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United States v. Delgado-Perez

United States Court of Appeals, First Circuit

August 16, 2017

UNITED STATES OF AMERICA, Appellee,
v.
RAMON DELGADO-PEREZ, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge]

          Edwin Edgardo León-León 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 Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         Ramón Delgado-Pérez ("Delgado") pleaded guilty to being a prohibited person in knowing possession of a firearm or ammunition, in violation of 18 U.S.C. § 922(g). In doing so, however, Delgado reserved his right to challenge, on appeal, the denial of his motion to suppress certain evidence, including the loaded firearm mentioned in the indictment, found when law enforcement searched his home. He now contends that his conviction must be overturned because the District Court erred in denying that motion. We agree, and so we reverse and remand.

         I.

         Under 18 U.S.C. § 922(g), it is a crime for certain individuals "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Section 922(g)(1) defines persons covered by this prohibition as those "who ha[ve] been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year."

         On February 26, 2014, Delgado was indicted in the District of Puerto Rico for being in knowing possession of a loaded firearm, in violation of § 922(g), by virtue of his previous conviction for a crime punishable by imprisonment of a term exceeding one year. Specifically, the indictment charged Delgado with violating § 922(g) because Delgado possessed a "Sig Sauer" pistol loaded with ten rounds of nine-millimeter caliber ammunition.

         Following the indictment, Delgado pleaded not guilty. But, he later changed his plea to guilty. Prior to changing his plea, however, Delgado filed a motion to suppress evidence recovered "in violation of the U.S. Constitution and any fruits recovered thereof."

         Delgado argued in his suppression motion that the search of his residence that turned up the loaded firearm referenced in the indictment violated the Fourth Amendment because he never consented to a search of his residence, the evidence seized was not in plain view, and no other exigent circumstances justified the search of the residence. The government, in its opposition to Delgado's motion, contended that the motion should be denied because Delgado voluntarily consented to the search of his residence and because, alternatively, the officers acted in good faith in undertaking the non-consensual warrantless search of his home.

         A magistrate judge conducted a hearing on the suppression issue, which was held over the course of two days: October 22, 2014, and November 10, 2014. In the Magistrate Judge's report and recommendation following the hearing, the Magistrate Judge described the events that transpired as follows.

         On February 20, 2014, at least a dozen law enforcement officers arrived at Delgado's residence in Puerto Rico with a New York state warrant for his arrest for trafficking cocaine through the United States mail. When the officers arrived outside Delgado's residence and announced their presence, there was initially no answer. The officers began to open a rebar gate outside the residence, at which point Delgado opened a window and told the officers, through the window, that he was home and was going to open the door. Delgado retrieved a key, came outside, opened the rebar gate for the officers and indicated to the officers that he was by himself.

         Once Delgado was outside, the officers undertook a protective sweep of the residence, which, according to one officer, is their standard practice to ensure officer safety and prevent destruction of evidence. An officer also testified that, while Delgado told the officers there was no one else present in the home, the officers did not take his word and "had to verify that there was no one else in the residence who could harm them." The agents knew that Delgado was a convicted felon and drug trafficker, and that "drug trafficking goes hand in hand with weapons." There were security cameras that could permit someone inside the house to watch the movements of the officers, and the configuration of Delgado's house included an apartment on the premises and a locked rebar fence and gate outside of the house.

         During the protective sweep, the officers noticed a firearm magazine on top of a dresser in a room off of an interior hallway. Once the sweep concluded, an officer asked Delgado if there were any firearms in the residence, to which Delgado responded in the affirmative and told the officer he had a firearm and provided its location -- a dresser drawer. An officer retrieved a loaded firearm -- the Sig Sauer referenced in the indictment -- from inside the dresser drawer and rendered it safe.

         An officer then asked Delgado for consent to search the residence. Delgado consented to the search verbally, but he declined to sign a consent form.

         The Magistrate Judge based the above-recited findings on hearing testimony provided by two United States Postal Inspection Service officers, which the Magistrate Judge determined to be credible. On the basis of "the above summarized scenario and circumstances" reflected in the officers' testimony, the Magistrate Judge concluded that the protective sweep was justified. Thus, the Magistrate Judge found that the magazine found on the dresser during the protective sweep need not be suppressed.

         The Magistrate Judge also found that, based on the magazine recovered during the protective sweep, it was "reasonabl[e]" for law enforcement to "infer[] the firearm could be inside the residence and accessible to someone else inside the house." The Magistrate Judge thus concluded that "it was reasonable for the agents, " after Delgado told them of the firearm's location, to seize it from the dresser and render it safe.

         In addition, the Magistrate Judge found that, following the protective sweep, Delgado consented to the search of the full residence. In so concluding, the Magistrate Judge determined that the two officers' mutually consistent testimony was more credible than Delgado's. And the Magistrate Judge found that Delgado's consent was not the product of coercion.

         The Magistrate Judge advised the parties that "failure to file [objections] within the specified time waives the right to appeal this order, " based on local rules applicable in the District of Puerto Rico. See D.P.R. Civ. R. 72(d). Neither party so objected. Several months later, the District Court adopted the Magistrate Judge's report and recommendation and denied Delgado's motion to suppress.

         On June 16, 2015, Delgado pleaded guilty to violating 18 U.S.C. § 922(g). At the change of plea hearing, the District Court recognized that Delgado was, in pleading guilty, reserving the right to appeal the denial of his motion to suppress.

         The District Court sentenced Delgado to time served, ordered three years of supervised release, and ordered the forfeiture of the loaded firearm described in the indictment. This appeal followed. In addition to his counsel's brief to us, in which Delgado challenged his conviction on the ground that he did not consent to "the search of his residence and its premises" following the protective sweep, Delgado also filed a pro se supplemental brief. In his pro se supplemental brief, Delgado challenges the lawfulness of the protective sweep and contends that both the magazine and the loaded firearm must be suppressed as fruits of that unlawful sweep.[1]

         II.

         Before turning to the merits of the contentions that Delgado makes on appeal, we first consider whether Delgado waived his right to make them on appeal. And that consideration requires us to address ...


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