U.S. v. Hoyos
| Citation | 892 F.2d 1387 |
| Decision Date | 20 December 1989 |
| Docket Number | No. 87-5060,87-5060 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Hector Hernan HOYOS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael D. Abzug, Los Angeles, Cal., for defendant-appellant.
James L. McGinnis, Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before WALLACE, ALARCON and BEEZER, Circuit Judges.
Hector Hernan Hoyos (Hoyos) appeals from the judgment of conviction for conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1982). After the denial of his suppression motions, Hoyos entered a plea of guilty conditioned upon his right to appeal the adverse rulings. Subsequently, he filed a motion to withdraw his guilty plea. This motion was also denied.
Hoyos seeks reversal on the following grounds:
(1) He was arrested without probable cause.
(2) The protective sweep of his residence was an unreasonable search.
(3) The district court erred in concluding that probable cause supported the issuance of a search warrant.
(4) The district court abused its discretion in denying his motion to withdraw his guilty plea.
We affirm because we have concluded that each of these contentions is without merit. We address each issue and the facts pertinent thereto under separate headings.
On September 12, 1986, Los Angeles County Deputy Sheriff Thomas Mulligan, 1 received an anonymous telephone call that informed him that persons living at 356 Eagle Nest, Diamond Bar, California, were dealing in narcotics. The residents did not appear to be employed. Periodically, strangers in new cars would arrive at the residence and stay for short periods of time. Deputy Mulligan was also informed that the Glendale Police Department was at that location approximately five months earlier.
Deputy Mulligan contacted a narcotics investigator at the Glendale Police Department. He was informed that the Glendale Police Department had received information that 356 Eagle Nest was a safe house for storing large amounts of cocaine. The Glendale investigators abandoned their investigation after observing that the Eagle Nest house appeared to be empty and unused.
On the same date, Deputy Mulligan contacted United States Customs, Special Agent Ronald L. Ingleby 2 and advised him of the information he had obtained concerning the Eagle Nest location. On September 19, 1986, Special Agent Ingleby observed two men and a woman remove one dozen full, heavy, gray plastic bags from a silver colored Buick automobile and take them into the residence at 356 Eagle Nest.
On September 22, 1986, Deputy Mulligan was assigned to conduct a surveillance of the residence located at 356 Eagle Nest. At 9:30 a.m., Deputy Mulligan observed Misael Pulgarin leave the residence. Deputy Mulligan followed him to a Denny's Restaurant in the City of Brea.
En route, Deputy Mulligan observed Pulgarin drive slowly, then rapidly increase his speed, make U-turns in the middle of streets, slow down at green lights, and then accelerate through intersections when the lights turned yellow. Deputy Mulligan noted that Pulgarin intermittently used a cellular telephone in the car. Deputy Mulligan stated in his affidavit that "[b]ased upon more than 50 previous occasions of surveillance of narcotics traffickers, [he] recognized this behavior as counter-surveillance driving; that is, an attempt to detect law enforcement surveillance."
At the restaurant, Pulgarin met Thomas Cuellar. After 15 to 20 minutes, they left in a blue Mazda 626.
On September 23, Deputy Mulligan resumed surveillance of the Eagle Nest residence at 8:00 a.m. Pulgarin left the residence at 8:45 a.m. in a brown Nissan Sentra and drove to Hunny's Restaurant.
Deputy Mulligan observed Pulgarin stop twice to make telephone calls. Each time Pulgarin dialed two sets of numbers and then received a return telephone call. Deputy Mulligan stated in his affidavit in support of the search warrant that it is a common practice among drug traffickers to communicate through the use of a "beeper." These telephone calls were referred to by Deputy Mulligan as "beeper calls." At Hunny's, Pulgarin met Hoyos, who had arrived there in a white Mazda 626. The two men left the restaurant and drove their respective cars to 15603 Starbuck Avenue in Whittier.
On September 24, 1986, Deputy Mulligan began surveillance of the Starbuck residence. At 2:00 p.m., he observed Hoyos drive away in the white Mazda. Deputy Mulligan observed Hoyos drive to a public telephone. He did not travel a direct route on through streets. Instead, Hoyos used residential streets and drove through a school zone. Deputy Mulligan testified that Hoyos did not use the route that "based upon eleven years of familiarity with the area, would have been most direct." Deputy Mulligan further testified that, based on his experience as a narcotics investigator Hoyos "did so in an effort to detect surveillance."
