a he where they “did not know” building outside check they were to list of five addresses believed) (and reasonably need not have Tuli- to find him. Calle in an effort Ramos’ home. on the list. was the last pán address plate, reg- car had a BCK license distinguish Ramos’ tries to these The dissent apparently a differ- at what was istered the street by pointing out that cases district) (“Country Ramos ad- Club” ent busy public street where a question is not a dress. place, out of long-parked might seem harm; it is not a inviting theft or bring this would seem to These facts lot, belonging to another private parking many scope case well within agents had no reason person; and that the finding police impoundment to precedents espe- in an the street was located to think rea- a car from theft or vandalism But these distinc- cially crime-ridden area. sonable, Supreme and hence lawful. The convincing. For one not seem tions do police may held that im- itself has Court significant risk that an aban- thing, the reason, provided this pound a car for damaged does car will be stolen decision “accord- doned impoundment make their streets, nonbusy, streets, busy, tion “high between busy confined not seem Supreme of that and a terms Court park- or commercial neighborhoods, crime” cases, seems a distinction host of here, later another, For ing lots. busy a difference. To hold car, followed standard impounding suspect’s arresting must a officers leave uni- The existence and procedures. they information behind if lack about car proce- standard of such application form surrounding neighborhood’s crime rate the the dissent help prevent what can dures that under- contrary runs to the rationale interests, privacy to major a threat as sees authority, it invites the lies the case law use arresting officers will namely that very of risks that the cases hold kinds (and the impoundment” “theft-prevention procedures such as justify impoundment follows) a usually as inventory search that one at issue. the here initiating for evidence pretext for searches authority, this case See activity. U.S. extensive Given the of criminal application 375-76, basically to to involve 742-43. seems us 107 S.Ct. at at of, of, existing law. any extension importantly, perhaps most Finally, and And, case as if we not considered the have spe in Bertine seemed Supreme Court the writing Fourth law were Amendment we per Constitution cifically to hold that the on a blank slate. impound, pursu arresting to officers mits reasons, judgment the of the For these procedures, an arrested standard ant to district is might otherwise automobile person’s result, Id. This be left abandoned. Affirmed. legiti said, government’s reflects the Court BOWNES, Judge, Circuit Senior theft reducing automobile interest

