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United States v. Romero

filed: July 16, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JUAN CARLOS ROMERO, JOSE LUIS BANTULA, ANTONIO AVANA, HUMBERTO ARIAS, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Central District of California. DC No.CR-88-0483-RMT-06, CR-88-0483-RMT-01, CR-88-0483-RMT-07, CR-88-0483-RMT-09. Robert M. Takasugi, District Judge, Presiding.

Before: Browning, Boochever, and Reinhardt, Circuit Judges.

MEMORANDUM

Juan Carlos Romero, Jose Luis Bantula, Antonio Avana, and Humberto Arias appeal their jury convictions for conspiracy and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Bantula also appeals a four-level upward adjustment in his offense level under the Sentencing Guidelines. We affirm.

Discussion

I. Search of the 3721 Palos Verdes Drive residence

Bantula, Avana, and Arias challenge the district court's refusal to suppress evidence seized from the Palos Verdes "stash house." They argue that the warrant authorizing the search was not based on probable cause, because police surveillance only established probable cause to search the rear of the residence, where co-defendant Perez earlier had driven the load car, not inside the residence.

In reviewing the issuance of a search warrant, we must determine whether the magistrate had a substantial basis for concluding that the affidavit in support of the warrant established probable cause. Illinois v. Gates, 462 U.S. 213, 238-39 (1983). This standard of review is "less probing than de novo review and shows deference to the issuing magistrate's determination." United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir. 1986). The magistrate need only conclude that it would be reasonable to seek the evidence in the place stated in the affidavit. United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.), cert. denied, 474 U.S. 847 (1985).

There was a sufficient nexus between the activities of Perez and the Palos Verdes house to establish probable cause for the search of the house interior. According to the affidavit, the police saw Perez drive to the rear of the house and then disappear from their sight for ten minutes, during which time he picked up the 50 kilograms of cocaine. Defendants contend that the affidavit fails to include facts which link the cocaine with the residence rather than the backyard -- such as the observation of people leaving the house with boxes or other containers of cocaine. It was reasonable, however, for the police and magistrate to conclude that the defendants kept the cocaine inside the house, rather than in the backyard for all to see. See Peacock, 761 F.2d at 1315. It was also reasonable to conclude that Perez had driven to the rear of the residence so that the cocaine could be loaded into the car without attracting attention from neighbors. Cf. United States v. Bertrand, 926 F.2d 838, 840-42 (9th Cir. 1991) (affidavit provided probable cause to search outlying real property of residence notwithstanding the fact that police believed that the drug lab was located in the residence).

The defendants' reliance on United States v. Howard, 828 F.2d 552 (9th Cir. 1987), is misplaced. In Howard, this court concluded that no probable cause existed for the warrantless search of a house, because the police had, at best, a reasonable suspicion to believe that a drug lab existed in the detached garage of the property. Id. at 554-55. In contrast, the officers here did not see the cocaine come from a particular structure other than the house, such as a detached garage. Furthermore, the officers were aware that Perez was planning to make a second delivery of cocaine; thus, they were justified in believing that this additional cocaine would also be at the Palos Verdes property. We therefore affirm the denial of the defendants' motion to suppress evidence from the Palos Verdes house.

II. Knock and notice provisions of 18 U.S.C. § 3109

Bantula, Avana, and Arias also contend that the police failed to comply with the knock-notice requirement of 18 U.S.C. § 3109 when the police executed the search warrant. The trial court's factual determinations are reviewed for clear error and its application of the law to the facts is reviewed de novo.

18 U.S.C. § 3109 (1988) governs the execution of warrants and states:

The officer may break open any outer . . . door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance. . . .

(emphasis added).

The facts here indicate that the officers complied with the statute. The police announced their authority and purpose by stating twice in English and Spanish that they were police officers with a search warrant and by demanding entry. They waited 20-30 seconds before forcing open the door. A failure to answer a knock and announcement is regarded as a "refused admittance" and a justification for forcible entry. United States v. Ramos, 923 F.2d 1346, 1356 (9th Cir. 1991). While Arias may have been moving towards the door when the police entered, this is unimportant: the elapse of 20-30 seconds before forcible entry constituted enough time to satisfy § 3109 and Fourth Amendment requirements. See, e.g., United States v. Phelps, 490 F.2d 644, 647 (9th Cir.) (elapse of 10-20 seconds justifies forcible entry under § 3109), cert. denied, 419 U.S. 836 (1974). Although Arias testified at the suppression hearing that he heard footsteps, but no announcements, at the door, the Judge found the police officers more credible. Because special deference is accorded to a district court's credibility determinations, we find no error in the district court's decision to believe the officers rather than the defendants.

Arias also argues that Officer LaCroix' justification for quick entry -- fear of evidence destruction -- was not supported by the facts. This argument is inapposite, because 18 U.S.C. § 3109 does not require a condition akin to an "exigent circumstance" prior to forcible entry. We affirm the district court's finding that the officers complied with the knock and notice provisions of 18 U.S.C. § 3109.

III. Sufficiency of the evidence

Bantula, Romero, Avana, and Arias argue that the evidence was insufficient to support their convictions. Evidence at trial is sufficient to support a conviction if "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Calabrese, 825 F.2d 1342, 1348 (9th Cir. 1987).

The elements of conspiracy are: 1) an agreement to accomplish an illegal objective, 2) one or more acts in furtherance of the illegal purpose, and 3) intent to commit the underlying substantive offense. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). Knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and from evidence of the defendant's actions. United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.), cert. denied, 449 U.S. 1038 (1980). Once there is evidence of a conspiracy, proof of only a "slight connection" between the defendant and the conspiracy is sufficient to convict. United States v. Guzman, 849 F.2d 447, 448 (9th Cir. 1988). When a defendant is found guilty of conspiracy, he may be convicted of substantive violations committed by co-conspirators. United States v. Torres-Rodriguez, 930 F.2d 1375, 1382 (9th Cir. 1991).

The crime of possession with intent to distribute cocaine has three elements: a defendant 1) knowingly, 2) possessed the cocaine, 3) with an intent to distribute it. United States v. Ocampo, 937 F.2d 485, 488 (9th Cir. 1991). A person may not be convicted unless he knows contraband is present and he is capable of exercising dominion and control over the contraband. United States v. Behanna, 814 F.2d 1318, 1319 (9th Cir. 1987). Possession may be actual or constructive. Constructive possession may be shown by proof that the defendant participated in ...


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