U.S. v. Angulo-Lopez

Citation791 F.2d 1394
Decision Date17 June 1986
Docket NumberNo. 85-3117,ANGULO-LOPE,D,85-3117
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Candelarioefendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Frank Noonan, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Clayton C. Patrick, Salem, Or., for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before FLETCHER, ALARCON, and WIGGINS, Circuit Judges.

FLETCHER, Circuit Judge:

After his pretrial motion to suppress evidence was denied, Candelario Angulo-Lopez entered a conditional guilty plea to two counts of violation of 21 U.S.C. Sec. 841(a)(1), possession of a controlled substance with intent to distribute. The district court accepted the plea and entered judgment against Angulo-Lopez. He appeals, asserting that the warrant authorizing the search of his residence was not based on probable cause. We affirm.

FACTS

On May 25, 1985, police officers in Salem, Oregon executed a search warrant for appellant's residence at 4669 Fuhrer Street in Salem. The officers seized substances that later proved to be heroin and cocaine.

The search warrant was based on an affidavit of a Special Agent of the Drug Enforcement Administration (DEA). He detailed in the thirteen-page affidavit a series of observations relayed to him by DEA and local police officers and by a number of confidential informants. The informants included two citizen-informants and two criminal informants. All four informants had provided the police officers with accurate information in the past regarding the possession or sale of narcotics.

The information in the affidavit from these informants, DEA agents, and Oregon In late April and early May, 1985, police surveillance units observed three encounters between the appellant and unidentified individuals in shopping center parking lots. On each occasion items were exchanged or appeared to be exchanged between the appellant and the other person. During the same period, Bessie Lopez told the citizen-informants that her husband and the appellant were currently selling heroin. The citizen-informants also stated that the appellant was selling heroin out of his new residence at 4669 Fuhrer Street. Police investigation of electric and telephone company records indicated that the occupant at 4669 Fuhrer Street was the appellant.

police officers was the following: Bessie and Simon Lopez, the appellant's sister and brother-in-law, admitted in late April and early May, 1985, to selling heroin. The appellant was seen at the Lopez residence during that period of time, and Simon Lopez had stated to one of the informants that the appellant was living at the Lopez residence. One criminal informant stated that Simon Lopez had advised him that Lopez could sell the informant heroin and in fact the informant had obtained some heroin from Lopez at a northeast Salem shopping center.

STANDARD OF REVIEW

The standard of review for the issuance of a search warrant requires us to examine whether the magistrate had a substantial basis for concluding that the affidavit in support of the warrant established probable cause. United States v. Seybold, 726 F.2d 502, 503 (9th Cir.1984); see Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). This inquiry is less probing than de novo review and shows deference to the issuing magistrate's determination. Seybold, 726 F.2d at 503.

PROBABLE CAUSE

To determine whether information provided by informants establishes probable cause, a magistrate looks to the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); see United States v. Miller, 753 F.2d 1475, 1479 (9th Cir.1985). Prior to the United States Supreme Court decision in Gates, the Court employed the two prong Aguilar-Spinelli test. See Aguilar v. Texas, 378 U.S. 108, 113-14, 84 S.Ct. 1509, 1513-14, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 415-16, 89 S.Ct. 584, 588-89, 21 L.Ed.2d 637 (1969). The first prong, the "veracity" prong, required that the affidavit in support of the search warrant offer the magistrate a basis to conclude that the affiant's informant is trustworthy or reliable. See Spinelli, 393 U.S. at 415-16, 89 S.Ct. at 588-89. The second prong, or "basis of knowledge" prong, required that the affidavit reveal how the informant came by his or her knowledge. The two-prong test ensured that the magistrate perform the independent evaluation of probable cause required by the Fourth Amendment. Id.; see also Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948). The affidavit thus must demonstrate why the affiant believes the informant to be trustworthy and how the informant came upon the information alleged.