mate dissenting. ex damage, the individual’s diminished and Fourth has automobile, again the Amendment Once and privacy in pectation of Drugs.” casualty of the on a “War become clear, to standard rules tendency of majority opinion treats warrantless Dakota South police abuses. control Cf. Drug En- by of an automobile seizure 364, 373, 96 Opperman, S.Ct. mat- a routine forcement Administration as (1976) (accord 49 L.Ed.2d simply the seizure be- approves ter and caretaking proce police to ing deference they agents said followed cause the and vehic designed to secure dures I do not procedures.” DEA “standard police within custo and their contents les requirements of the Fourth think any significant distinc do not see dy). We cavalierly shunt- should be so Amendment con at and that the case bar tion between ed aside. supple authority, particularly as trolling page eases cited on mented A of review. I start standard Indeed, Bertine, as far as the Su supra. findings suppression district court’s reveals, there opinion preme Court’s binding appeal unless hearing are fact but for the to this identical erroneous. clearly are likely Cir.1991). at the side of Lanni, the Bertine car was F.2d pre (the having stopped, and police record of road that we review This means driver) over, light the drunk most sumably pulled hearing in the suppression intersection, re busy while car But our near government. favorable to road district there. The was at side not end this case view does (The must be sub neighborhood. dissent’s conclusion” residential court’s “ultimate review.” in Bertine “could jected “plenary claim that Cir.1991). 110, 112 (1st Sanchez, at it was located left the car where have Ibarra, also, any See lacks ba of Bertine’s arrest” the time Cir.1992) (10th (“[ajlthough the description; in Supreme Court’s sis in subject findings are factual to have had district court’s police here deed the seem review, ‘clearly standard and erroneous’ authority to have left the reason- determination said, And, ultimate locked.) distinc- as we have ignores or misstates. The United States seizure and of ... ableness officer’s] [an guarantees right of the to be reviewed Constitution question of law “[t]he is a search novo.”). persons, secure in their hous- people be de by this court es, effects, papers, against unreason- appeals must also bear The court seizures_” searches able Const, defendant moves a criminal mind that when Generally, a search of amend. IV. a war- seized without suppress evidence private property is unconstitutional unless Amendment, the Fourth rant in violation properly is- pursuant it is conducted to a prov- the burden of bears Katz v. search sued warrant. seizure falls with- ing that warrantless States, S.Ct. exceptions to the narrow one L.Ed.2d 576 In a limited number Amend- of the Fourth requirement warrant situations, however, warrantless of has stated: the Court ment. As upheld have been as “reason- searches empha- this Court has again Over and exception such to the warrant able.” One the Amend- mandate of sized police, in the requirement arises when judicial pro- adherence to requires ment “community caretaking exercise of their States, 232 v. United cesses. See Weeks Dombrowski, functions,” Cady v. 413 U.S. 341, 383, L.Ed. 58 S.Ct. 652] U.S. [34 433, 441, 2523, 2528, 37 L.Ed.2d 93 S.Ct. States, Agnello v. United (1914); 269 (1973), acquire temporary custody of a 706 4, (1925). 70 L.Ed. U.S. 20 S.Ct. 145] [46 In such cir- privately-owned automobile. arrest, to a valid Only where incident Supreme has held cumstances Court Rabinowitz, 339 v. U.S. inventory search of the that a warrantless 430, (1950), 56, L.Ed. or 94 S.Ct. 653] [70 “pursuant po- made to standard automobile circumstances,” Johnson “exceptional in procedures” purpose and for the lice States, 333 10, S.Ct. v. United [68 protecting con- “securing or the ear and its (1948), exemp- 367, may an 92 L.Ed. 436] police is a reasonable intrusion tents” lie, then the burden is on those tion and Amendment which does not offend Fourth exemption to show the need seeking the Opperman, Dakota v. South principles. States, v. it, for McDonald 3092, 373, 372 & 96 S.Ct. 428 U.S. 191, 193, 451, 456, S.Ct. 93 L.Ed. [69 Opper- (1976). 49 L.Ed.2d 1000 & (1948). 153] man, police impounded a vehicle which 48, 51, 72 Jeffers, v. United States 342 U.S. no-parking The parked had been zone. also, See 96 L.Ed. 59 S.Ct. “authority of the Court stated that Carbajal, v. F.2d United States from the streets police to seize and remove (9th Cir.1992) (burden is on impeding threatening traffic or vehicles reasonableness of warrantless show beyond public safety and convenience is including demonstrating that search search Id. challenge.” at 96 S.Ct. at 3097. exceptions the narrow comes within one of Ibarra, F.2d requirement); to warrant Opperman Court identified three (government bears burden of at 1409-10 justify the invento distinct interests which seizure of auto satis- showing warrantless (1) protection ry search of an automobile: Amendment); exception fies to Fourth property police cus of the owner’s while Rutkowski, 877 F.2d (2) police against tody; protection of the Cir.1989) (1st (government has burden regarding property; stolen claims lost or establishing “plain entitlement view” (3) poten protection of the exception to Fourth Amendment's warrant Id. Before pro the need to danger. tial LaFave, Wayne R. 4 Search requirement); arise, however, can tect these interests (2d Seizure, 11.2(b) n. at 218 ed. § legitimate cus government must have “the (government always has Supp.1991) &1987 property inventoried.” tody of the to be applicability exception proving burden Jenkins, requirement). to warrant Cir.1989) omitted). See (2d (citations 640, 648, 103 Lafayette, Illinois impoundment I now turn to the law (1983); 