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United States v. Hernandez-Mieses

United States Court of Appeals, First Circuit

July 31, 2019

UNITED STATES OF AMERICA, Appellee,
v.
SANDY HERNANDEZ-MIESES, Defendant, Appellant.

          APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]

          Rafael F. Castro Lang for appellant.

          Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

          Before Torruella, Lipez, and Thompson, Circuit Judges.

          LIPEZ, CIRCUIT JUDGE.

         Sandy Hernandez-Mieses appeals from the district court's partial denial of his motion to suppress evidence seized from his home on the day of his arrest on drug and money laundering charges in Cataño, Puerto Rico. Specifically, he challenges the district court's conclusion that federal law enforcement agents validly relied on exceptions to the warrant requirement when they searched his home, a cargo van inside his garage, and a minivan parked in his driveway. He also asserts more broadly that the entire operation was tainted by the agents' unlawful intention to execute a warrantless search even before they entered his home to execute the arrest warrant.

         After careful review, we affirm the district court's determination that a gun, cellphones, and cash were lawfully seized from the first floor, and we reject Hernandez-Mieses's contention that the entire operation was tainted. However, because we cannot determine on this record that the cellphones on the second floor and the drugs in the cargo van were lawfully seized, we vacate the district court's denial of suppression as to those items and remand for further findings concerning the duration and scope of the purported protective sweep. We also vacate and remand as to the application of the automobile exception to the cargo van so that the district court can reconsider the issue based on its conclusions regarding the sweep. Finally, we vacate the district court's order as to the items seized from the minivan and remand so that the district court can determine in the first instance whether the minivan was within the curtilage of Hernandez-Mieses's home.

         I.

         We recount the facts as found by the district court, consistent with record support, with the addition of undisputed facts drawn from the suppression hearing. See United States v. Dancy, 640 F.3d 455, 458 (1st Cir. 2011). Hernandez-Mieses was charged, along with five co-defendants, in a seven-count indictment alleging a conspiracy to import and distribute cocaine. These charges arose from "Operation Beach Break," a maritime drug smuggling investigation by the Caribbean Corridor Strike Force of Homeland Security Investigations ("HSI").

         On November 1, 2016, federal agents executed an arrest warrant for Hernandez-Mieses at his home outside San Juan. Among the agents was Ricardo Nazario, a special agent with HSI for approximately sixteen years and a group supervisor with the Strike Force for the previous seven. Nazario had previously surveilled Hernandez-Mieses at this home and knew that he used a wheelchair. Before executing the arrest warrant, Nazario briefed the other agents on the high probability that they might encounter weapons, narcotics, and cash inside the house. Approximately twenty agents with ten vehicles were involved in executing the arrest warrant, and they were accompanied by Honzo, a Customs and Border Protection dog trained to detect both concealed humans and narcotics.

         The agents arrived at what Nazario described as an "average"-sized, two-story house at around 5:45 AM. Upon arrival, Nazario noticed that the first floor lights were on and observed shadows of several individuals through the frosted-glass front windows. Nazario was not expecting that people other than Hernandez-Mieses would be in the house, or that anybody would be awake at the time. He approached the frosted-glass front door, accompanied by another special agent, and announced himself as the police. He then saw the shadow of a person approach the front door and lock it from the inside. Nazario and the other agent broke the frosted glass in two places and looked through the openings. From the photographs admitted into evidence at the suppression hearing and Nazario's testimony, it appears that the first floor was essentially an open space with four modes of egress: the front door; sliding doors leading to the back terrace; a side door leading from the kitchen to the pool area and garage; and stairs leading to the second floor.

         Nazario saw Hernandez-Mieses in his wheelchair near the dining table with two other individuals. Nazario reached through one of the holes in the door, unlocked it, and chased the two men, who fled through the back terrace doors and jumped the property's rear fence. During this initial brief pursuit, other agents entered the house behind Nazario and handcuffed Hernandez-Mieses. All told, approximately ten agents entered the house and ten remained outside to secure the perimeter, which was accomplished shortly after the arrest.

         Having lost the fleeing individuals, [1] Nazario returned from the terrace and observed a Glock handgun on the kitchen counter, approximately ten feet from where Hernandez-Mieses was sitting and close to the staircase leading to the second floor. The agents observed four cellphones and a bag with cash on the dining table.[2]Nazario also observed that the door from the kitchen to the adjacent swimming pool area and garage was open.

         Nazario then ordered what he characterized as a protective sweep of the house based on his expressed concern that there could be people hiding who might pose a threat to the agents.[3] Honzo accompanied the agents during the sweep. After taking five to seven minutes to sweep the first floor, including a bathroom, the agents proceeded to the second floor, where they swept two bedrooms, two bathrooms, and a master bedroom. In one of the bedrooms, Honzo alerted to a bag in front of the bed containing four kilograms of cocaine. Nazario also observed four cellphones on the bed in that room. In the master bedroom, Honzo "alerted to and opened" a shoebox inside the closet, which contained $34, 000 in cash.

