U.S. v. Perez-Esparza

Decision Date23 October 1979
Docket NumberD,No. 79-1092,PEREZ-ESPARZ,79-1092
Citation609 F.2d 1284
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ismaelefendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Joseph A. Milchen, Frank & Milchen, San Diego, Cal., for defendant-appellant.

Barton C. Sheela, III, Asst. U. S. Atty., (on brief), Michael H. Walsh, U.S. Atty., Barton C. Sheela, III, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court For the Southern District of California.

Before CHAMBERS, WALLACE and TANG, Circuit Judges.

WALLACE, Circuit Judge:

Based upon stipulated facts before a district judge, Perez-Esparza was convicted of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). He appeals, asserting that denial of his motion to suppress evidence was reversible error. We agree and reverse.

I

On November 6, 1978, an informer, who had previously supplied Drug Enforcement Administration (DEA) agents with reliable information on 20 to 25 separate occasions, advised DEA agents that a beige 1971 Ford, with California license plates 787-WAX, was being used to smuggle narcotics into the United States from Mexico. This information was entered into the border computer system. On November 9, 1978, the car entered the United States at a border crossing. Because of an error in the computer system the car was not stopped. This information was subsequently relayed to DEA agents who advised law enforcement agencies to watch for the vehicle.

The next morning, pursuant to the alert, the vehicle was stopped at the Border Patrol checkpoint at San Clemente, and was sent to a secondary inspection area. A Border Patrol agent took Perez-Esparza to an office to await the arrival of the DEA agents.

The agents arrived from San Diego about two and one-half hours later. Perez-Esparza was then properly advised of his Miranda rights, informed he was being detained because the agents suspected narcotics were being transported in his car, and told that the agents were in the process of obtaining a search warrant. Perez-Esparza told the agents they were welcome to search his car and signed a written consent to that effect. A search of the car revealed cocaine concealed in a headlight.

Subsequent to the discovery of the contraband, Perez-Esparza was again advised of his Miranda rights, after which he stated that he had been paid to drive the car to the Los Angeles area and was aware that the car contained cocaine.

Perez-Esparza was charged with (1) importing and attempting to import cocaine, and (2) possession of and intent to distribute cocaine. The district court denied Perez-Esparza's motion to suppress the contraband and statements obtained during his detention. The first count of the indictment was dismissed and Perez-Esparza was convicted of knowingly and intentionally possessing, with intent to distribute, cocaine.

II

The district judge found "probable cause to stop the car." It is not clear to us whether the district judge meant that there was probable cause to search the car or rather that there was reasonable suspicion to stop the car, which, coupled with the subsequent voluntary consent, validated the search. 1 We conclude he meant the latter and hold that such findings are not clearly erroneous. See United States v. Cortez, 595 F.2d 505, 507 (9th Cir. 1979) ("clearly erroneous" standard applies to district judge's finding of "founded suspicion"); United States v. Rocha-Lopez, 527 F.2d 476, 477 (9th Cir. 1975), Cert. denied, 425 U.S. 977, 96 S.Ct. 2181, 48 L.Ed.2d 802 (1976) ("founded suspicion" and "reasonable suspicion" mean the same).

The tip by the reliable informer identifying the car driven by Perez-Esparza as one used to smuggle narcotics into the United States from Mexico provided reasonable suspicion to allow the stop for questioning. See Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Avalos-Ochoa, 557 F.2d 1299, 1302 (9th Cir.), Cert. denied, 434 U.S. 974, 98 S.Ct. 532, 54 L.Ed.2d 466 (1977). We also find no difficulty accepting the finding that Perez-Esparza's statements and his consent to search the vehicle were voluntary. See United States v. Dubrofsky,581 F.2d 208, 212 (9th Cir. 1978) ("clearly erroneous" standard of review applies to district court findings on voluntariness of consent to search). But accepting these findings is not sufficient to affirm the case. There was a three-hour delay between the legal stop and the voluntary consent. We now focus on the legal effect of the events which occurred in that period of time.

III

Perez-Esparza was taken to a Border Patrol office to await the arrival of DEA agents. Due to the early hour, difficulty finding one of the agents, and the travel time of the agents from San Diego to San Clemente, considerable delay occurred. Our first question is whether the detention of Perez-Esparza for questioning was so similar to an arrest that it required probable cause. We hold, consistent with the Supreme Court's recent decision in Dunaway v. New York, --- U.S. ----, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), that it was. The next question is whether probable cause to "arrest" Perez-Esparza existed. We find it did not.

In Dunaway, a detective, acting on an informant's tip which was not reliable enough to support an arrest warrant, "ordered other detectives to 'pick up' (Dunaway) and 'bring him in.' " Id. at 2251. The detectives found Dunaway at a neighbor's house, took him into custody, and brought him to the stationhouse in a police car. Id. at 2251. Dunaway was then placed in an interrogation room and questioned. Id. After receiving Miranda warnings, Dunaway waived counsel and divulged incriminating evidence. Id.

The Court held in Dunaway that "detention for custodial interrogation regardless of its label intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest." Id. at 2258. The Court rejected the government's suggestion that it "adopt a multifactor balancing test of 'reasonable police conduct under the circumstances' to cover all seizures that do not amount to technical arrests," Id. at 2257, stating that "(a) single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront." Id. Because the police lacked probable cause to arrest Dunaway, his detention constituted an illegal "seizure." Id.

The detention in this case, like that in Dunaway, was for the purpose of custodial interrogation. After the legal stop, a Border Patrol agent escorted Perez-Esparza to an interrogation room in the checkpoint station where Perez-Esparza was detained for three hours, including a two and one-half hour delay pending the arrival of the DEA agents. The detention in this case clearly falls within the broad Dunaway language and is valid only if supported by probable cause. 2 We thus now turn to the probable cause issue.

The only basis for probable cause was the informer's tip, and thus the Aguilar-Spinelli two-prong test must be met: the tip must detail (1) facts which show the informer is credible or the information is reliable, and (2) underlying circumstances which verify the validity of the informer's conclusions. Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Larkin, 510 F.2d 13, 14 (9th Cir. 1974).

In this case, the information was given by an informer who had already supplied 20 to 25 tips, which were subsequently verified. Thus the informer is credible and the first part of the test is satisfied. The tip did not, however, relate the circumstances under which the information was obtained. "In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that (we) may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589. The Court in Spinelli concluded that "(t)he detail provided by the informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), provides a suitable benchmark." Id. In that case the informer "reported that Draper had gone to Chicago the day before by train and that he would return to Denver by train with three ounces of heroin on one of two specified mornings. Moreover, (the informer) went on to describe, with minute particularity, the clothes that Draper would be wearing upon his arrival at the Denver station." Id. at 416-17, 89 S.Ct. at 589.

The information given in this case does not measure up to Draper. Although the informant provided general information pertaining to the use of the car in smuggling, he did not specify that a particular shipment of contraband would be transported at a particular time. Identifying a specific vehicle in general use for smuggling lacks the extensive corroborative detail particulars of a smuggling trip found sufficient in Draper. Thus the information given by the informant does not verify the validity of his conclusions and the second part of the Aguilar-Spinelli test is not met. The informant's tip, therefore, does not meet the standard for probable cause.

We thus conclude that while Perez-Esparza was legally stopped for questioning, the Border Patrol lacked probable cause to arrest him and, therefore, could not detain him as was done in this case for custodial interrogation. This leads us to consider whether the contraband and the statements obtained by the...

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