USCA1 Opinion

March 25, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2010
UNITED STATES,
Appellee,
v.
ALEXANDER LOPEZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________
William T. Murphy was on brief for appellant.
_________________

Zechariah Chafee, Assistant United States Attorney, with w

_________________
Lincoln C. Almond, United States Attorney, was on brief for appelle
_________________
____________________
March 25, 1993
____________________

BOUDIN, Circuit Judge.

_____________
Lopez

was convicted

distribute and
21

U.S.C.

of

In the district court, Alexander

possessing cocaine

with conspiracy
841(a)(1), 846.

with intent

to commit the
The

to

same offense.

jury deadlocked

on two

other counts, later dismissed, charging Lopez with possessing

a

short barrel shotgun and with its use in drug dealing.

U.S.C.

5861(d);

18 U.S.C.

Lopez contests only the

924(c)(1).

On this

26

appeal,

district court's refusal to suppress

evidence obtained at the time of his arrest.

We affirm.

The pertinent facts, developed mainly at the suppression

hearing, can be briefly stated.

22,

Early on the morning of June

1991, Charles Perry, a long-time cocaine user, went to a

building in

Providence, Rhode

The building was a decrepit

Island, to

purchase cocaine.

three-story tenement and, on the

second floor, there was a kitchen, an adjoining bathroom, and

three adjoining bedrooms available for rent on a weekly basis
to

tenants,

bathroom.
used

by

who

were

expected to

share

the

kitchen and

On the morning of June 22, one bedroom, previously

prostitutes,

was

empty;

respectable tenant away at work;

one was

occupied

by

and the last was used by

cocaine dealer named Blackie for whom Lopez worked.

Arriving at

the second floor by the

back stairs, Perry

found the door to the kitchen open and entered

and another

man.

Perry bought

Lopez and left to

a small bag

inject the cocaine.

to find Lopez
of cocaine from

Several

hours later,

-2-2-

Perry returned.
negotiated

downstairs

and

Finding the second floor door now closed, he

sale

from

found

the

that

outside,
he

had

took
bought

his

purchase

baking

soda.

Returning to the
yelled

until

unidentified

second floor,
admitted.

man present

he pounded on

There
on his

he

the door

and

Lopez,

the

found

first visit,

and Blackie.

When Perry began to yell, Blackie leveled a sawed-off doublebarrel shotgun at Perry and told him to leave.
Retreating to the yard outside, Perry continued to yell.
Blackie left, threatening Perry as he did so.
someone call

the

police

to

report

that

Perry then had

Perry

had

been

threatened with a sawed-off shotgun.

Lopez emerged and gave

Perry

a packet

cars, responding

radio

alert, began

of cocaine.

Police

to arrive.

Pointing

to the

to a

building,

Perry then described to several officers a male wearing green

camouflage trousers and no shirt.
separately, heard
the

yard behind

Officer Tombs, who arrived

the description and saw

the building,

Lopez standing in

without a shirt

and wearing

green camouflage pants, apparently holding an object.

Tombs, clad

in uniform,

called on Lopez

to halt.

Instead, Lopez dashed into the building and ran to the second
floor.
and

Tombs pursued, broke through

arrested

handcuffed

Lopez

in

the

two intervening doors,

little

bedroom.

As

Tombs

Lopez, a radio fell over, and six tiny baggies of

cocaine were disclosed.

Other officers

-3-3-

appeared, including

Officer

Vanderhorst, and

Vanderhorst,
missing.
bag,

entering

a search

the

He stood on the

which proved

for the

bathroom,

looking in again,

he saw a

down,

possibly using

ceiling panel

floor.

and spilled

From handcuffing

bags of

Then,

ceiling collapsed

saw

ceiling

toilet, peered in, and

to have smaller

shotgun ensued.
tile

saw a big

cocaine inside.

gun butt.

As he climbed

as a

hand-hold, the

a sawed-off shotgun

onto the

to discovery of the gun, only a few

minutes passed.
After a

suppression hearing before

trial, the district

court refused to suppress the shotgun or the cocaine found in

the

bedroom

and the

bathroom.

The

court found

that the

arrest leading to the discovery of cocaine in the bedroom was

based upon probable cause
object

to

the search

standing, the court

of

the bathroom.