2605, 2610, 77 L.Ed.2d 65 majority either S.Ct. vehicles which the motor ing; they parking had to choose between Pappas, 613 Cir.1979). public the vehicle in a impounding lot or it. grant The Court determined that the suppres agents testified at The DEA officers of such discretion and their exer- they impounded the vehic hearing that sion cise of that discretion were reason- both risk of theft or protect it from the le to able. vandalism, part the rules of the “and as agents’ perceived risk of agency.” In this the officers had no reason to vandalism, however, sup theft or legally parked move Ramos’ car. It was regarding the charac by any facts ported neighborhood. a residential There was no nor were the neighborhood, ter evidence interfering explained put or agency” “rules traffic, pedestrian, either automotive or only evidence before evidence. any way. The DEA stressed that legally parked that the car was court was impounded the car was it from edge street residen at the vandalism, there was no but evidence ac neighborhood. The district court tial neighborhood cars had been agents’ “safety” justification cepted the regularly intermittently. vandalized rely question and did not on the not, question here is as it was in Ber- procedures DEA standard existence of tine, police appropriately whether the exer- issue, therefore, justify the seizure. impound cised their discretion to the car were, agents under the facts whether Instead, because had to move it. case, justified impounding in Ramos’ of this question is it was for whether reasonable it its contents. “Framed car to impound given to the vehicle in question the critical cases such precisely, lawfully parked fact it that was resi- needed to as this is not whether dential area at the time of arrest. in some impound the vehicle absolute upheld the Courts have reasonableness sense, impound effected an or could have by to of decisions law enforcement officials solicitously, whether the ment more but impound leaving in cases vehicles where method chosen impound and the decision pose the vehicle where it was would either were, under implementing decision public safety present or a threat circumstances, within the realm of all the See, inviting target for thieves or vandals. Rodriguez-Mo v. reason.” United States F.2d at 780, (1st Cir.1991), e.g., Rodriguez-Morales, 929 785 rales, F.2d 786 cert. 929 — (shoulder -, 868, busy highway of a interstate denied, 112 S.Ct. 116 properly licensed to occupant when no L.Ed.2d 774 drive); Velarde, 903 F.2d v. States heavily on the Su majority relies 1163, Cir.1990) (same); (7th 1166-67 Unit decision in v. Ber preme Court’s Colorado 713, Kornegay, 885 F.2d 716 ed States v. 738, 367, tine, 107 93 479 U.S. S.Ct. (10th Cir.1989) (parked private in lot and (1987). I read the L.Ed.2d 739 Bertine identity operator), know of police did not In differently my than brothers. facts 935, 2179, denied, 495 U.S. 110 S.Ct. cert. upheld municipal regula Bertine the Court (1990); v. 109 L.Ed.2d 508 United States Boulder, Colorado, gave its tions (occu 929, (4th Cir.) Brown, 787 F.2d 932 the discretion to choose be police officers drunk, per pants appeared no known sober parking car and impounding a tween car, nuisance), custody, and son available to take was public parking place, “so locking it unattended, present if could left accord long as that discretion is exercised denied, 837, 107 S.Ct. 479 U.S. rt. ing standard criteria and on the basis ce 137, (1986); L.Ed.2d 80 United States v. 93 suspicion something other than evidence Cir.1985) (6th Duncan, F.2d activity.” Id. at 107 S.Ct. of criminal (arrest highway); United States Bertine does not control facts at 743. (10th Johnson, Cir. mistakenly majority as the of this lot, 1984) exposed to private (parked could not asserts. the officers inebriated); vandalism, and owner the ear it located at have left where was 475, 480 Griffin, 729 F.2d for drunk driv- the time of Bertine’s arrest if it remained legally ject to theft or vandalism (neither occupant could Cir.) (7th was, high especially light emergency lane of where remove present leaving persons it there would wit- fact that several way and risk), denied, 469 cert. theft hazard and the arrest. nessed 117, 83 L.Ed.2d 60 830, 105 S.Ct. Despite the reasonableness Staller, (1984); uncertainty actual agents’ about Ramos’ Cir.) (5th (legally parked 1284, 1289-90 residence, uncertainty signifi- had no lot, but arrested parking shopping mall perceived risk of theft or cance for nobody of state and from out driver risks of his automobile. Those vandalism responsibility), to assume available else was res- independently of Ramos’ existed actual denied, 101 S.Ct. rt. ce upon the dependent risks are idence. Such (1980); L.Ed.2d pro- neighborhood and the character (W.D.N.Y. Taddeo, F.Supp. 82-83 pensity for car theft and vandalism busy six- 1989) lane on a (stopped in a bus all, being the odds of the car area. After the center of downtown highway near lane stranger stolen or are less vandalized hour), aff'd, rush prior to just Rochester a low parks his car an area with who Cir.1991); (2d F.2d 956 theft, resident of car than those for a rate 750IL, F.Supp. v. 1988 B.M.W. high-risk parks area who his car out- (no (E.D.Pa.) licensed driver avail 173-74 no evidence of- his home. There was side parked near street remove vehicle able sup- government at either the vandalism), fered risk of theft or exposed to corner and hearing support trial to pression 891 F.2d opinion, aff 284 'd neighborhood in characterization Cir.1989). (3d and his car were found as which Ramos many these same majority cites high for car one either a or low risk of its conclusion that support in cases The of the theft or vandalism. location legal. In of Ramos’ car impoundment actual of Ramos is residence irrelevant