U.S. v. Colonia

• Decision Date: 27 April 1989
• Docket Number: Nos. 87-2977,87-2978,s. 87-2977
• Citation: 870 F.2d 1319
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William COLONIA and Fanny Alvarez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1319

870 F.2d 1319

UNITED STATES of America, Plaintiff-Appellee, v. William COLONIA and Fanny Alvarez, Defendants-Appellants.

Nos. 87-2977, 87-2978.

United States Court of Appeals Seventh Circuit.

Argued Nov. 4, 1988.

Decided March 23, 1989.

Rehearing and Rehearing In Banc Denied April 27, 1989.

Thomas A. Durkin, Richard C. Moenning, Chicago, Ill., for defendants-appellants.

Lisa A. Huestis, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge.

William Colonia and Fanny Alvarez were arrested as a result of a Drug Enforcement Administration (DEA) surveillance in response to a tip concerning receipt of a large shipment of cocaine. They were convicted in a bench trial of having participated in conspiracy to possess and distribute cocaine and of possession with intent to distribute cocaine. We affirm.

I.

In early May 1987, a confidential informant advised the DEA that William Colonia would receive a shipment of cocaine, and that Fanny Alvarez was involved with Colonia in cocaine distribution. On May 18 DEA agents began surveillance of the vicinity of Colonia's residence. Early that afternoon Colonia and Alvarez exited a Chicago apartment located at 4941 North Wolcott Street, and entered a blue Buick. Followed by agents in separate cars, the Buick traveled a circuitous route until Colonia and Alvarez had reached a parked Oldsmobile. Colonia entered the Oldsmobile and drove off in tandem with Alvarez in the Buick, both driving in an evasive fashion. Colonia then parked the Oldsmobile and re-entered the Buick with Alvarez and returned to the apartment with her. An agent remained at the parked Oldsmobile. A trained narcotics detector dog brought to the car gave an alert for the presence of narcotics.

Later in the afternoon of May 18, Colonia and Alvarez departed the 4941 Wolcott Street address and entered a Pontiac. Agents who were advised of the positive alert to narcotics in the Oldsmobile followed and intercepted the Pontiac. Upon the agents' arrest of Alvarez and Colonia, Alvarez told them she was in the process of purchasing the Pontiac. She declared that she owned a Buick and that her family previously had owned an Oldsmobile. When arrested, Colonia possessed keys to the Oldsmobile he had driven earlier that afternoon.

Both defendants were handed a DEA form card with their Miranda rights printed in Spanish. After Alvarez had read it she passed it to Colonia. At the time of their arrest, a nonoperative mobile telephone was taken from Alvarez.

Alvarez was read and given a waiver of rights form which she refused to sign. The agents then told Alvarez they would obtain a search warrant for her 4941 North Wolcott Street residence. She at first refused to give consent to the search. She was concerned about her children, and asked how long it would be before the police would eventually leave her home. Only after learning that the delay could be several hours did she finally sign the form giving consent to search.

The agents found two children and a baby-sitter in Alvarez's apartment. They also found $19,620 in United States currency, an "OHAUS" Triple Beam Balance Scale under the bed, a Colombian passport in the name of Alvarez, bearing Alvarez's photo, and 1.3 net grams of cocaine atop the refrigerator. The stipulated facts show that Fanny Alvarez was a resident at 4941 North Wolcott Street; that at all times Alvarez leased her apartment she used the name "Olga Silva"; and that the $19,620 in currency included no denominations over $50 and included $16,240 in $20 bills.

In the meantime, a search warrant was obtained for the impounded Oldsmobile. A search of that automobile (the day after the apartment search) revealed cocaine.

Following their trial without a jury the district court, in a thorough and well-reasoned opinion, found Colonia and Alvarez guilty of participation in a conspiracy to possess and distribute cocaine, and of possession with intent to distribute cocaine. On November 10, 1987, both defendants were sentenced to five years incarceration on each of these two counts to be followed by four years of probation, the sentences of these two counts to run concurrently.

II.

