OpenJurist

855 F2d 862 People of Territory of Guam v. Sa Fegurgur

855 F.2d 862

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

The PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee,
v.
Raymond S.A. FEGURGUR, Defendant-Appellant.

No. 87-1366.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 1988.
Decided Aug. 1, 1988.

Before CHOY, FARRIS & WIGGINS, Circuit Judges.

1

MEMORANDUM**

OVERVIEW

2

Raymond Fegurgur ("Fegurgur") appeals from his conviction for armed robbery, possession of a firearm without an identification card, possession of an unregistered firearm, and carrying a concealed firearm without a concealed firearm identification card. Fegurgur argues that the trial court: 1) improperly denied his motion to suppress evidence uncovered pursuant to a warrantless arrest at his home, and 2) improperly refused to allow evidence of a failed polygraph by a key government witness.

BACKGROUND

3

At 1:15 P.M. on September 9, 1985, Fegurgur, David Torres, and Ricardo Marquez robbed the Royal Mart in Anigua, Guam. Detectives Cruz and Camacho, acting on information from Torres and Marquez's sister, arrested Fegurgur at his home at approximately 10:00 that evening. A search incident to arrest uncovered a pistol. On November 21, 1985, the superior court denied Fegurgur's motion to suppress evidence from the arrest.

4

Torres pled guilty and agreed to testify against Fegurgur and Marquez. Prior to trial, the government noted inconsistencies in his proposed testimony. Upon the government's request, Torres agreed to submit to a polygraph. The examiner expressed his opinion that Torres was being "deceptive" about who held the gun. Pursuant to its disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), the government provided this information to defense counsel. On the first day of trial, the government made a motion in limine to exclude any reference to Torres having taken the polygraph, which the court ultimately granted. A jury convicted Fegurgur, who appealed to the Appellate Division of the District Court of Guam. On November 12, 1987, the court affirmed the convictions. Fegurgur timely appeals.

ANALYSIS

5

I. The Constitutionality of the Warrantless Arrest

6

The warrantless arrest of an individual in his or her home violates the fourth amendment, unless exigent circumstances justify bypassing the warrant requirement. See Payton v. New York, 445 U.S. 573 (1980). No warrant is required to arrest an individual in a "public" place. See United States v. Watson, 423 U.S. 411 (1976).

A. Point at which Police Arrested Fegurgur

7

The evidence indicates that at 1:15 P.M. on September 9, 1985, three men robbed a store at gunpoint. At approximately 2:30 P.M., police arrested David Torres, who admitted involvement in the crime. He identified his accomplices as Rick Marquez and Marquez's brother-in-law, whom he knew only as "Ray". He described "Ray" as large with a dark complexion, wearing blue cut-off shorts and a faded camouflage shirt, and with two tattoos: a "zigzag face" on his arm, and Budweiser symbol on his back. Detectives went to Marquez's house and spoke to his sister, who informed them that Marquez had left with Raymond Fegurgur. She also described Fegurgur's residence.

8

At approximately 10:15 that evening, two detectives and two uniformed police officers arrived at Fegurgur's home. The uniformed officers covered the sides of the duplex while the detectives approached the front door. The detectives were dressed in civilian clothes with police identification badges attached to their shirts. The main door was open, and a screen door was closed. The detectives could see a man (Fegurgur) slumped in a chair in front of the television. After the detectives knocked several times and called into the apartment, Fegurgur responded. As Fegurgur stood, Detective Cruz asked him if his name was Ray. He nodded affirmatively. As Fegurgur approached the door, the detectives identified themselves as police officers, and Detective Camacho opened and held open the screen door. Fegurgur was wearing blue cut-off shorts, and the detectives noticed a "zigzag" tattoo on his arm. The detectives asked if he had a "Budweiser" tattoo on his back, and if so, might they see it. When he responded affirmatively, the detectives asked him if he would step outside. Fegurgur stepped outside while displaying the tattoo, at which point he became belligerent. The detectives told him he was under arrest, conducted a pat down search incident to arrest, and uncovered a pistol from inside his pants.

9

Fegurgur contends that he was constructively arrested at the moment the detectives identified and addressed him while holding his door open; that is, while he was still inside his home. We disagree. Whether or when an arrest has occurred depends upon an objective determination of whether an innocent person, viewing all of the circumstances, would reasonably think that he or she was under arrest. See United States v. Al-Azzawy, 784 F.2d 890, 892-93 (9th Cir.), cert. denied, 476 U.S. 1144 (1986); See also Michigan v. Chesternut, 108 S.Ct. 1975, 1979 (1988) (defining test for when person "seized" for fourth amendment purposes). An important factor is the defendant's freedom of choice to terminate or continue the encounter. See Al-Azzawy, 784 F.2d at 892; We have also described the duration of the detention as "critically important." See United States v. Patterson, 648 F.2d 625, 632 (9th Cir.1981) ("If, under the circumstances, an innocent person would reasonably expect to be released after brief questioning, we are less likely to find an arrest."). In the present case, Fegurgur could not reasonably have believed he was under arrest while conversing with the police from inside his home. The agents neither initiated nor maintained the encounter through a threatening show of authority. The fact that Fegurgur's acquiescence to their questioning ultimately led to his stepping out of his home and subsequent arrest does not render the detectives' actions coercive, nor does it detract from a determination that his cooperation was voluntary.1 See Chesternut, 108 S.Ct. at 1979 (must "assess the coercive effect of police conduct").

