U.S. v. Prieto-Villa

• Decision Date: 06 August 1990
• Docket Number: PRIETO-VILL,D,No. 89-50150,89-50150
• Citation: 910 F.2d 601
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedroefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 601

910 F.2d 601

UNITED STATES of America, Plaintiff-Appellee, v. Pedro PRIETO-VILLA, Defendant-Appellant.

No. 89-50150.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 4, 1989.

Decided Aug. 6, 1990.

Michael D. Abzug, Los Angeles, Cal., for defendant-appellant.

Patrick K. O'Toole, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

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

Before BROWNING, FERGUSON and BOOCHEVER, Circuit Judges.

FERGUSON, Circuit Judge:

Pedro Prieto-Villa was arrested when police encountered him in an apartment they visited and searched in the course of an investigation into a drug-smuggling conspiracy. Prieto entered a conditional plea of guilty to possession of cocaine with intent to distribute. He appeals the district court's denial of his motion to suppress the cocaine found on his person and his post-arrest statements, and the computation of his sentence under the Sentencing Guidelines. Codefendants Alfredo Apodaca Villegas, who was also arrested in the apartment, and Gabriel Salas-Moreno, who was arrested a day earlier at the border, have appealed their convictions, and the judgment of the district court with regard to them has been affirmed by an unpublished memorandum disposition of this court.

After the suppression hearing, the district court issued an order which stated that there was probable cause for the arrest of Prieto but which made no factual findings regarding the circumstances which gave rise to this conclusion. Federal Rule of Criminal Procedure 12(e) requires the judge to state his essential findings on the record. The determination of probable cause to arrest is heavily dependent on the facts of a particular case. Since the findings which would permit review of this determination are absent here, we remand for factual findings by the district court.

FACTS AND PROCEEDINGS BELOW

Pedro Prieto-Villa was arrested in the course of a police search of an apartment during the investigation of a drug conspiracy. On June 8, 1988, Gabriel Salas-Moreno and Karen Meyer were arrested at the Mexican border with 120 kilograms of cocaine. Karen Meyer identified a hotel in West Covina, California as the destination for delivery of the cocaine. In the possession On June 9, Drug Enforcement Agency (DEA) Agent Steven Georges learned of the arrest and began an investigation in the Los Angeles area. Agent Georges linked the telephone number with Villegas' apartment in Covina and moved to investigate the apartment as a possible destination for the drug delivery. DEA agents observed the apartment and began initial proceedings for obtaining a warrant. When they received word that three men had arrived at the apartment, they proceeded to the apartment without a warrant.

of Meyer and Salas, police found a motel receipt showing a telephone call a week earlier to a number in Covina, California which belonged to Alfredo Apodaca Villegas.

The agents testified later that the front door was open when they approached and knocked. Seated inside the apartment were Villegas, the appellant Prieto, and a third man named Luis Vargas Tovar. The agents explained that they were conducting a narcotics investigation and asked for Villegas. Tovar, who had come to the door, admitted the police into the apartment. Villegas consented to a search of the apartment, during which a pound of cocaine and $650,000 in cash were found. There was testimony at the suppression hearing that the drugs and money were found in closed containers in a closet in an upstairs bedroom. Testimony differed on whether additional money was later located in another container in the same closet by dogs brought in by the canine unit. After the officers found the drugs and money, they arrested all three men. At the suppression hearing, Agent Georges and Los Angeles County Sheriff's Department Officer Paul McGraw testified that during the search they also found a gun and various documents bearing the names of Salas and Villegas.

There is conflicting evidence regarding Prieto in the period before he was arrested. Agent Georges testified that Prieto got up when the police came in and appeared to "overreact" to their presence, closing his eyes, shaking his head, and "slapping" his head. Agent Georges later testified that Tovar had a similar reaction; both Tovar and Prieto were "hitting" their heads and reacted very strongly to the appearance of the police. Officer McGraw testified that Prieto simply sat as he had before. Both officers testified that the men were told to remain seated. Prieto was told to keep his hands in view.