On the

no outside lock, and

of privacy.

offered as evidence

standing to
issue of

found that the bathroom was available to

anyone on the premises, had

no expectation

and that Lopez had no

The

at trial.

cocaine
Lopez was

engendered

and shotgun

were

convicted on

the

cocaine counts.
On this appeal, Lopez argues
of the apartment, he

that as an authorized user

had standing to object to

the bathroom

search under

United States
_____________

Cir. 1982).

In turn,

court's suppression

v. Irizarry,
________

the government

ruling

primarily

673 F.2d

554 (1st

defends the

district

by

lack

arguing

of

-4-4-

standing, citing United States v. Thornley, 707 F.2d 622 (1st

_____________
________
Cir. 1983).
argues that
the

shotgun

standing

As a second

string to its

bow, the government

exigent circumstances justified

without

issue

awaiting

a close

call and

warrant.
prefer

the search
We

for

think the

to affirm

on the

merits of the Fourth Amendment claim.

It is
only

common ground

unreasonable

that the Fourth

searches and

search is unreasonable absent

magistrate
excuse

upon

the lack

a showing
of a

the

warrant

requirement.

seizures;

that

normally a

a warrant issued by a
of probable

warrant,

bring the case within one or

Amendment forbids

cause; and

the police

neutral
that to

must ordinarily

more of a list of exceptions to

See
___

generally
_________

Coolidge v.
________

New
___

Hampshire,
_________

403

exceptions are
incident

to

U.S.

443, 477-78

huge, such as
arrest,

place.

Most

arrest for

which

bedroom--assuming probable
of the

(1971).

few of

felony and

embrace Lopez'

arrest

the

search
in

the

cause to pursue him

in the first

exceptions, however, are

narrower and

more complex.
The exception with
excuses the
exist,
Although

which we are concerned in

lack of a warrant

requiring
the

speed

most

and

frequent

this case

where "exigent circumstances"

making

delay

example

is

improvident.

the

threatened

destruction of evidence, e.g., Cupp v. Murphy, 412

___
____
______
294-96

(1973),

solid

line

of

cases

U.S. 291,

finds

exigent

-5-5-

circumstances where the safety of law enforcement officers or

the

general public is

387 U.S.

threatened.

E.g.,
___

Warden v. Hayden,
________ ______

294, 298-99 (1967); Criminal Procedure Project, 80

___________________________

Geo. L.J. 939, 987 (1992) (collecting numerous cases).

This

circuit has so
F.2d

held.

E.g., United States

___
_____________

800, 805 (1st Cir.

v. Rengifo,
_______

1988), cert. denied,

____ ______

858

490 U.S. 1023

(1989).
The

question here, then,

reasonable basis to believe

is whether

that a threat to safety

of an urgency and magnitude that

of the kind that

occurred.

issues

are

this formula.

perception

of danger,

knew at the time.

is whether

In

judged by what

One is

In this

the police

the officers

Fourth Amendment the

justified their behavior.

existed

truth, two different

The other, a legal issue for

under the

had a

would justify a warrantless

search

embraced in

the police

saw and

the courts,

perceived threat

case, what the

saw and knew is largely apparent from the record.

officers
By a close

margin, we think their perception justified their conduct.

The most important element is that the police had reason
to believe that
had

Lopez had a sawed-off shotgun

been used only shortly

Blackie had

done the threatening, not

unknown to the
have
large.

before to threaten

officers; if

increased
Thus, the

since

Blackie

police had ample basis for

-6-6-

Perry.

That

Lopez, was apparently

they had known,

their concern

nearby, which

it could
was still

only
at

believing that

an extremely dangerous

weapon was lodged

close at hand

and

should be recovered as promptly as possible.

It

is

hard

to

immediate danger.
risks, it
and

think

that

Lopez

Although one in

appears that Lopez

posed

custody may yet

was handcuffed in

that other officers were there

occurred.

himself

an

present

the bedroom

when the bathroom search

Still, the police had no assurance that Lopez was

acting alone (in fact, he was not), or that the apartment was
secure
floor).