A. Alvarez's Motion To Suppress Fruits Of Arrest

Appellant Alvarez asserts that the district court erred in denying her motion to suppress the fruits of her warrantless arrest when it found there had been probable cause for her arrest. The constitutional validity of a warrantless arrest, especially one involving an informant-auto search situation, depends upon the probable cause to effectuate the arrest under the totality of circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); cf. United States v. Benevento, 836 F.2d 60, 67 (2d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2035, 100 L.Ed.2d 620 (1988). On review we will uphold the trial court's findings of fact determined after a suppression hearing unless they are clearly erroneous. United States v. Covelli, 738 F.2d 847, 853 (7th Cir.), cert. denied, 469 U.S. 867, 105 S.Ct. 211, 83 L.Ed.2d 141 (1984).

Alvarez argues that the confidential informant failed to specify her alleged involvement in Colonia's distribution of cocaine; that a delay between this original tip and the May 18 arrest undermines its reliability and the officers' credibility; that the agents' testimony of defendants' evasive driving tactics is spurious; and that the police dog's alert to the presence of narcotics in the Oldsmobile may have provided a foundation for Colonia's arrest but not Alvarez's because, unlike Colonia, Alvarez did not approach the Oldsmobile. ¹

Close to this case is United States v. Marin, 761 F.2d 426 (7th Cir.1985). In Marin a confidential source informed the Drug Enforcement Administration on May 9, 1983, that Aida Barreto was distributing cocaine, and surveillance of Barreto began on May 16, 1983. Early on May 24 the confidential source informed the DEA that Barreto would begin distributing cocaine that day. Agents observed Barreto leave her residence to enter a Camaro and drive several blocks to pick up one Latin male and one Latin female passenger. Agents observed these three proceed in a circuitous manner to a building at a second address; there Barreto exited the auto to enter that building, returning several minutes later. Barreto then continued driving in a circuitous manner to the original address, whereupon the two Latins departed in the Camaro.

That afternoon Barreto left the first address in an Oldsmobile, driving in a circuitous fashion to a third address; there Hector Marin exited a building carrying a brown paper bag. Marin nervously entered the Oldsmobile, and he and Barreto drove in a roundabout fashion. Agents intercepted the Oldsmobile and made a protective search of Marin. The brown bag was found to contain cocaine.

Following a bench trial wherein Barreto and Marin were convicted of conspiracy to possess with intent to distribute cocaine, and of possession with intent to distribute cocaine, id. at 429, they appealed to this court. They contended that the DEA had lacked probable cause to stop and search the Oldsmobile. In Marin both defendants challenged the stop and search of the Oldsmobile on the ground that the officers had possessed insufficient knowledge to establish probable cause under the totality of the circumstances test, id. at 430, just as Alvarez challenges her arrest at the Pontiac. The two Marin defendants claimed that the DEA confidential source had no experience as an informant, and having provided no details or basis for the substance of his report the informant lacked credibility, and that DEA surveillance had revealed only innocuous legal activity. Id. Nevertheless, this court determined that the Marin search was permissible. Citing Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), we concluded that "probable cause is a flexible, practical common-sense standard that requires facts sufficient 'to warrant a man of reasonable caution to believe that an offense has been or is being committed.' " Marin, 761 F.2d at 430. In Marin the DEA agents had personal contact with their confidential source, observed Barreto driving two different automobiles, and observed the circuitous driving as an obvious ploy to evade attempted surveillance.

Alvarez's argument is very similar to the one we rejected in Marin. She claims the informant's information did not implicate her, that the evasive driving pattern was innocuous, and that the dog detector alert did not connect her to the narcotics. But here, an agent testified that the informant was reliable and had been in contact both in person and by telephone. This informant provided physical descriptions of Colonia and Alvarez. Here, agents observed Alvarez in two different automobiles. In this case also, agents saw Alvarez engage in circuitous motoring.

DEA agents observing defendants such as Barreto or Alvarez are justified in drawing upon their experience to size up the actions which they observe in the context of information supplied by a known confidential source. Marin, 761 F.2d at 432-33. Activities like those of Alvarez are to be considered not in isolation but in perspective of all the circumstances known to the DEA agents. The relevant inquiry is not whether specific conduct is innocent or guilty, but the level of suspicion attaching to particular kinds of noncriminal acts. Id. at 432. The Oldsmobile stop and warrantless search in Marin were permissible under the Fourth Amendment. Id. at 433. So too was the arrest and consequent search of Alvarez at the Pontiac.

B. Alvarez's Motion To Suppress Fruits Of Home Search

Alvarez argues that the district court erred in denying her motion to suppress the fruits of the warrantless search of 4941 North Wolcott Street. The district court relied upon her voluntary consent...