U.S. v. Garza

• Decision Date: 29 June 1992
• Docket Number: No. 91-30240,91-30240
• Citation: 980 F.2d 546
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricardo GARZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 546

980 F.2d 546

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo GARZA, Defendant-Appellant.

No. 91-30240.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 1992.

Decided June 29, 1992.

John R. Muenster, Mestel & Muenster, Seattle, Wash., for defendant-appellant.

Thomas M. Gannon, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: PREGERSON, TROTT and KLEINFELD, Circuit Judges.

PREGERSON, Circuit Judge:

Ricardo Garza appeals his convictions following a jury trial at which he was found guilty of one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1). Garza contends the district court erred by: (1) denying his motion to suppress evidence resulting from his arrest because his arrest was not supported by probable cause; (2) denying his motion to suppress evidence seized pursuant to an allegedly defective search warrant; (3) denying his motion to dismiss the conspiracy count for insufficient evidence; (4) denying his motion to dismiss the distribution count for insufficient evidence; (5) improperly admitting into evidence hearsay statements of alleged co-conspirators; (6) improperly instructing the jury on the conspiracy count; (7) improperly instructing the jury on the distribution count; and (8) improperly instructing the jury on "reasonable doubt." We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

I Probable Cause to Support the Arrest

Garza contends that police officers had no probable cause to arrest him and that all evidence derived from his arrest should have been suppressed by the district court. In support of this contention, Garza argues the district court clearly erred by finding (1) that he was arrested one-and-one-half blocks away from the location of the drug transaction, and (2) that a codefendant had stated that his drug source was driving a red car (Garza was driving a red car when he was arrested). In addition, Garza claims the district court improperly relied on a police officer's past experience rather than the officer's present, particularized probable cause when making its determination. These contentions are without merit.

A warrantless arrest must be supported by probable cause. United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir.1990) (pattern of activity consistent with participation in drug trafficking sufficient basis for probable cause to arrest); United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir.1989) (same), cert. denied, --- U.S. ----, 111 S.Ct. 80, 112 L.Ed.2d 52 (1990). The determination of probable cause is a mixed question of law and fact in which the legal issues predominate, and is therefore subject to de novo review. Hoyos, 892 F.2d at 1392; United States v. Smith, 790 F.2d 789, 791 (9th Cir.1986). We must accept the underlying facts as found by the district court unless clearly erroneous. United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.1986), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986).

"Probable cause exists when, 'under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime.' " United States v. Potter, 895 F.2d 1231, 1233-34 (9th Cir.) (quoting Smith, 790 F.2d at 792), cert. denied, 497 U.S. 1008, 110 S.Ct. 3247, 111 L.Ed.2d 757 (1990)); see also Del Vizo, 918 F.2d at 825. Law enforcement officers may draw upon their experience and expertise in determining the existence of probable cause. Hoyos, 892 F.2d at 1392. Thus, seemingly innocent conduct may provide the basis for probable cause when viewed in light of all of the information known at the time of the arrest. United States v. Rodriquez, 869 F.2d 479, 483 (9th Cir.1989) (pattern of activity consistent with participation in drug trafficking sufficient basis for probable cause to stop vehicle and arrest defendant when he took delivery of vehicle from persons suspected of involvement in narcotics trafficking, even though surveilling officers saw no narcotics). "The arresting officer need not have personal knowledge of the facts sufficient to constitute probable cause. Probable cause may be based on the collective knowledge of all of the officers involved in the investigation and all of the reasonable inferences that may be drawn therefrom." Hoyos, 892 F.2d at 1392 (citations omitted).

Here, at the time Garza was arrested, agents were aware of the following facts: the supplier in an aborted attempt to deliver cocaine to Drug Enforcement Agency (DEA) Agent Gassett on the previous day had been driving a red car; Garza drove a red car to the location of the drug buy and let off a passenger who personally delivered the cocaine to Agent Gassett; Garza waited until his passenger showed the cocaine to Agent Gassett before driving away from the location; Garza, trailed by surveilling agents, then drove a short distance away and parked his car in a public lot. These facts, when combined with the arresting agents' knowledge that drug dealers are unlikely to use innocent drivers in a multi-kilogram cocaine delivery, amply support the district court's finding of probable cause underlying Garza's arrest. See Hoyos, 892 F.2d at 1393.

