482 F.3d 1067 (9th Cir. 2007), 05-30347, United States v. Lopez

Docket Nº:05-30347.
Citation:482 F.3d 1067
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Hosvaldo LOPEZ, Defendant-Appellant.
Case Date:March 12, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1067

482 F.3d 1067 (9th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,


Hosvaldo LOPEZ, Defendant-Appellant.

No. 05-30347.

United States Court of Appeals, Ninth Circuit.

March 12, 2007

Argued and Submitted May 5, 2006.

Page 1068

[Copyrighted Material Omitted]

Page 1069

Bryan E. Lessley, Office of the Federal Public Defender, Eugene, OR, for the appellant.

Kelly A. Zusman (argued), Charles W. Stuckey (on the brief), and Karin J. Immergut, Office of the United States Attorney, Portland, OR, for the appellee.

Appeal from the United States District Court for the District of Oregon; Garr M. King, District Judge, Presiding. D.C. No. CR-04-114-KI.

Before W. FLETCHER, and JOHN T. NOONAN, Circuit Judges, and LOUIS H. POLLAK, [*] District Judge.

Opinion by Judge POLLAK; Concurrence by Judge NOONAN.


POLLAK, District Judge.

In February 2005, the District Court of Oregon denied defendant Hosvaldo Lopez's pretrial motion to suppress evidence found in his car. Lopez subsequently pled guilty to possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a), but reserved the right to appeal the denial of his motion to suppress. He was sentenced to a term of incarceration of 135 months. He now timely appeals from the denial of his pretrial motion to suppress evidence and his resulting conviction. Because we conclude that the police had probable cause to arrest Lopez as an accessory to another crime, and, while in custody, Lopez voluntarily consented to a search of his car, we affirm the District Court's denial of the motion to suppress and the resulting conviction and sentence.


At a quarter past noon on March 4, 2004, while two law enforcement officers--members of the West Side Interagency Narcotics Team--were interviewing a witness in a narcotics investigation in the front yard of a residence in Hillsboro, Washington County, Oregon, a man drove up, got out of his car and began to approach the group. The witness, however, motioned the man away, and when one of the officers called the man back, the man turned and drew a gun on the officers. According to the officers, the man appeared to try to fire the weapon but then returned to his car--a green Ford Focus--and sped away.

Based on the two officers' description of the suspect, an alert was immediately issued for police to look for "an adult, male Hispanic in his 20s, thin build, taller, wearing a white sweater, and armed with a firearm." 1 An accurate description of the

Page 1070

attempted shooter's getaway car--including its make, model, and license plate number--was also provided.

At approximately a quarter to one in the afternoon--about half an hour after the front-yard encounter--the Ford Focus was found nearby, in the parking lot of a Fred Meyer store. 2 Based on the license plate number, the police secured the name of the registered owner--Roberto Lopez Gamez--and his physical description, which included Gamez's height and weight, from the Department of Motor Vehicles. 3

The police staked out the area. About eight hours later, their vigilance was rewarded. Officers observed a white, 1990s Ford Taurus with tinted windows enter the parking lot and park near the Ford Focus. A female passenger, later identified as Alicia Polish, got out of the Ford Taurus, got into the Ford Focus, started it, and drove off, leaving through the west exit of the parking lot and entering the adjoining road. The Ford Taurus also departed; the driver was observed to be a Hispanic male, approximately twenty years old. Although the Ford Taurus left the parking lot through the southeast exit, it then turned onto the road on which the Ford Focus was traveling and proceeded to follow the Ford Focus at a distance of approximately four hundred yards.

