U.S. v. Del Vizo

• Decision Date: 08 November 1990
• Docket Number: No. 89-50141,89-50141
• Citation: 918 F.2d 821
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Ruiz DEL VIZO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 821

918 F.2d 821

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Ruiz DEL VIZO, Defendant-Appellant.

No. 89-50141.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 30, 1990.

Decided Nov. 8, 1990.

David G. Freedman, Miller & Holguin, Los Angeles, Cal., for defendant-appellant.

John L. Carlton, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before NELSON, BRUNETTI and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must determine the constitutionality of a warrantless arrest of Anthony Ruiz Del Vizo and of a variety of subsequent searches. Because we conclude that there was probable cause for appellant's arrest, we affirm the district court's judgment of conviction for two narcotics offenses.

I

In August 1988, relying on a confidential informant's tip, officers of the Torrance Police Department began surveillance of a house at 23302 Anza in Torrance, California. Police continued this surveillance from September 1 through September 6, 1988.

On September 3, 1988, officers followed Julio Balmaceda as he drove from the Anza address to various Western Union offices. The officers observed Balmaceda driving in a "counter-surveillance" manner--he would quickly pull over to the curb and allow cars to pass, he made U-turns, and he circled the neighborhood.

On September 6, 1988, officers observed Manuel Suastegui meet with Balmaceda inside the Anza residence. Officers followed Suastegui as he drove away from the house in a red Ford Bronco. Approximately five miles away, officers observed Anthony Ruiz Del Vizo driving a Plymouth Voyager van. Del Vizo and Suastegui began driving in tandem. Officers observed both using cellular telephones and frequently checking their rear view mirrors.

Del Vizo stopped for gas at a station in Cerritos. Suastegui parked the Bronco in front of the gas station, approached Del Vizo, and conversed with him. After a few minutes, both men returned to their respective vehicles and continued to drive in tandem.

Del Vizo drove the van to a house located at 13357 Ashworth in Cerritos, where he parked in the driveway and spoke with Manuel Ibarra. Meanwhile, Suastegui drove his Bronco past the Ashworth residence without stopping. Suastegui then made a U-turn and headed back to the gas station where he and Del Vizo had met earlier. When Del Vizo finished his discussion with Ibarra, he returned to the gas station on foot, leaving the van in the driveway of the Ashworth residence. At the gas station, Del Vizo entered Suastegui's Bronco and the two drove to a shopping mall, where they parked and then meandered through the mall.

The surveillance officers remaining at the Ashworth residence noticed that Ibarra came outside to look into Del Vizo's van at least twice in the first five to ten minutes after Del Vizo had left. Approximately thirty minutes later an unidentified male arrived at the Ashworth house in a pick-up truck and met with Ibarra in front of the house. After a brief discussion, the two entered the house. Moments later, the newcomer came out carrying a plastic bag containing a sharp rectangular object inside; the package was of a size that it might have contained a kilogram of cocaine. The unidentified man placed the bag inside a utility box in the rear of his pick-up truck and drove away. The officers observed him circle the area in what appeared to be a counter-surveillance manner before driving onto the freeway.

Ten minutes later, Ibarra left the Ashworth house carrying a box measuring three feet by two feet. Ibarra placed the box inside Del Vizo's van. A few minutes later, Hector Ramos arrived in a pick-up truck and parked. After a brief discussion with Ibarra, Ramos left in Del Vizo's van.

Officers followed the van from the Ashworth house to a house at 12234 Brittain in Hawaiian Gardens. Ramos drove in a counter-surveillance manner from the Ashworth house to the Brittain house: he circled the area, made U-turns, drove faster than the speed limit, and frequently pulled the van to the right curb to let traffic go by before resuming driving. At the Brittain house, Ramos parked the van partially down the driveway. Ramos got out and removed the box that Ibarra had placed in the van; he took the box into the Brittain house.

Twenty minutes later, Ramos exited the house with another individual. Both got into Del Vizo's van and drove to an apartment at 21925 Claretta in Hawaiian Gardens. Again, officers following Ramos saw him drive in a counter-surveillance manner. At the Claretta address (an apartment complex), officers could not see exactly where Ramos went. However, some twenty minutes later, officers saw Ramos leave, still driving Del Vizo's van. The van now appeared to be carrying some cargo, as it sat lower in the rear. Ramos drove back to the aforementioned Ashworth house in Cerritos. This time, he carefully obeyed all traffic laws, drove well below the posted speed limit, and did not commit any traffic infractions as before.