10

B. Constitutionality of the Warrantless Arrest

11

As noted above, police must have a warrant to arrest a person in his or her home; no warrant is required to arrest a suspected felon in a public place. Although the evidence is conflicting as to whether Fegurgur had stepped completely out of his home at the time of arrest, the trial court found that he had voluntarily left his home prior to arrest. This court reviews the trial court's findings of fact under the clearly erroneous standard. See United States v. Hicks, 752 F.2d 379, 383 (9th Cir.1985). At the very least, he was in the doorway, which is sufficient for the relevant legal determination.

12

In United States v. Santana, 427 U.S. 38, 42 (1976), the Court stated that for fourth amendment purposes, a person standing in the doorway of a house is in a "public" place. " 'What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.' " Id. (quoting Katz v. United, 389 U.S. 347, 351 (1967)). A warrantless arrest of such a person is thus constitutional under Watson. In United States v. Botero, 589 F.2d 430 (9th Cir.1978), cert. denied, 441 U.S. 944 (1979), the defendant opened his door in response to the agent's knock, at which point the agents placed him under arrest. We held that since the officers were not required to enter the apartment, no warrant was required. Id. at 432. See also United States v. Whitten, 706 F.2d 1000, 1015 (9th Cir.1983) ("A doorway, ... unlike the interior of a hotel room, is a public place), cert. denied, 465 U.S. 1100 (1984). The warrantless arrest of Fegurgur as he stood in or outside of the doorway of his home was constitutional.

II. Refusal to Admit Polygraph Evidence

13

As noted above, Torres, who was one of the three men implicated in the robbery, pled guilty and became one of the government's chief witnesses. After noting inconsistencies in his allegations of who held the gun, the government requested that he submit to a polygraph examination. The examiner was of the opinion that Torres was being "deceptive" on the issue of who actually held the gun during the robbery. The government disclosed this information to the defense. On the first day of trial, the government made a motion in limine to direct that all references to the examination be stricken. The court initially ruled that the test could be used for impeachment purposes, but then reversed that decision and concluded that neither the test results nor the fact that he took the test could be mentioned for any purpose.

14

Fegurgur argues that he should have been able to introduce evidence that the test was given as a means of questioning Torres' credibility. First, he argues that the evidence that Torres failed the test should be admissible to challenge the credibility of his assertions at trial. Fegurgur's second and more limited argument is that the fact that the government doubted its key witness enough to have him take a polygraph a day before trial--regardless of the test results--is itself evidence that should have been presented to the trier of fact.

15

The decision to exclude evidence--and polygraph evidence in particular--is within the broad discretion of the trial court.2 See United States v. Falsia, 724 F.2d 1339, 1341 (9th Cir.1983); United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir.1975), cert. denied, 426 U.S. 923 (1976). "[A] trial court will rarely abuse its discretion by refusing to admit [polygraph] evidence, even for a limited purpose and under limited conditions." Marshall, 526 F.2d at 1360. The fact that the government administered the test "does not establish its reliability or require its receipt into evidence." United States v. McIntyre, 582 F.2d 1221, 1226 (9th Cir.1978). Nor is the trial court's broad discretion limited simply because "the Government administered the test to one of its own witnesses and ... he failed it." See United States v. Ferris, 719 F.2d 1405, 1408 (9th Cir.1983).

16

There are numerous reasons to exclude reference to a polygraph examination, not the least of which is the time and delay that would inevitably result from protracted testimony regarding the test's reliability. As to the evidentiary significance of the fact that the test was given, the government's possible uncertainty about a witness's credibility is of questionable relevance. Fegurgur had a full opportunity to cross-examine the government witnesses. The government offered other explanations for administering the test to Torres. The court may have decided that the confusion or prejudice that could result from allowing evidence that the test was administered without disclosing the results outweighed any possible probative value. The district court did not abuse its discretion in deciding to exclude any reference to the examination.

17

AFFIRMED.

*

The Honorable James M. Fitzgerald, Chief Judge, United States District Court, District of Alaska, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 21

1

Fegurgur relies on our decision in United States v. Johnson, 626 F.2d 753 (9th Cir.), aff'd on other grounds, 457 U.S. 537 (1980), for the proposition that the agents constructively arrested him prior to the point at which they officially did. However, the police in Johnson drew the defendant to the door by misrepresenting their identities and then brandished their weapons throughout the encounter. See id. at 755. Neither of these factors is present here

2

This court has adopted a per se rule that "unstipulated polygraph evidence is inadmissible as technical or scientific evidence under Fed.R.Evid. 702 because it does not 'assist the trier of fact to understand the evidence or to determine a fact in issue.' " Brown v. Darcy, 783 F.2d 1389, 1395 (9th Cir.1986) (2-1) (quoting Fed.R.Evid. 702). Fegurgur's arguments for admission, which relate to credibility rather than a "fact in issue," are not foreclosed by the Darcy per se rule