Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

No. 89-30321.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Eastern District of Washington, No. CR-89-128-AAM; Alan A. McDonald, District Judge, Presiding.

E.D. Wash.

AFFIRMED.

Before HUG and D.W. NELSON, Circuit Judges, and WALKER,^*  District Judge.

MEMORANDUM^** 

Based on police discovery of two kilograms of cocaine in her house, defendant Diaz-Espindola was convicted of possession of cocaine with intent to distribute under 21 U.S.C. § 841(a) (1) and conspiracy under 21 U.S.C. § 846. On appeal, Diaz-Espindola claims that the district court erred in failing to suppress the two kilograms of cocaine. We affirm the conviction.

Defendant argues that the officers violated the "knock and announce" statute because they did not announce their purpose prior to entering the house and did not allow any time for the occupants to respond to them before their entry. The Government counters that the officers complied with the statute's requirements by knocking on the door casing of the (according to Officer Cyr's testimony alone) "wide open" door, announcing "policia" as they entered and thereafter explaining their purpose in more detail. Further, the Government contends that the officers' acts maintained the statute's dual purposes of protecting individuals' privacy and ensuring officer safety and therefore did not violate the statute.

We are unpersuaded by defendant's argument. This Circuit's position was made clear in United States v. Valenzuela, 596 F.2d 1361 (9th Cir. 1979). In that case, we stated: "we have held that entry through an open door is not a 'breaking' within the meaning of [18 U.S.C. § 3109]." Id. at 1365; see also id. at 1365 n. 3; United States v. Scharf, 421 F.2d 1239, 1240 (9th Cir. 1970). Other Circuits also have adopted this view of section 3109. See, e.g., United States v. Salter, 815 F.2d 1150, 1152 (7th Cir. 1987); United States v. Johns, 466 F.2d 1364, 1365 (5th Cir. 1972). In short, we find no statutory violation in this case.

Defendant also contends that the initial search of her residence, during which the cocaine was located, was illegal because it was conducted in the absence of exigent circumstances. The Government counters that the warrantless search was justified because "on the totality of the circumstances," the officers had probable cause and a good faith belief that the evidence would be immediately destroyed.

A warrantless entry, search or seizure is only justified " [w]hen police officers, acting on probable cause and in good faith, reasonably believe that ... evidence or contraband will imminently be destroyed...." United States v. Kunkler, 679 F.2d 187, 191 (9th Cir. 1982). A court must review the "totality of the circumstances" in order to ascertain whether a police determination of exigency was reasonable. Id.

In our view, exigent circumstances did not exist. This case is distinguishable from those Ninth Circuit cases in which exigent circumstances were found. The officers knew nothing about Diaz-Espindola or whether someone was expected to return, there was no indication that the occupants were nervous or about to destroy evidence, compare Kunkler, 679 F.2d at 192, or that they had a propensity for violence, compare United States v. Castillo, 866 F.2d 1071, 1081 (9th Cir. 1988), and the officers never observed any counter surveillance, compare United States v. Hicks, 752 F.2d 379, 384 (9th Cir. 1985). Consequently, we find that the initial warrantless search of Diaz-Espindola's residence was invalid.

Defendant argues that the inclusion of the cocaine discovery in the affidavit for a search warrant was determinative of the magistrate's finding of probable cause. Absent that evidence, she claims there was no "substantive basis" for a probable cause determination.

We cannot find, using our limited power, that the magistrate did not have a substantial basis for a probable cause finding. Diaz-Espindola was linked to Trujillo's drug trafficking by: (1) Trujillo's visit to Diaz-Espindola's after he indicated he had to check with his source, "la mujer," regarding the cocaine's availability; and (2) his delivery of drugs to an undercover agent soon after he left defendant's residence. The timing of and circumstances surrounding these visits alone constitute a substantial basis for the magistrate's determination of probable cause.

Accordingly, we hold that the magistrate had a substantial basis for his probable cause finding, aside from the evidence of the cocaine discovery, and that the search pursuant to the warrant was accordingly valid.

Finally, Diaz-Espindola contends that the district court erred in allowing the cocaine to be admitted into evidence under the "inevitable discovery" doctrine. The instant case is analogous to Nix v. Williams, 467 U.S. 431 (1984), in which the "inevitable discovery" doctrine was first announced and applied to admit evidence: (1) an ongoing investigation and application for a warrant to search defendant's residence were both in process before the cocaine discovery; and (2) the cocaine would have been discovered independently by the officers who executed the search warrant since it was in plain view.

The circumstances which made the cocaine inevitably discoverable did not stem solely from the initial search. While some officers set out to "secure" the defendant's house, others sought a warrant to search it based on other facts suspiciously linking Diaz-Espindola with Trujillo's drug trafficking. Even if the officers had not located the cocaine during their initial search, they surely would have found it when they performed their warranted search since it was lying on the edge of the bed, in the line of sight of anyone who entered the room.

Therefore, we hold that any taint from the inclusion of the cocaine discovery in the affidavit was dissipated since the officers would have inevitably discovered it during their valid, warranted search.

CONCLUSION

We AFFIRM the district court's determination that the evidence is admissible and accordingly uphold the defendant's conviction.

AFFIRMED.