United States v. Juan Castillo, Aka: Luis Hong Rojas, United States of America v. Antonio De La Renta

dissenting:

I dissent because I believe that the war-rantless search of De La Renta’s apartment was not justified by exigent circumstances. A protective sweep without a warrant may be justified by exigent circumstances only if officers reasonably believe that other people might be on the premises who could pose a danger or who could destroy evidence. See United States v. Whitten, 706 F.2d 1000, 1014-16 (9th Cir.1983). The officers may not rely on speculation about what circumstances might occur. Rather, they must be able to articulate facts specific to the suspect or the scene of the arrest demonstrating a threat of violence or destruction of evidence before departing from the normal procedure of obtaining a warrant prior to the search. See United States v. Alvarez, 810 F.2d 879, 881 (9th Cir.1987); United *1089 States v. Spetz, 721 F.2d 1457, 1467 (9th Cir.1983); see also Arkansas v. Sanders, 442 U.S. 753, 759-60 , 99 S.Ct. 2586, 2590-91 , 61 L.Ed.2d 235 (1979). I do not believe that this case presented such exigent circumstances.

The majority intimates that the mild exigency test laid out in United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.) (en banc), cert. denied, 469…

In these consolidated appeals, Antonio De La Renta (De La Renta) and Juan Castillo, also known as Luis Hong Rojas (Castillo) (collectively appellants) seek reversal of their convictions for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841 (a)(1) (1982) and for being aliens in possession of a firearm in violation of Appendix II, 18 U.S.C. § 1202 (a)(5) (Supp.1985). 1 They also challenge the judgment requiring forfeiture of $134,998 pursuant to 21 U.S.C. § 853 (a) (Supp.1985).

Appellants contend that the district court erred in denying their motion to suppress evidence seized during the search of De La Renta’s apartment. In addition, Castillo argues that the district court committed reversible errors during his trial and that the evidence was insufficient to support the jury’s verdict. In addressing these contentions we must answer the following questions:

I.

FACTS

On June 29, 1986, a warrant for De La Renta’s arrest was executed at De La Ren-ta’s apartment. The arrest team was comprised of federal and local law enforcement officers. When De La Renta opened the door, two officers of the Los Angeles Police Department (LAPD), Detectives Ray Martin…

866 F.2d 1071 UNITED STATES of America, Plaintiff-Appellee, v. Juan CASTILLO, aka: Luis Hong Rojas, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Antonio DE LA RENTA, Defendant-Appellant. Nos. 87-5042, 87-5045. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 5, 1987. Decided April 22, 1988. As Amended on Denial of Rehearing and Rehearing En Banc Dec. 2, 1988. As Amended Jan. 11, 1989. Order and Second Amended Opinion Feb. 1, 1989. Victor Sherman, Brian O'Neill, Santa Monica, Cal., for defendants-appellants. Thomas K. Buck, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before ALARCON and NELSON, Circuit Judges, and ROSENBLATT, * District Judge. ALARCON, Circuit Judge. 1 In these consolidated appeals, Antonio De La Renta (De La Renta) and Juan Castillo, also known as Luis Hong Rojas (Castillo) (collectively appellants) seek reversal of their convictions for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841 (a)(1) (1982) and for being aliens in possession of a firearm in violation of Appendix II, 18…