It is not clear how many times or at what points Prieto was patted down or searched. Officer McGraw first testified that the three men had been patted down but stated that he had not done the pat-down himself. Later, during questioning by Prieto's attorney, Officer McGraw stated that he was "almost positive somebody would have done [a pat-down]" during this period. (Emphasis added). Agent Georges testified that after cocaine and money were found in containers in the upstairs bedroom, Prieto was told that he was under arrest, handcuffed and patted down; a "small amount" of cocaine was found on him. Agent Georges did not mention an earlier pat-down. There was no testimony regarding the size and shape of the vial of cocaine found on Prieto, or where on his person the cocaine was found. After his arrest, Prieto admitted to adapting cars for use in drug smuggling.

Prieto moved to suppress the cocaine found on his person and his post-arrest statements, arguing that he had been illegally detained and that there was no probable cause for his arrest. ¹ The district court heard testimony at the suppression hearing and issued an order which focused on the initial investigation by police and facts regarding the police entry and the consent to search. The order made factual findings regarding the entry and search of the apartment, and the court found that

                Villegas' consent to the search was free and voluntary.  The court noted the drugs, money, documents, and "weapon" found in the search, but made no factual findings regarding the nature of the documents, the time of discovery of documents or the weapon, or events which took place during the period when the search was conducted and the men were detained downstairs.  Finally, the court stated without elaboration that "there was probable cause for the arrest of ... Pedro Prieto-Villa."    Prieto entered a conditional plea of guilty and appeals the denial of his motion to suppress.  He also appeals the calculation of his sentence, arguing that he should have been found to be a minor participant under Section 3B1.2 of the Sentencing Guidelines
                

DISCUSSION

Motions to suppress are reviewed de novo. United States v. Yarbrough, 852 F.2d 1522, 1533 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988). The ultimate conclusion of the presence or absence of probable cause is a mixed question of law and fact reviewed de novo. United States v. Smith, 790 F.2d 789, 791 (9th Cir.1986). The underlying facts as found by the district court are reviewed for clear error. United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986).

I.

The Fourth Amendment protects the "legitimate expectations of privacy" of persons, not places. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). "Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person." Ybarra, 444 U.S. at 91, 100 S.Ct. at 342. Even when police have a warrant, the mere fact that a person is in the company of persons for whom a warrant has been issued does not constitute probable cause. United States v. Vaughn, 718 F.2d 332, 334 n. 5 (9th Cir.1983) (citing Ybarra v. Illinois, supra ). In Vaughn, when a car was searched pursuant to a warrant, there nevertheless was no probable cause to arrest or search a passenger because the police lacked information linking him with the drug smuggling conspiracy. Id. at 334.

The government first argues that probable cause to arrest existed because of the discovery of documents linking the apartment with Salas, which tied that location to the large quantity of cocaine Salas had been smuggling, and the discovery of a gun in the apartment, as well as the cocaine and $650,000. However, the judge made no findings regarding the gun and no particular findings regarding the documents; based on testimony at the suppression hearing, they seem to have been found after Prieto had been arrested.

Absent findings regarding what the documents revealed, when these items were discovered, and how they implicated Prieto in or showed his knowledge of the criminal enterprise, it cannot be determined whether the gun and documents established probable cause for Prieto's arrest. No factual findings were made regarding the location of the drugs and money, and what factors might make it probable that nonresidents in the apartment knew of them. Although the district court found that Agent Georges "assumed" that delivery was actually planned for the apartment, the only information the police had received actually pointed to a different location. In the absence of factual findings regarding the time at which delivery of the drugs was planned, we cannot determine the relationship between this assumption by the police and why they may have suspected involvement by a nonresident present at a particular time. Cf. United States v. Baron, 860 F.2d 911, 916-17 (9th Cir.1988) (known criminal activity contemporaneous with association important to determination of probable cause to arrest), cert. denied, ---...