Back at the Ashworth house, Ramos met briefly with Ibarra after he parked Del Vizo's van in front of the house. Ramos then departed in his pick-up truck. Ibarra went to the rear portion of the van and checked it before going back into the house. Later, Ibarra came out again and checked the doors of the van, apparently to see whether they were locked.

Minutes later, Ibarra exited the house with another individual and drove to a nearby supermarket, where he made telephone calls from a public telephone before returning to the Ashworth house. Minutes later, Del Vizo and Suastegui returned in the Bronco to the Ashworth house. Suastegui there dropped off Del Vizo and then drove off to the nearby gas station; Suastegui appeared to hide at the station. Del Vizo meanwhile met briefly with Ibarra in front of the Ashworth house before getting into the van and driving away.

Del Vizo drove the van more slowly than the existing flow of traffic and allowed other cars to pass him before he got onto the freeway. Minutes later, Suastegui caught up to him on the freeway, and Suastegui's Bronco and Del Vizo's van once again were driven in tandem.

Police officers then decided to make a stop of both vehicles, based upon their observations and their belief that a drug transaction had just occurred. Two marked Torrance patrol cars stopped both the Bronco and van. At gunpoint, Del Vizo was ordered out of the van and forced to lie down on the street; he was then handcuffed. After being handcuffed, Del Vizo was asked whether he spoke English, and he responded affirmatively. He was told that he was being detained pending a narcotics investigation. The officers also asked Del Vizo if he would consent to a search of the Voyager van. Del Vizo consented. When the officers told Del Vizo that he did not have to consent, Del Vizo reaffirmed his consent.

Before searching the van, the police looked into it through its windows. In the back of the van, in plain view through the windows, they could see plastic bags with packages inside. The officers suspected that the bags contained cocaine or other drugs and brought a narcotics-detection dog to the scene. The dog alerted the officers to the presence of drugs in the van. The officers then searched the van and found 104 kilograms of suspected cocaine in the bags. A field test indicated that the substance in the bags was indeed cocaine. The officers also found in the van documents indicating that the van was registered to Del Vizo and specifying Del Vizo's residence. Suastegui and Del Vizo were arrested for narcotics trafficking and their vehicles were impounded. ¹

On September 20, 1988, Del Vizo and six other defendants were indicted on seven counts of various narcotics offenses. Del Vizo pleaded not guilty at his arraignment. Del Vizo also filed a motion to suppress evidence, contending that he had been arrested without probable cause. After an evidentiary hearing, the district court denied the suppression motion on November 7, 1988.

On January 3, 1989, Del Vizo withdrew his pleas of not guilty to two counts of the indictment ² and entered conditional guilty pleas ³ on those counts. Defendant was sentenced to 190 months' imprisonment and five years' supervised release. The remaining counts were dismissed at the government's motion, and a judgment of conviction was entered on June 17, 1989.

Del Vizo timely appeals the denial of the suppression motion. We have jurisdiction under 28 U.S.C. Sec. 1291.

II

We first inquire whether Del Vizo was under arrest by the time cocaine was discovered in his van. The district court concluded alternatively (1) that Del Vizo's initial detention amounted to a mere investigatory stop which ripened into an arrest only after the discovery of the cocaine, or (2) that there was probable cause to arrest Del Vizo at the time the van was stopped. ⁴ We conclude that Del Vizo had been arrested prior to the discovery of the cocaine, and treat the question of probable cause in the succeeding section. ⁵

In determining whether an official detention has ripened into an arrest, we consider the "totality of the circumstances." United States v. Baron, 860 F.2d 911, 914 (9th Cir.1988), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 414 (1989). There has been an arrest if, under the circumstances, a reasonable person would conclude that he was not free to leave after brief questioning. United States v. Pinion, 800 F.2d 976, 978-79 (9th Cir.1986), cert. denied, 480 U.S. 936, 107 S.Ct. 1580, 94 L.Ed.2d 770 (1987); see also United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1295 (9th Cir.1988) ("we review the situation from the perspective of the person seized").

In this case, the circumstances surrounding Del Vizo's detention included an order to alight from his vehicle and subsequent handcuffing, all done by officers brandishing weapons. Under the...