has to consider doing, majority failed so “poli- alleged DEA this determination. the cited differences between the factual in cy” against leaving vehicles of arrestees fac- Despite clear this case. cases and overbroad, if not locations” is “unknown sup- the line of cases tual differences completely irrational. decisions to reasonableness of porting the protection of ei- impound vehicles second, connected, sup- reason public, the district or the ther owner ruling, support in plied by the court its unsupported agents’ accepted arrest, is that were witnesses there associated with the risks about conclusions of the simply supported the record legally car where was: leaving Ramos’ suppression hearing. At the suppression edge Now street.” parked “at others hearing, question of whether error. appeals compounds this the court present near the scene of arrest arose were fac- First, did find two Agent district court that Ramirez on four occasions. of the the reasonableness supported posed by tors response questions testified that there would agents’ determination prosecutrix happened when about what theft or van- threat of a serious have person been bystander he whether the asked where it they left the vehicle had was, dalism Honda get he saw into the Accord first, were that officers parked: fact, Ramos: of Ra- the actual residence unsure about person near on A I who was asked second, people wit- mos; and, that several next car was the house to where his of the In the the arrest. words nessed Willy, per- and that parked if he was court: district responded in the affirmative.... son arrest, agents were at time of the actual resi- the defendant’s uncertain of Q happened to that individual What circumstances, the Under these dence. you inquired from, if he was had that reasonably concluded agents could have Willy? could be sub- the defendant’s vehicle that stances, protection such as the I know what moment don’t A that At safety prevention or the of theft or vandal- to him. happened ism, soon the rule. As the would swallow you arrested de- Q there when heWas noted, “Opperman Circuit has can- Ramos Morales? Tenth fendant justify used to the automatic not be inven- madam, he was not. A No upon tory every the arrest of its what Second, Ramon testified about Agent justifications rule are owner. spotted the they first agents did when carefully crafted for this to too be in the name of registered Honda Accord Pappas, intent.” United States Ramos: (10th Cir.1984). anybody on did not see A [S]ince [we] wait, and so decided to streets we Pappas, 613 F.2d 324 on that surveillance established we (1st Cir.1979), held that this court even end street. is a dead street which government impounds a vehicle when cross-examination, testi- Third, Ramon agents its have reason to believe because seeing Vadiz fied he did remember that subject to forfeiture under 21 that it is mo- just prior to the Ramos’ car next to 881(b)(4),it fulfill the war- U.S.C. must § his vehicle: Ramos entered ment when requirement exigent the absence rant man next to Q you see another [D]id Id. at 330. The Second circumstances. Mr. car, immediately Ra- next holding recently agreed, that war- Circuit car? mos’s 881(b)(4) seizures under “must rantless § recall, I A Sir. Not exceptions recognized meet one Vadiz, the defen- Fourth, as a witness for require- fourth amendment’s warrant dant, present at the that he was testified Lasanta, 978 ment.” the arrest scene of (2d Cir.1992). giving custody him Ramos from prevented requirement must If the warrant be met court, sup- in its car. The district legiti- has a cases where the this testi- explicitly rejected order pression mate, impound- statutory justification for agents further testi- mony, stating: “[t]he vehicle, ing surely the existence of a neighbor was not 19-year-old fied that the policy” no substitute for vague “agency arrest. time of defendant’s at the present presented a the circumstances warrant the hearing testimony of After does not stand by this case. Bertine finds neighbor, the Court that of long so as a DEA proposition that agents more credible testimony of the following pro- to standard agent claims be Vadiz.” of Guido than that [sic] cedures, with- he can seize an automobile Therefore, no evidence there was In the Court a warrant. out hearing support- suppression record must re- that when merely held finding that “several district court’s ing the arrest, scene of an a car from the move if the arrest.” Even witnessed persons proce- standard may, in accord sup- at the such evidence there had been dures, the car a park and lock either itself, the trial such hearing, or at pression impound the vehicle and public place or more, support evidence, would without predi- inventory The search. an conduct a probable cause to seize vehic- finding of a met in was not this to the Bertine rule cate is difficult to a le without warrant. It showing that no There was evidence case. major urban area imagine any arrest reason any legitimate to agents had by at least one not witnessed which is majority has Ramos’ vehicle. move to reason Were that sufficient bystander. how the Court from Bertine extrapolated time of a car at the the seizure of justify may This be a this decide case. would the warrant arrest, exception limited to I think we are prediction, but exigent circum- reasonable requirement based brief, Appellee at 9 sight." n. "pri- one was within Brief According government’s own 1. arrest, neighbors in the there were or to the 5. During arrest no and after the area. immediate guaran- the freedoms erosion of judicial holdings Ber- of facts and to the restricted Rights. by the Bill of teed issued. it was as tine of rec- review the careful summary, a no evidence was there that ord reveals car Ramos’ that district before it to exposed in an area

