923 F.2d 621 (8th Cir. 1991), 89-5606, United States v. Morales

Docket Nº:89-5606.
Citation:923 F.2d 621
Party Name:UNITED STATES of America, Appellee, v. Julian Jorge MORALES, Appellant.
Case Date:January 17, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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923 F.2d 621 (8th Cir. 1991)

UNITED STATES of America, Appellee,

v.

Julian Jorge MORALES, Appellant.

No. 89-5606.

United States Court of Appeals, Eighth Circuit

January 17, 1991

Submitted June 12, 1990.

James Ostgard, Minneapolis, Minn., for appellant.

Andrew Dunne, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Julian Jorge Morales appeals from his conviction entered on a conditional guilty plea of possessing cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B) (1988). On appeal, he argues that police lacked probable cause for his arrest and that the warrantless search of his luggage was not a lawful

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search incident to that arrest. Finally, he argues that the district court erred in failing to give a two level reduction under the federal sentencing guidelines for acceptance of responsibility. We affirm the judgment of the district court 1 and the sentence.

On the morning of July 9, 1989, Officer Stephen Moss of the Minneapolis/St. Paul International Airport Police received information from a confidential informant that a black Cuban male known as "Chico" would depart by bus from the Minneapolis Greyhound Bus Depot at about noon that day with one kilogram or more of cocaine. The informant described Chico as about 5'8" tall, weighing 140 to 150 pounds, 20 to 30 years old, with short black hair. The informant stated that Chico's destination was New York and that he would be carrying a small black bag and a small shiny handgun. The informant also stated that Chico would be wearing jeans, high-top tennis shoes, and a black T-shirt.

Officer Moss arrived at the Minneapolis Greyhound Bus Depot at about 10:45 a.m. with three other law enforcement officers. A ticket agent told them that a bus would be leaving for New York at 12:30 p.m. While Moss was waiting, his dispatcher paged him and reported that the informant had called again and stated that Chico would instead depart from the Greyhound Depot in St. Paul. The informant further stated that Chico would arrive at 3:20 p.m. in a red pick-up truck with a white topper.

The officers went to the St. Paul depot, where a ticket agent told them that a Hispanic male, about 5'8" tall and weighing 140 pounds, had just purchased with cash a one-way ticket to New York on a bus scheduled to depart at 3:45 p.m. The ticket agent also said that the man had no prior reservation, and that he was wearing jeans and a black T-shirt, carrying a small black bag, and was accompanied by a Hispanic female.

Moss again talked to the informant, who told him that Chico had purchased a one-way ticket to New York at the St. Paul depot for $125 cash, that the bus was leaving at 3:45 p.m., and that Chico would be with a Hispanic female. The informant further said that Chico would have carry-on bags, including a small black bag.

At about 3:30 p.m., a red Ford pick-up truck with a white topper arrived at the depot. Moss saw an individual fitting the description given by the informant and the ticket agent, except that the man was not wearing a black T-shirt. The individual was accompanied by a woman and was carrying a black knapsack and a red duffel bag. As they entered the doors, the man handed the woman the black bag and opened the inner door for her. When they stepped inside, she handed the black bag back to him. The officers then approached, showing their identification, and stating that they were police officers. The woman then said "What is this, Chico?"

Officer Bruce Giller, also of the Airport Police, pushed Morales up against a nearby wall, told him he was under arrest for narcotics, and that he and his bags would be searched. Officer Moss took the bags and searched them, standing about three feet away from Morales, who stood spread-eagled against the wall but was not handcuffed. Inside the red duffel bag Moss found a black leather business pouch that contained one kilogram of cocaine. The red bag also contained a grey plastic shopping bag that held several clear plastic baggies containing cocaine. No weapon was found.

One of the officers searched the purse carried by the woman and found two plastic baggies containing 56 grams of cocaine. At that point Morales said, "Leave the woman out of this. All the cocaine is mine. I put that in there." The woman was neither handcuffed nor arrested. Police gave Morales Miranda warnings, and he made no further statements.