II Search Warrant

Garza contends the district court erred by denying his motion to suppress evidence seized pursuant to a search warrant. Garza points to three possible bases for his argument: the warrant was not supported by probable cause; material misrepresentations and omissions in the warrant affidavit rendered it invalid; and exigent circumstances did not justify the search of an address different from that listed in the warrant. ¹ These contentions are without merit.

We review for clear error the magistrate's determination regarding probable cause to issue a search warrant. United States v. Terry, 911 F.2d 272, 275 (9th Cir.1990).

For an affidavit in support of a search warrant to establish probable cause, "the facts must be sufficient to justify a conclusion that the property which is the object of the search is probably on the premises to be searched at the time the warrant is issued." United States v. Greany, 929 F.2d 523, 524-25 (9th Cir.1991). Based on the nature of the evidence and the type of offense, a magistrate may draw reasonable inferences about where evidence is likely to be kept. Terry, 911 F.2d at 275. We have previously recognized that " '[i]n the case of drug dealers, evidence is likely to be found where the dealers live.' " Id. (quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986)).

Here, the affidavit submitted by Agent Gassett stated that: Garza was the driver of a vehicle in which cocaine was delivered to Gassett; a co-defendant claimed that Garza was the source of the cocaine and said he had called Garza's residence earlier on the day of the arrest; identification found on Garza art the time of his arrest indicated that he lived at the address which the police sought to search; and the phone number supplied by the co-defendant was consistent with the address found on the identification Garza was carrying at the time of his arrest.

In light of these facts, the magistrate did not clearly err by finding that probable cause existed to issue the search warrant. See Terry, 911 F.2d at 276.

Garza contends that even if the magistrate had probable cause to issue the warrant, the warrant should be invalidated because of material misrepresentations and omissions in the warrant affidavit. This contention lacks merit.

The district court's factual findings as to whether statements in an affidavit were false or were omitted are reversed only if clearly erroneous. United States v. McQuisten, 795 F.2d 858, 863 (9th Cir.1986). Whether any omissions or misstatements are material is a mixed question of law and fact which we review de novo. Id. Not all information in the government's possession need be included in the warrant affidavit. United States v. Johns, 948 F.2d 599, 606 (9th Cir.1991). Only if omitted facts " 'cast doubt on the existence of probable cause' " do they rise to the level of misrepresentation. Id. (quoting United States v. Dennis, 625 F.2d 782, 791 (8th Cir.1980)).

Garza alleges two instances of material misrepresentation and three instances of material omission. Garza argues that the affidavit stated he had personally delivered the cocaine to Agent Gassett when in fact a co-defendant was in physical possession of the cocaine at the time it was shown to Agent Gassett. Garza also objects to the fact that the affidavit misdescribes the address listed on the identifying documents located with Garza at the time of his arrest. The affidavit makes reference to "32124-26th Ave. S.W., Federal Way, Washington," when in fact the correct address was 33124-26th Ave. S.W., Federal Way, Washington. The alleged material omissions concerned Garza's post-arrest assertions that he no longer lived in Federal Way and that he was not involved in the cocaine transaction but was merely giving his co-defendant a ride, and that the co-defendant who implicated him had initially denied Garza had anything to do with the cocaine.

There was no evidence that any of the alleged misrepresentations or omissions resulted from deliberate action by the affiant to mislead or from reckless disregard for the truth. Even if the misstatements were corrected and the omissions supplied, the affidavit would furnish probable cause for issuance of the warrant. See Johns, 948 F.2d at 607; United States v. Stanert, 762 F.2d 775, 782 (9th Cir.1985).

Garza's final contention is that there were no exigent circumstances justifying the officer's search of an address different from that listed in the warrant. This contention is without merit.

A search...