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United States v. Serrano-Acevedo

United States Court of Appeals, First Circuit

June 13, 2018

UNITED STATES, Appellee,
v.
HECTOR SERRANO-ACEVEDO, Defendant, Appellant. UNITED STATES, Appellee,
v.
VIRGILIO DIAZ-JIMENEZ, 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 Hector Serrano-Acevedo.

          James L. Sultan, with whom Kerry A. Haberlin and Rankin & Sultan were on brief, for appellant Virgilio Diaz-Jimenez.

          Nicholas W. Cannon, 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 Lynch, Kayatta, and Barron, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         We address in this case important questions of Fourth Amendment protections in a person's home. As we did in United States v. Delgado-Pérez, 867 F.3d 244 (1st Cir. 2017), we conclude that the government overstepped the mark and that a motion to suppress the fruits of a warrantless search of a defendant's home in Puerto Rico should have been granted.

         Virgilio Diaz-Jimenez ("Diaz") and Hector Serrano-Acevedo ("Serrano"), after a joint trial, were found guilty of armed bank robbery, in violation of 18 U.S.C. § 2113, and possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924. Both defendants challenge their convictions, arguing that key portions of the evidence introduced against them were improperly admitted.

         Diaz argues that the government's warrantless search of his home violated his Fourth Amendment rights and that the district court erred by denying his motion to suppress the evidence uncovered during that search. Finding that the government's search does not fit within the protective sweep or voluntary consent exceptions under Fourth Amendment doctrine, the only even arguably relevant exceptions to the warrant requirement, we hold that the search of Diaz's home was unconstitutional. The evidence uncovered during that search was central to the prosecution's case at trial, rendering this error prejudicial. We vacate Diaz's conviction and remand for further proceedings consistent with this opinion.

         Serrano, the other defendant, argues that several testimonial statements made during the trial, some of which referenced statements made by a confidential informant who did not testify, were impermissible hearsay testimony. If there was any error, it was harmless, so we affirm Serrano's conviction.

         I. Facts

         We review the district court's "legal conclusions involved in denying a motion to suppress the evidence de novo and its findings of fact for clear error." Delgado-Pérez, 867 F.3d at 250 (quoting United States v. Marshall, 348 F.3d 281, 284 (1st Cir. 2003)). "On a motion to suppress evidence seized on the basis of a warrantless search, the presumption favors the defendant, and it is the government's burden to demonstrate the legitimacy of the search." Id. (quoting United States v. Winston, 444 F.3d 115, 123-24 (1st Cir. 2006)).

         Two armed men entered the Oriental Bank in San Lorenzo, Puerto Rico around 8:30 AM on June 17, 2013. The first gunman brandished his firearm and ordered the bank's security officer to "kneel down." The robbers told everyone in the bank to get on the ground. The second gunman then ordered the bank's employees to open the vault. After the bank employees turned over the money in the vault area to the robbers, the gunmen left the bank and drove away in a white van.

         The Puerto Rico Police Department provided a description of the van and its likely escape routes over the police radio. Officer Hector Ortíz-Alicia, hearing this, drove towards one of the possible escape routes. Once in the area, he saw a white van stopped by the side of the road. Ortíz-Alicia testified at trial that an armed individual got out of the van and, despite Ortíz-Alicia's orders to stop, fled into a grassy area nearby. Other testimony at the suppression hearing was that two people were seen leaving the van.

         Ortíz-Alicia requested backup. Police searched the area with the help of a helicopter, but were unable to find the armed individual. The FBI and the Immigration and Customs Enforcement ("ICE") Task Force reported to the scene. Agent Aristedes Vázquez-Díaz from the ICE Task Force reported to Agent Félix Rivera from the ...


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