The Supreme Court departed from the Aguilar-Spinelli test in Illinois v. Gates, substituting a more flexible "totality of the circumstances test." 462 U.S. at 238, 103 S.Ct. at 2332. Under the Gates test, a weakness in either the "veracity" or "basis of knowledge" prong is not fatal to a finding of probable cause, as long as the issuing magistrate had a "substantial basis" for the finding. 462 U.S. at 238, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)); see Gates, 462 U.S. at 233, 103 S.Ct. at 2329. Evidence bearing on the veracity of the informant and his basis of knowledge is considered together with other relevant evidence in making the probable cause determination based on the totality of the circumstances. See United States v. Roberts, 747 F.2d 537, 543 (9th Cir.1984); United States v. Estrada, 733 F.2d 683, 685 (9th Cir.), cert. denied, --- An informant's veracity or trustworthiness may be established in a number of ways. If the informant has provided accurate information on past occasions, he may be presumed trustworthy on subsequent occasions. United States v. Alexander, 761 F.2d 1294, 1300 (9th Cir.1985). When the information provided in the past involved the same type of criminal activity as the current information, the inference of trustworthiness is even stronger. See Gates, 462 U.S. at 233, 103 S.Ct. at 2329. Veracity also may be established through admissions against penal interest. United States v. Roberts, 747 F.2d 537, 544 (9th Cir.1984); United States v. Estrada, 733 F.2d 683, 686 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 168, 194, 83 L.Ed.2d 103 (1984). Finally, an informant's reliability may be demonstrated through independent police corroboration of the information provided. United States v. Freitas, 716 F.2d 1216, 1222 (9th Cir.1983); see also United States v. Fixen, 780 F.2d 1434, 1437-38 (9th Cir.1986).

U.S. ----, 105 S.Ct. 168, 83 L.Ed.2d 103 (1984).

Certain classes of informants are considered more reliable than others. For example, police officers may be presumed reliable. See United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965); United States v. Beusch, 596 F.2d 871, 874 (9th Cir.1979). Citizen informants, while not carrying the same presumption of reliability as police officers, see United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 33 (1978), nevertheless require less evidence to establish their veracity than criminal informants, see Rutherford v. Cupp, 508 F.2d 122, 123 (9th Cir.1974), cert. denied, 421 U.S. 933, 95 S.Ct. 1663, 44 L.Ed.2d 92 (1975); see also United States v. Fooladi, 703 F.2d 180, 183 (5th Cir.1983), aff'd on rehearing, 746 F.2d 1027 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985); United States v. Unger, 469 F.2d 1283, 1286-87 (7th Cir.1972), cert. denied, 411 U.S. 920, 93 S.Ct. 1546, 36 L.Ed.2d 313 (1973); Easton v. City of Boulder, 776 F.2d 1441, 1449-50 (10th Cir.1985). A citizen informant's veracity may be established by the absence of an apparent motive to falsify and independent police corroboration of the details provided by the informant. United States v. Gagnon, 635 F.2d 766, 768 (10th Cir.1980), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981); Rutherford v. Cupp, 508 F.2d at 123.

Hearsay reported by informants is no bar to a finding of probable cause. When the circumstances suggest veracity, such as an admission against penal interest, a statement made to an informant may be considered reliable. United States v. Wylie, 705 F.2d 1388, 1390 (4th Cir.1983); see United States v. Henderson, 721 F.2d 662, 665 n.1 (9th Cir.1983).

The "basis of knowledge" prong of the Aguilar-Spinelli test requires that the affiant set forth the underlying circumstances that led the informant to believe that criminal activity was occurring; a mere conclusory allegation that a suspect was engaging in criminal activity is insufficient. Spinelli, 393 U.S. at 416, 89 S.Ct. at 589. If the basis of the informant's knowledge is not personal knowledge but hearsay, the hearsay must carry indicia of reliability both as to the veracity of the original source and the basis of the latter's knowledge. See id.

Illinois v. Gates permits independent police corroboration of some of the details provided by the informant to increase confidence in either the reliability or basis of knowledge of the tipster. Gates, 462 U.S. at 233-35, 103 S.Ct. at 2329-31. "[B]ecause an informant is right about some things, he is more probably right about other facts...." Id. at 244, 103 S.Ct. at 2335 (quoting Spinelli, 393 U.S. at 427, 89 S.Ct. at 594 (White, J., concurring)). United States v. Roberts, 747 F.2d at 543. This is not to say that the corroboration of details of innocent conduct invariably will remedy a weakness in an informant's tip. However, "[i]n making a determination of probable cause the relevant inquiry is not The veracity of the informants in this case is supported by the statements...

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