U.S. v. Corral

• Decision Date: 17 July 1992
• Docket Number: No. 91-2195,91-2195
• Citation: 970 F.2d 719
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cruz CORRAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 719

970 F.2d 719

UNITED STATES of America, Plaintiff-Appellee, v. Cruz CORRAL, Defendant-Appellant.

No. 91-2195.

United States Court of Appeals, Tenth Circuit.

July 17, 1992.

Marcia J. Milner, Albuquerque, N.M., for defendant-appellant.

James D. Tierney, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before LOGAN, ANDERSON, Circuit Judges, and THEIS, District Judge. ^*

THEIS, Senior District Judge.

Defendant-Appellant Cruz Corral, convicted of conspiracy to distribute cocaine and possession with intent to distribute cocaine, appeals the district court's denial of her motion to suppress incriminating evidence obtained from her residence and a vehicle that she occupied. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I

Cruz Corral walked into a Village Inn restaurant close to her home on the morning of October 11, 1990 to meet with Stanley Gloria and James Torres. Unbeknownst to her, Gloria and Torres were narcotics detectives from the Albuquerque Police Department (APD) posing as major out-of-town narcotics traffickers. Corral agreed to supply one kilogram of cocaine for the price of $23,000. She inspected the money, and arranged to make the exchange in a nearby K-Mart parking lot.

While Corral was at the meeting, the APD police officers, who were surveilling her residence, observed Jose Alvarez arrive at Corral's residence in a Nissan pick-up truck. They had noticed an unusually high volume of visitors making brief stops at the residence.

After concluding her Village Inn meeting, Corral returned to her residence. She changed out of her blue jeans into a dress and then left with Alvarez for the K-Mart parking lot in the Nissan pick-up truck. Keeping constant surveillance on Corral and Alvarez, the police officers notified the undercover detectives, Gloria and Torres, that Corral had arrived at the parking lot. Detectives Gloria and Torres entered the parking lot and pulled alongside the Nissan truck. They then approached Corral, seated at the passenger side, and asked if she brought the cocaine. Corral pulled out a brick of cocaine from the waistband of her skirt. Detective Gloria made a small cut into the brick and saw a white substance. After he "observed that it was, in fact, cocaine," Detective Gloria asked Detective Torres to get the money from the trunk of their vehicle. Alvarez followed Torres to the trunk of the undercover vehicle. As Torres was about to hand the money over to Alvarez, they observed a marked APD patrol car approaching their site. Torres immediately slammed shut the trunk lid and yelled "Police." Detective Gloria told Corral that he would finish the deal later, and both vehicles hurriedly left the parking lot. By radio communication, Gloria and Torres informed the surveillance team that they had personally observed a kilogram of cocaine in Corral's possession.

After a brief interval, Corral and Alvarez were observed reentering the K-Mart parking lot, driving slowly as though looking for somebody. Detective Griego, whose patrol car had earlier interrupted the drug transaction, decided to conduct an investigatory stop of the Nissan pick-up truck, and summoned additional police units. As a uniformed APD officer stopped the pick-up truck, Detective Griego, who was parked behind the truck, observed Corral fumbling with her clothing and placing something behind the passenger seat. Detective Griego approached the passenger side of the truck. Corral had been removed from the truck and the passenger door was left ajar. Standing a foot away from the open door, Detective Griego saw a taped package resembling a brick of cocaine behind the passenger seat. Corral, however, disputes the officer's testimony that the taped package lay in plain view, asserting that the package was obstructed from view by the passenger seat.

Corral was detained and the vehicle was secured and towed to an APD facility. According to the government, the APD officers, after obtaining a search warrant, searched the vehicle and the taped package, and found a kilogram of cocaine in the package. Corral, however, contends that the search of the vehicle had occurred prior to the execution of the search warrant.