At the public telephone, Deputy Mulligan observed Hoyos make two "beeper" calls. Hoyos then pulled behind a building and stayed for twenty to twenty-five minutes. After that he drove to a Del Taco and made one or two more beeper calls.
At 8:50 a.m., on September 25, 1986, Deputy Mulligan returned to the Eagle Nest residence to resume his surveillance. He observed Pulgarin leave at 9:45 a.m. in a gray Plymouth Reliant.
Sergeant Thomas Stover, 3 of the Los Angeles Sheriff's Office followed Pulgarin to the Denny's Restaurant in Brea. Pulgarin made several telephone calls from public telephones en route. He arrived at Denny's at approximately 10 a.m. Pulgarin waited in a booth for 15 to 20 minutes at which time Cuellar joined him. They remained in the restaurant for 30 minutes.
Pulgarin and Cuellar left the restaurant together and drove to a Sears store in La Habra. Special Agent Ingleby joined the surveillance at the Sears store.
Sergeant Stover and Special Agent Ingleby followed Pulgarin and Cuellar to the parking lot at the Denny's restaurant in La Habra. There, Special Agent Ingleby observed Pulgarin and Cuellar meet Hoyos and Leonardo Amaya. Amaya gave Pulgarin a key. Pulgarin used it to enter a gold Ford pick-up truck. Pulgarin drove the truck out of the restaurant parking lot. Amaya then entered the passenger side of a brown Nissan Sentra driven by Hoyos. Cuellar entered the gray Plymouth Reliant.
The gray Reliant and the brown Nissan followed the Ford pick-up truck into the parking lot of a nearby Coco's Restaurant. Amaya got out of the brown Nissan and walked over to the Ford pick-up. Pulgarin returned the key to Amaya. Amaya left Coco's parking lot in the truck.
Special Agent Ingleby followed Amaya to the parking lot of a shopping center in Diamond Bar. There he observed Pulgarin and Cuellar in the gray Reliant. They pulled in behind Amaya. Both vehicles were then driven to the vicinity of the Eagle Nest Residence.
Early that afternoon, Deputy Mulligan observed the gray Reliant and the gold Ford pick-up at the Eagle Nest residence. The pick-up was parked in the middle of the garage. Three-quarters of the truck was inside the garage. The officers observed five persons in the garage, including Pulgarin, Amaya, and Cuellar. Shortly thereafter, Amaya drove away in the Ford pick-up truck.
Sergeant Stover followed Amaya into a K-Mart parking lot. Amaya left the truck and walked towards a McDonald's restaurant. While Sergeant Stover was still in his car he made eye contact with Amaya. Amaya increased his speed. Sergeant Stover left his car and followed Amaya into the restaurant but lost sight of him. Sergeant Stover again observed Amaya about five minutes later outside an Exxon service station, standing near a public telephone. Sergeant Stover arrested Amaya and drove him back to the truck. The truck was searched. It contained over one hundred kilograms of cocaine.
After Amaya's arrest and the seizure of the cocaine, Deputy Mulligan directed Los Angeles County Deputy Sheriff Robert Schelnutt 4 to go to the Starbuck residence to secure the premises. He told Deputy Schelnutt about the seizure of 100 kilos of cocaine and informed him that based on his observation during the investigation, he expected other persons involved in the narcotics transaction to be at the residence. Deputy Mulligan also gave Deputy Schelnutt Hoyos' physical description. In addition, he informed Deputy Schelnutt that Hoyos drove a white Mazda. Deputy Schelnutt was also directed to secure the premises so that evidence would not be destroyed while a search warrant was obtained. Deputy Schelnutt was also instructed to detain, or, if necessary, arrest additional suspects.
Deputy Schelnutt proceeded to the Starbuck residence. He was accompanied by several other Los Angeles County Sheriff's deputies including Richard Love and Frank Rodella. 5 When they arrived at the residence, the officers saw the white Mazda previously described to them in the driveway. The officers then observed two women come out the front door of the residence. After these observations were communicated to Deputy Mulligan via radio transmission, he directed the officers to detain the women. After the women entered their car, Deputy Schelnutt approached them, showed them his badge, and informed them he was conducting a narcotics investigation. At that time, the other officers approached the house.
As Deputy Love approached the house, he noticed Hoyos and a woman watching him from the backyard through a fence. Deputy Love drew his gun and yelled "Sheriff's Department", "freeze", "hold it", "police", or words to that effect. Deputy Love testified that at that time he was dressed in his green sheriff's field jacket and was not more than twelve feet away...
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