United States v. Hector Hernan Hoyos

868 F.2d 1131 57 USLW 2567 UNITED STATES of America, Plaintiff-Appellee, v. Hector Hernan HOYOS, Defendant-Appellant. No. 87-5060. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 1, 1988. Decided March 6, 1989. Michael D. Abzug, Los Angeles, Cal., for defendant-appellant. James L. McGinnis, Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before WALLACE, ALARCON and BEEZER, Circuit Judges. ALARCON, Circuit Judge: 1 Hector Hernan Hoyos (Hoyos) appeals from the judgment of conviction for conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841 (a)(1) (1982). After the denial of his suppression motions, Hoyos entered a plea of guilty conditioned upon his right to appeal the adverse rulings. Subsequently, he filed a motion to withdraw his guilty plea. This motion was also denied. 2 Hoyos seeks reversal on the following grounds: 3 (1) He was arrested without probable cause. 4 (2) The protective sweep of his residence was an unreasonable search. 5 (3) The district court erred in concluding that probable cause supported the issuance of a search…

Hector Hernán Hoyos (Hoyos) appeals from the judgment of conviction for conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. § 841 (a)(1) (1982). After the denial of his suppression motions, Hoyos entered a plea of guilty conditioned upon his right to appeal the adverse rulings. Subsequently, he filed a motion to withdraw his guilty plea. This motion was also denied.

Hoyos seeks reversal on the following grounds:

We affirm because we have concluded that each of these contentions is without merit. We address each issue and the facts pertinent thereto under separate headings.

I.

EXISTENCE OF PROBABLE CAUSE TO ARREST HOYOS

On September 12, 1986, Los Angeles County Deputy Sheriff Thomas Mulligan, 1 received an anonymous telephone call that informed him that persons living at 356 Eagle Nest, Diamond Bar, California, were dealing in narcotics. The residents did not appear to be employed. Periodically, strangers in new cars would arrive at the residence and stay for short periods of time. Deputy Mulligan was also informed that the Glendale Police Department was at that location approximately five months earlier.

Deputy Mulligan contacted a narcotics…

concurring in part and dissenting in part:

After arresting Hoyos police officers broke the lock on his front door and entered his house to perform a protective sweep. Breaking in to search a house after a lawful arrest outside is qualitatively different from searching a house after a lawful arrest inside. Case law regarding protective sweeps does not justify the officers’ decision to enter and conduct a war-rantless search of Hoyos’s house.

A

Whether there is a distinction between protective sweeps after arrest inside and outside a house has been an open question. 1 The sound logic of the Fourth Amendment compels a distinction. As the Supreme Court repeatedly has recognized, “ ‘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 , 100 S.Ct. 1371, 1379 , 63 L.Ed.2d 639 (1979) (quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125, 2134 , 32 L.Ed.2d 752 (1972)). Or, as we said recently in United States v. Winsor, 846 F.2d 1569 , 1574 n. 5 (9th Cir.1988) (en banc), “The sanctity of the home enjoys special solicitude in Fourth Amendment jurisprudence.…