Officers stopped both cars, using a "high risk traffic stop" technique involving multiple police cars, officers, and the pointing of firearms. The driver of the Ford Taurus was ordered out of the car at gunpoint, while surrounded by several police cars and officers. He was told to lie on the ground and was placed in handcuffs. Next, he was patted down for weapons; none were found. The police located his wallet and found a driver's license in the name of Hosvaldo Lopez, the defendant-appellant in this action. Lopez was then detained inside one of the patrol cars. The government alleges, and Lopez does not deny, that, during this process, he twice verbally consented to a search of his car (although the police did not, at that time, conduct such a search). Shortly thereafter, he was asked to accompany police officers to the Hillsboro Police Department. 4 Lopez was transported to the

Page 1071

station in the back of a patrol car and, upon arrival, was placed in the custody of detectives. According to police testimony, Lopez was fully cooperative and compliant throughout.

At the station, Lopez was advised, in Spanish, of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and his right to refuse to consent to a search of his Ford Taurus. Following questioning, he was asked to provide written consent to a search of his vehicle, which he did. During their subsequent search, police found a secret compartment behind the back seat of the car, which contained illicit drugs, cash, and a loaded firearm.

It was ultimately determined that the alleged attempted shooter--the suspect sought on March 4, 2004--was Roberto Lopez Gamez, the registered owner of the Ford Focus, and not appellant Hosvaldo Lopez.


Lopez's pretrial motion to suppress argued that, under the Fourth and Fifth Amendments, his stop, detention, and ensuing custody constituted an illegal seizure and that any statements or other evidence obtained from him or from his vehicle must be excluded as fruits of that illegality, or as evidence derivative therefrom. The District Court denied Lopez's motion, holding that (a) the officers had the reasonable suspicion required for an investigative Terry stop (see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), and (b), given that Lopez "substantially fit the description of the suspect," "the arresting officers had probable cause to take defendant into custody." The District Court also found that, at the police station, Lopez validly waived his Miranda rights and voluntarily consented to the search of his car.

On appeal, Lopez concedes that the police possessed reasonable suspicion to stop his car, but he maintains that the police lacked probable cause to arrest him and that evidence obtained as a result of that arrest must be suppressed. The government maintains that the arrest was supported by probable cause. According to the government, "[i]t was reasonable to believe that the defendant was either the person involved in the earlier attempted shooting of the police officers or that he was an accessory after the fact, in violation of 18 U.S.C. § 3." 5


"In general, we review determinations of motions to suppress de novo." United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.1994) (citing United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993)). This court reviews de novo whether probable cause to arrest Lopez existed, as the question raises mixed questions of law and fact. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Carranza, 289 F.3d 634, 640 (9th Cir.2002).

"We may affirm a district court's denial of a motion to suppress on any basis supported in the record." United States v. Ruiz, 428 F.3d 877, 880 (9th Cir.2005); United States v. Albers, 136 F.3d 670, 672 (9th Cir.1998).

Page 1072


In our view, the central questions to be addressed in determining whether Lopez's motion to suppress was properly denied are whether, at the time Lopez, at the police station, consented to the search of his car, (a) he was under arrest, (b) there had been probable cause for that arrest, and (c) probable cause had not been dissipated. Because our answers to the latter two questions are dispositive of this appeal, we do not answer the first question, but rather assume without deciding that the District Court was correct in finding that the investigative stop of Lopez's vehicle promptly escalated into what, "for Fourth Amendment purposes," constituted a "full-scale arrest" of Lopez.

In the balance of this opinion, we start by examining what constitutes probable cause. We then address the two theories of probable cause for Lopez's arrest advanced by the government. We find that the government's first theory, while initially adequate to support Lopez's arrest, was no longer viable by the time Lopez consented to the search of his car, since by then the police had acquired additional information that undercut probable cause. But we further find that the government's second probable cause theory not only validates Lopez's arrest, but remains supportive of Lopez's continuing arrest status at the time of his consent to the search of his car. Because we find that there was probable cause to arrest Lopez, and that the probable cause was still in force at the time Lopez consented to the search, we hold that the District Court properly denied the motion to suppress.

A. The probable cause standard

Under the Fourth Amendment, a warrantless arrest requires probable cause. See Michigan v. Summers, 452 U.S. 692, 700, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Alternatively, this court has defined probable cause as follows: when "under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a...

To continue reading