(there
Officer

with Lopez in
the

were actually

entrances

Tombs thought that

the second

building--a

two

on the

others might have

floor apartment.1

dilapidated,

second

multi-tenant

The nature

been
of

structure--lent

further weight to a reasonable concern that the shotgun might

be hidden nearby, recovered by others, and used again.
The nature of the search is also important.
because

Lopez lacked "standing" as

This is not

to the bathroom area (we

assume arguendo that he had standing), but because the degree

________
of

intrusion has

police action.

bearing on

It is one

the

reasonableness of

thing to break into

the

and search a

family home, another to frisk an arrested suspect, another to

search a car, and

yet another to make a

protective sweep of

____________________
1Tombs testified at the suppression hearing that when he
reached the second floor in pursuit of Lopez, he heard
within:
"Footsteps, fast moving footsteps.
I couldn't
determine how many people, how many, you know, subjects were
in the house.
But there was footsteps running about the
house, inside the door."
-7-7-

an already entered
each

such

case,

proportionality

building to uncover
the
of

extent

of

response

other suspects.

the
to

intrusion,
need,

and

inform

In
the
the

constitutional judgment.
Here, the
the
an

intrusion, although not minimal, was limited:

officer saw the opening in

open door, entered the empty room, and with little effort

saw the

butt of the weapon.

private residence;
And

the bathroom ceiling through

the

search

There was no new

the police were lawfully in the kitchen.

can be

justified

evidence or even contraband

as

one

swiftly recovered, a search for

building might

be needed.

not merely

but for a dangerous weapon

building where others might gain access to it.

were not

entry into a

Thus,

for
in a

If the weapon

others outside the

this was

a proportionate

search, limited

in its range,

specific in

its object,

and

justified by exigent circumstances.

There is considerable case law on exigent

circumstances

but, as one might expect in this area, the cases are

heavily

dependant on the

circuit

appears to be
hotel

facts.

room to the extent

Irizarry, in
________

believed to be
warrantless

in this

Irizarry, upholding a warrantless search

________

armed "fourth person"

558.

The closest case

needed to assure

did not

fourth person

hiding in the room, is a

search, but

that a suspected

remain within.

which the

other circuits

of a

673 F.2d

at

was reasonably

stronger case for a

on facts

closer in

-8-8-

strength to our

own have

found them strong

United States v. Queen, 847

______________
_____
United States
_____________
1973).2

v. McKinney,
________

F.2d 346, 353

477 F.2d

We agree, cautioning

enough.

(7th Cir. 1988);

1184, 1186

that our own

E.g.,
___

(D.C. Cir.

facts may press

close to the outer limit of the Fourth Amendment.

Lopez'
original

other

pursuit,

swiftly.

the

and

this

to

the

lawfulness of

claim

can

be

answered

the
more

If the original entry was unlawful, the seizure of

the cocaine in the

of

challenge is

bedroom might be suppressed as

poisonous tree,

see
___

the fruit

generally Wong Sun

_________ _________

v. United
______

States, 371 U.S. 471, 484 (1963), and the ban might extend as
______
well (we need not decide the point) to the
the

bathroom

station.

and

Lopez

volunteered statement

says that the original

because the attempted, and ultimately

Lopez was not

evidence found in
at

the

police

pursuit was unlawful

successful, seizure of

based on probable cause to believe that he had

committed a crime.
On the
believe

contrary, the police

that Lopez was the man who

Perry, even though in the

who

had

had a reasonable

held

the

had leveled a shotgun at

event it turned out to be

weapon.

basis to

Office

Tombs,

Blackie

arriving

to

investigate the crime, heard Perry describe an Hispanic male,

____________________
2McKinney,
peculiarly
on
point,
sustained
the
________
warrantless search of a hotel room--while the occupant was
out--after a bellman observed a sawed-off shotgun on the
table.
-9-9-

shirtless and in camouflage pants, and saw a man fitting this

description
pointed.

standing near
When

Lopez instead
gave

Tombs in
fled.

Tombs reason

the building

to which

uniform called

These

on Lopez

that Lopez

was the

United States v.
______________

Vasquez,
_______

534 F.2d

cert. denied, 429

____ ______

U.S. 979

(1976), and the

entry

under

generally
_________

United States
______________

to halt,

circumstances including

to believe

justified

Perry had

the

"hot

v.

1142, 145

pursuit"

Santana, 427
_______

flight
culprit,

(5th Cir.),

belief in

turn

doctrine,
U.S.

38,

see
___
42-43

(1976), and ultimately arrest.

In sum, the shotgun and cocaine evidence was permissibly
seized

and

introduced

therefore valid.
court is affirmed.
________

at

trial,

and

the

Accordingly, the judgment

conviction

is

of the district

-10-10-