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United States v. Zermeno

filed: September 25, 1995.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
FELIPE ZERMENO; RAMON FLORES-RIVAS, DEFENDANTS-APPELLEES. UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, V. GUILLERMO SILVA-SOSA, DEFENDANT-APPELLEE.



Appeals from the United States District Court for the Southern District of California. D.C. No. CR-94-00928-LCN. D.C. No. CR-94-928-02-LCN. Leland C. Nielsen, Senior District Judge, Presiding.

Before: David R. Thompson, Edward Leavy and Stephen S. Trott, Circuit Judges. Opinion by Judge Thompson.

Author: Thompson

THOMPSON, Circuit Judge:

The government appeals the district court's order granting the motions of defendants-appellees Felipe Zermeno, Ramon Flores-Rivas and Guillermo Silva-Sosa (collectively "defendants") to suppress evidence found pursuant to a search of a "stash house." The government claims the district court erred in ruling that Zermeno and Silva-Sosa have standing to challenge the search, that the search warrant was overbroad, and that the agents executing the warrant failed to comply with the "knock and announce" requirement of 18 U.S.C. § 3109.

We have jurisdiction under 28 U.S.C. § 1291. We conclude that Zermeno and Silva-Sosa do not have standing to challenge the search under either section 3109 or the Fourth Amendment, and we reverse the district court's suppression order as to them.

The government does not challenge Flores-Rivas's standing. We conclude the manner in which the searching agents entered the "stash house" where Flores-Rivas was residing violated the statutory "knock and announce" requirement of section 3109. We thus affirm the district court's suppression order as to Flores-Rivas. We do not reach the issue of the search warrant's alleged overbreadth.

I

On July 20, 1994, Drug Enforcement Administration Agent Alan E. Poleszak obtained a warrant to search a residence located at 4330 Adrienne Street in Chula Vista, California. Surveillance operations had revealed that Zermeno, Flores-Rivas, Silva-Sosa and others were trafficking in drugs and using that location as a "stash house."

The search was conducted the next day. Zermeno and Silva-Sosa did not reside at the Adrienne Street house and they were not there when it was searched. They had been arrested earlier at another location.

The evidence is conflicting with respect to the manner in which entry into the Adrienne house was accomplished. Agent Poleszak testified that when the agents approached the residence they found the "inside" front door, which was made of wood, open. However, the "outside" front door, which was made of perforated metal, was closed and locked with a deadbolt. Agent Poleszak testified that he pounded on the metal door loudly and yelled "Federal Agents-DEA; with a search warrant; open the door" two or three times in Spanish. He then saw Flores-Rivas approach the door. After "more than eight, less than thirty seconds" had passed and Flores-Rivas had made no move to open the door, the agents applied a pry tool and forced the door open.

Flores-Rivas disputed this version of the events. He testified he was sitting in the living room watching television when he heard the "humming of a car" outside the front window. He looked out the window and saw four or five men jump out of the sliding door of a gray van. He did not see any distinguishing markings on the vehicle. The men approached the front door of the house, and one of them shouted "Open the door, Open the door." There was no mention of a warrant at this time, and no one identified the men as police officers.

According to Flores-Rivas, at this point he was five meters from the front door. Before he could reach the door, the men outside began hitting it with a large metal object which he described as red in color, three feet long, with a square piece of metal on the front and handles. Flores-Rivas testified that when he reached the door and attempted to open it, he discovered the deadbolt had been bent and he was unable to unlock the door.

The search of the Adrienne Street house uncovered a small amount of marijuana, packaging materials, money counters, camouflage gear, two assault rifles, a machine gun and 1,550 rounds of ammunition. Zermeno, Flores-Rivas and Silva-Sosa were indicted for conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1); use and carrying of a firearm in the commission of a drug crime, in violation of 18 U.S.C. § 924(c)(1); and possession of machine guns, in violation of 18 U.S.C. § 922(o).

All three defendants filed pretrial motions to suppress the evidence obtained as a result of the search. The government conceded Flores-Rivas had standing to contest the legality of the search, but argued Zermeno and Silva-Sosa did not. The district court disagreed. The court also determined that the search warrant failed to satisfy the particularity requirement of the Fourth Amendment,*fn1 and that the manner in which the agents entered the premises violated the "knock and announce" ...


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