U.S. v. Rodriguez

Decision Date06 March 1989
Docket NumberNo. 87-5139,87-5139
Citation869 F.2d 479
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Victor RODRIGUEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Anthony J. Scremin, P.A., Miami, Fla., for defendant-appellant.

James P. Walsh, Jr., Asst. U.S. Atty., Chief, Major Narcotics Section, and Joe McGinnis, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON, WIGGINS and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

BACKGROUND

In 1982, Officer MacNeil of the Glendale, California Police Department began receiving information--reports from other narcotics officers and a corroborated tip from a citizen informant--which led him to suspect that Jaime Giraldo was distributing cocaine in the area. This suspicion was reinforced when MacNeil discovered a connection between Giraldo and the victim of a 1985 cocaine-related murder. Subsequent information, obtained from informants, anonymous tips, and warranted searches of various residences, prompted MacNeil to commence surveillance of Giraldo and those suspected of participation in Giraldo's narcotics organization.

During the period between May 27, 1986 and June 2, 1986, MacNeil and other officers observed a continuous pattern of activity. This activity, centering around four residences in the Los Angeles area, was consistent with MacNeil's suspicions of narcotics distribution.

On June 2, surveillance observed two vehicles, a pickup truck and a van, enter the garage of a suspect residence in Southgate, California. As both vehicles departed, the van was seen to contain two large cardboard boxes that it did not contain earlier. The two vehicles proceeded to a nearby taco stand where the drivers met two other men, subsequently identified as Victor Rodriguez and Kevin Martin. Martin assumed possession of the van and drove away, followed by Rodriguez in a Buick. The other two men departed in the pickup truck.

The van eventually entered the garage of what was later found to be Martin's residence in Montclair, California. Rodriguez parked the Buick a few blocks away and joined Martin. Subsequently, two women and five children visited the residence, and departed shortly in the Buick. After 45 minutes, the van emerged from the garage with Martin as driver and Rodriguez as passenger. However, before the van could leave the area, it was stopped by two surveilling officers.

The officers approached with weapons drawn and ordered Rodriguez and Martin from the van. After identifying themselves, the officers allegedly noticed Rodriguez placing an object into his jacket pocket. They asked Rodriguez for identification, and inquired about the object (the officers allegedly had holstered their weapons at this point). Rodriguez supplied his name and address, but denied that there was anything in his pocket. The officers then asked Martin if he owned the van; Martin stated that he did, and granted them permission to search the van. Four empty duffle bags and a portable cellular telephone were found.

The officers then frisked Rodriguez and felt a cylindrical object. They allegedly asked Rodriguez for, and received, permission to search the pocket. The officers retrieved a small plastic film canister, which they opened, and discovered that it contained a white powder resembling cocaine. At that point, the officers placed Rodriguez and Martin under formal arrest for conspiracy to transport and sell cocaine.

Following the arrests, the officers asked Rodriguez for permission to search his residence. Rodriguez stated that his wife had approximately $20,000 in the house that he did not want the officers to take. Believing this to be only qualified consent, they allegedly refrained from conducting a full search. They did, however, conduct a warrantless entry to secure Rodriguez' residence from other potential occupants. Martin declined to give the officers consent to search his residence, and apparently no warrantless entry was conducted.

Shortly thereafter, MacNeil applied for and obtained a telephonic warrant to search a number of residences, including Rodriguez and Martin were charged with possession with intent to distribute 120 kilograms of cocaine; distribution of 100 kilograms of cocaine; and conspiracy to do the same. They pleaded not guilty, and subsequently filed joint motions to quash the search warrant and suppress evidence. After a hearing, the district judge denied the motions. Rodriguez and Martin then withdrew their earlier pleas and entered conditional pleas of guilty to all but the conspiracy count, which was dropped. Rodriguez was sentenced to twenty years imprisonment, Martin was sentenced to eight years imprisonment, and both were fined $100.

the residences of Rodriguez and Martin. During the searches, the police found, among other things, approximately 124 kilograms of cocaine and transaction ledgers at Martin's residence, and approximately $38,000 in cash at Rodriguez' residence. As a result of the foregoing, Rodriguez, Martin, and eight others (including Giraldo) were indicted by a grand jury in the Central District of California.

Rodriguez is the only defendant involved in this appeal. Essentially as raised in his motion to quash the search warrant and suppress evidence, Rodriguez challenges the officers' justification for stopping the van, conducting a search incident to that stop, entering his residence without a search warrant, and subsequently obtaining a search warrant (which he also claims was overbroad).

DISCUSSION
A. The Detention and Arrest

Rodriguez raises three alternative challenges to his detention and arrest. First, he argues that the officers were unjustified in stopping the van because they reasonably could not have suspected that criminal activity was afoot. Second, he argues that the detention was so intrusive that it amounted to an arrest, unsupported by the requisite probable cause. Third, he argues that at a minimum, probable cause was lacking at the time he was formally arrested. The government contends that the officers possessed probable cause to arrest Rodriguez and Martin before the van was stopped, and that therefore, the detention and formal arrest were constitutionally justified.

The initial inquiry is whether and when the surveilling officers acquired probable cause to arrest Rodriguez and Martin. This court has stated the standard as follows:

Arresting officers have probable cause to make warrantless arrests if, at the moment of arrest, facts and circumstances within their knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.

United States v. Hillison, 733 F.2d 692, 697 (9th Cir.1984) (citing United States v. Martin, 509 F.2d 1211 (9th Cir.), cert. denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975)).

The circumstances preceding and surrounding the stopping of the van are set forth in the transcript of the June 2, 1986 telephonic affidavit accompanying MacNeil's application for the search warrant in this case. The first portion of the affidavit establishes that MacNeil had significant information from various sources linking Giraldo and others to narcotics trafficking--information from other narcotics officers, a corroborated tip from a citizen informant, a connection with a cocaine-related murder, observations made during a warranted search of Giraldo's suspected residence, and certain facts from a follow-up investigation.

The affidavit then describes three additional tips, two of which were from anonymous sources. Contrary to the claims of Rodriguez in his brief, the information provided on those three instances was substantially corroborated and indicates credibility and reliability. For example, the first anonymous letter stated that a large sum of cocaine-related U.S. currency would be found at a Glendale apartment in which Anna Chica resided, and that this currency belonged to Muriel Chica, who resided in Pasadena. A consent search of the Glendale apartment produced $140,000 U.S. dollars The police did not have the opportunity to corroborate entirely the second anonymous letter. However, they did corroborate the information concerning the new addresses of Giraldo, one of his sons, and other suspects (the Munozes). Additionally, Anna Chica was seen at one of the addresses in the letter. Again, this anonymous tip proved to be quite credible and reliable. The third tip, from an informant, gave the whereabouts of Giraldo's second son, and stated that he was still involved in the narcotics trafficking. This information was corroborated in the ensuing surveillance.

and an alert from a narcotics dog. Anna Chica was present at the time of the search, along with a resident of the Pasadena address. In short, that first anonymous tip was quite accurate.

The affidavit then describes an elaborate course of surveillance during which the focus was on Giraldo, his sons, and others that were under suspicion. Although no cocaine was actually observed during the five days of surveillance, the officers believed they saw two large stacks of U.S. currency, overheard a suspicious telephone conversation, observed a flurry of activity including frequent trips to the airport, and observed evasive driving among other things.

Rodriguez argues that this activity is not probative of criminal activity. Taken alone he may be correct. But when viewed in light of the tips and other circumstances noted above, this same activity appears highly suspicious. It is not uncommon for seemingly innocent conduct to provide the basis for probable cause. See Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983).

At this point probable cause existed to arrest the various members of the...

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