Pursuant to the same search warrant, the officers later searched Corral's residence and found a half kilogram of cocaine, over $18,000 in cash, and numerous documents and personal property linking the residence to Corral. Corral was arrested several days later. Corral was subsequently tried and convicted of conspiracy to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 846; and possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). ¹

In denying Corral's motion to suppress, the district court ruled that the search of the pick-up truck was lawful because the package lay in plain view and that, alternatively, the officers possessed probable cause to arrest Corral and to conduct a concomitant search of the vehicle. The district court also upheld the search of Corral's residence on the ground that the search warrant was supported by probable cause.

II

Corral first challenges the search and seizure of the taped package containing one kilogram of cocaine that was discovered in the Nissan truck. She asserts that the search could not be supported by the plain view exception to the warrant requirement because the package was not in plain view and, alternatively, because the officers were not lawfully located in the place from which the package could be seen, and the package was not apparently incriminating on its face. The government, on the other hand, contends that the search need not be justified as a plain view search because it was executed pursuant to a valid search warrant. ²

We address, at the outset, the appellant's contention that the government failed to meet its burden of proof because it did not present during the suppression hearing the particular APD officers "who could best explain why they seized the package." She claims that Detective Barela, the government's principal witness in the suppression hearing, had no first-hand knowledge of what Detective Griego could see when he approached the Nissan truck or whether the officers who stopped the truck possessed the requisite reasonable suspicion to conduct an investigatory stop. Because the government "chose to call a witness who knew very little about the stop," argues the appellant, the government has failed to establish a plain view search.

As a reviewing court, we are not confined simply to the evidence adduced during the suppression hearing. In evaluating the correctness of the district court's rulings, the appellate court may consider the entire record developed from the trial even though such evidence may not have been presented during the suppression hearing. United States v. Rios, 611 F.2d 1335, 1344 n. 14 (10th Cir.1979), cert. denied, 452 U.S. 918, 101 S.Ct. 3054, 69 L.Ed.2d 422 (1981). Here, although Barela's testimony arguably may not supply the basis for the plain view search, subsequent evidence produced at trial may support such a theory. At trial, Detective Griego himself took the stand and testified that he saw the package in plain view. As such, the government's failure to produce the most appropriate witness in the pre-trial hearing does not by itself necessarily mandate reversing the district court's decision.

Examining the entire record, we now address the district court's ruling that the seizure of the cocaine from the vehicle was supported by the plain view doctrine. Questions of law, including legal determinations of reasonableness in Fourth Amendment issues, are reviewed de novo. United States v. Morgan, 936 F.2d 1561, 1565-66 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992).

It is a well established legal principle that "under certain circumstances the police may seize evidence in plain view without a warrant." Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). A plain view seizure of incriminating evidence is sustainable if (1) the item is indeed in plain view; (2) the police officer is lawfully located in a place from which the item can plainly be seen; (3) the officer has a lawful right of access to the item itself; and (4) it is immediately apparent that the seized item is incriminating on its face. See Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990).

Appellant challenges the plain view seizure of the cocaine package on the grounds that the package was not in plain view; that the officers who stopped the vehicle lacked reasonable suspicion to conduct an investigatory stop; and that the package was not incriminating on its face.

In sustaining the seizure on plain view grounds, the district court necessarily rejected the appellant's assertion that the cocaine package was hidden from view, and accepted instead Detective Barela's testimony that Detective Griego was able to observe the package while standing outside the vehicle, looking in through its open door. We are mindful that a district court's factual findings are subject to a highly deferential standard of review and must be accepted by the appellate court unless "clearly erroneous." E.g. United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990). "[T]he credibility of witnesses and the weight to be given the evidence, together with inferences, deductions, and conclusions fairly and reasonably to be drawn from the evidence," are matters within the province of the trial court. United States v. Donahue, 442 F.2d 1315, 1316 (10th Cir.1971). Here, the record contains ample support for the district court's conclusion. Apart from the photo exhibit showing the package in full view, (Defendant's Exhibit B), Officer Griego himself testified at trial that he observed the package while looking in...