After Morales was charged, his attorney filed a motion to suppress evidence. At the hearing, Officer Moss testified that his informant

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had provided reliable, verified information to him on at least four previous occasions. This information had included the names and telephone numbers of drug couriers, travel schedules, and locations of safe houses. Although the information had not led to any arrests, none of the information furnished by the confidential informant had proved to be incorrect.

The magistrate, in his report and recommendation stated that under the totality of the circumstances, probable cause existed for Morales' arrest. United States v. Morales, No. 3-89-78, slip op. at 5-6 (D.Minn. Sept. 8, 1989). The search of the bags was proper as the officers had information that Morales may have been armed, and because the search was supported by a valid arrest. Id. at 6. The magistrate further found that the bags were within the area of Morales' immediate control, bringing them within the scope of a valid search incident to arrest. Id. at 7. The magistrate also found that Morales' inculpatory statement to the agents was not made in response to a question and was therefore outside the scope of Miranda. Id. at 9.

The district court conducted a de novo review of the record and adopted the magistrate's report and recommendation. United States v. Morales, No. 3-89-78 (D.Minn. Sept. 25, 1989). After the entry of the guilty plea, the district court denied a two level reduction for acceptance of responsibility and sentenced Morales to 104 months under the guidelines.

I.

Morales argues that the police lacked probable cause to arrest him because the informant's tip lacked reliability and because the details of the tip that police independently verified concerned conduct that was outwardly "innocent." Morales contends that these details--including bus departure times, the cash purchase of a one-way ticket, the physical description of Morales, and his nickname of "Chico"--could readily be known to any observer and do not indicate anything suspicious. The government counters that the corroboration of many "innocent" details enhanced the tip's reliability, giving officers reasonable grounds to believe that the informant had supplied equally accurate information regarding Morales' criminal activities. The government contends that verification of totally innocent details can provide an adequate basis for probable cause.

On appeal, the district court's finding of probable cause to arrest is reviewed under the clearly erroneous standard. United States v. Wajda, 810 F.2d 754, 758 (8th Cir.), cert. denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987); United States v. Williams, 897 F.2d 1430, 1435 (8th Cir.1990); United States v. Woolbright, 831 F.2d 1390, 1393 (8th Cir.1987). We will affirm the district court's determination of probable cause unless it lacks the support of substantial evidence, or resulted from an erroneous conception of the applicable law, or our consideration of the entire record leaves us with the "definite and firm conviction that a mistake has been made." United States v. McGlynn, 671 F.2d 1140, 1143 (8th Cir.1982) (citations omitted).

Police officers have probable cause to make an arrest "if the 'facts and circumstances within the [law enforcement] officer's knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.' " United States v. Caves, 890 F.2d 87, 93 (8th Cir.1989) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979)). See also Wajda, 810 F.2d at 758 ("[p]robable cause exists to make a warrantless arrest when, at the moment of the arrest, the collective knowledge of the officers involved ... was 'sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense' ") (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)).

The determination of probable cause does not " 'rest on isolated facts; rather it depends on the cumulative effect of the facts in the totality of the circumstances.'

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" Warren v. City of Lincoln, 864 F.2d 1436, 1440 (8th Cir.) (quoting United States v. Archer, 840 F.2d 567, 573 (8th Cir.1988)), cert. denied, 490 U.S. 1091, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989). While a " 'bare suspicion' of criminal activity is not sufficient to establish probable cause," neither are police "required to have enough evidence to justify a conviction before they make a warrantless arrest." Caves, 890 F.2d at 93.

Looking at the cumulative effect of the facts in the totality of the circumstances, we are convinced that the information known to police officers raised far more than a "bare suspicion" of criminal activity and in fact firmly established probable cause. The confidential informant had supplied reliable information to Officer Moss on at least four previous occasions. Here, the informant had supplied detailed information about the appearance and actions of Morales. In assessing the tip's reliability, the most significant elements were those that predicted Morales' future actions, including his planned departure to New York at 3:45 p.m. and his arrival at the bus depot at a...

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