was located theft, and the vandalism risk of notice judicial take did district court neighbor- in such a was the car support no evidence There was hood. PHARMACY, INCORPORAT STILL’S finding that there were witness- the court’s Incorporat Pharmacy, ED, Riis-Wald certainty lack of arrest. es Incorporat Drug Company, ed, M.F.K. Ramos residence of the actual about Plaintiffs, ed, exigent sufficient to whether as irrelevant war- justify existed circumstances Society of of the State Pharmaceutical Given automobile. of his rantless seizure York, Incorporated, Plaintiff- New rec- supporting evidence lack of Appellant-Cross-Appellee, majority. ord, join I cannot ignores the is- completely majority CUOMO, the State of Governor Mario proof. sue burden Perales, York, A. Commis Cesar New it proof whenever burden bears Dept. sioner, of Social New State York To- seizures. warrantless justify seeks Services, Defendants-Appellees-Cross- evi- any supporting lack of despite a day, Appellants. naked agents’ dence, court affirms this leaving Ramos’ car where conclusion 92- Nos. Dockets pre- Ramos was arrested parked when 7102L, 92-7104XAP. This theft or vandalism. risk of sented a Appeals, States Court future, a DEA any time means that Circuit. Second suspect’s automobile without agent seizes she did say is that warrant, she need all 16, 1992. Argued Sept. dangers car from protect the so “to 4, 1992. Dec. Decided agents will vandalism.” theft and gets into suspect until surely wait now arrest effecting an before

his automobile arrested, the because, suspect once conduct impound the

agents can probable cause

inventory search circum- exigent in the absence

stances. by cur- compelled

Today’s decision not a court of As doctrine.

rent constitutional first recognize that our must

appeals, we it has as uphold Constitution

duty is to Supreme Court. by interpreted

been and circumscribe ought not diminish

We Rights Bill protections Su- a clear command

absence of gives judicial majority

preme Court. impermissible seizure

sanction to re- that violates the

citizen’s automobile Amendment. Fourth

quirements step is, lamentably, another ruling

This

Case Details

Case Name: United States v. Wilberto Ramos-Morales

Court Name: Court of Appeals for the First Circuit

Date Published: Dec 31, 1992

Citation: 981 F.2d 625

Docket Number: 92-1255

Court Abbreviation: 1st Cir.