         The agents proceeded through the open door off the kitchen to the garage, where they saw a cargo van.[4] Nazario touched the hood of the cargo van, which was hot; noticed that the tires were covered with sand and mud and that there was water dripping from the cargo area; and smelled saltwater and fuel.

         Nazario, who was accompanied by five other agents, said he opened the cargo van's unlocked rear doors to "[s]earch[] for people hiding." Inside, Nazario observed more than forty wet, sandy bales of what he took to be narcotics.[5] The agents also looked in a closet next to the van. According to Nazario, the sweep was completed once the agents swept the garage, approximately twenty-two minutes after they arrived at the house.[6]

         The agents then called a government attorney, who told them that they could perform a full search of the house. Before doing so, however, Nazario approached the minivan parked in the driveway in front of the garage door, which he had previously seen Hernandez-Mieses driving. Nazario observed sand on the tires and interior carpet, and he touched the hood, ascertaining that it was hot. Using keys located on top of the dining table, the agents unlocked the minivan and searched the interior. Among other items, they found a loaded Glock in the compartment between the two front seats, a paper bag full of money in front of that compartment, and a wallet in the passenger door containing identification documents for Lajara-De La Cruz.[7] The agents then performed a comprehensive search of the house and seized multiple incriminating items, including cash, a firearm, and ammunition.

         After his arrest and the search, Hernandez-Mieses was charged in a second indictment along with Jimenez-Diaz and Lajara-De La Cruz. Hernandez-Mieses filed a motion to suppress all evidence seized from his house on the day of his arrest. After a hearing, at which agent Nazario was the sole witness, the district court suppressed the drugs and cash found by Honzo on the second floor and all evidence seized during the warrantless search of the house conducted after the agents called the government attorney. But it declined to suppress the gun and cash found on the first floor, the cellphones found in the bedroom on the second floor, the drugs found in the cargo van, and the items found in the minivan. After the district court denied his motion for reconsideration, which focused on the cargo van, Hernandez-Mieses entered a joint straight plea to both indictments, reserving his right to appeal the district court's suppression order. He was sentenced to a total of 180 months of imprisonment on the two indictments. This timely appeal followed.

         II.

         When reviewing a district court's denial of a motion to suppress, we ordinarily assess the district court's findings of fact for clear error and its conclusions of law de novo. United States v. Ackies, 918 F.3d 190, 197 (1st Cir. 2019). If the evidence at issue was seized during a warrantless search, "it is the government's burden to demonstrate the legitimacy of the search." United States v. Winston, 444 F.3d 115, 123-24 (1st Cir. 2006).

         The Fourth Amendment protects all persons "against unreasonable search and seizures." U.S. Const. amend. IV. Because "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," Payton v. New York, 445 U.S. 573, 585 (1980)(internal quotation marks omitted), "a warrantless search of a private residence is presumptively unreasonable unless one of a few well-delineated exceptions applies," United States v. Infante, 701 F.3d 386, 392 (1st Cir. 2012). Hernandez-Mieses concedes that the agents possessed a valid arrest warrant, which entitled them to enter his home to arrest him. See Payton, 445 U.S. at 603. But he contends that the agents' actions were tainted because they also intended to perform a warrantless search of his home. Moreover, regardless of the agents' intent, he contends that their actions did not fit any exception to the warrant requirement and were therefore unlawful; in particular, he argues that the agents were not effectuating a lawful protective sweep when they spotted the cellphones in the second floor bedroom and the drugs in the cargo van. Finally, he contends that the agents had no lawful basis for searching the minivan in the driveway.

         A. Agents' Intention to Perform a Warrantless Search

         Hernandez-Mieses contends that the agents' actions were tainted from the start by a pre-existing intention to perform a warrantless search of his entire home before they had any basis for doing so. Because he did not raise this argument before the district court, it may well be deemed waived. See, e.g., United Statesv.Reyes-Rivas, 909 F.3d 466, 470 n.2 (1st Cir. 2018). But even if it was not forfeited or waived, the argument is plainly without merit. As a matter of law, "[a] police officer's subjective motive, even if improper, cannot sour an objectively reasonable search." Spencerv.Roche, 659 F.3d 142, 149 (1st Cir. 2011). We also reject the factual premise of Hernandez-Mieses's argument. To support his contention that the agents harbored a pre-existing intention to perform a warrantless search, Hernandez-Mieses points to Nazario's briefing of the other agents, during which Nazario told them that "there was a high probability of finding weapons, narcotics, and currency in the house." But, as Nazario explained during his testimony, this statement can reasonably be understood as a notice or reminder to his colleagues that they were likely to ...


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