U.S. v. Cruz Jimenez, 88-1860

Decision Date05 October 1989
Docket NumberNo. 88-1860,88-1860
Citation894 F.2d 1
PartiesUNITED STATES of America, Plaintiff, Appellee, v. Jose M. CRUZ JIMENEZ, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Ardin Teron, San Juan, P.R., was on brief, for defendant, appellant.

Jorge E. Vega Pacheco, Asst. U.S. Atty., San Juan, P.R., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for plaintiff, appellee.

Before BOWNES and TORRUELLA, Circuit Judges, and BROWN, * Senior Circuit Judge.

TORRUELLA, Circuit Judge.

After a jury trial in the United States District Court for the District of Puerto Rico, Jose M. Cruz Jimenez was convicted of trespass and forgery of counterfeit currency, and possession with intent to distribute cocaine. Defendant appeals his conviction, contending that some evidence introduced at trial should have been excluded as violative of the Fourth Amendment of the United States Constitution. We affirm the conviction.

I. BACKGROUND

On November 9, 1987, Denise Catala used a counterfeit $100 bill to purchase an airplane ticket. The ticket agency, recognizing the bill as a counterfeit, contacted the Secret Service, which sent agents to question Catala about the source of the note on November 12, 1987. According to Catala, on the evening of November 8, 1987, she went to a dance with the defendant, who had rented a room at the El Rio Motel. At that motel, like at other motels of its genre, patrons pay a fee at the entrance to a fenced courtyard, and may select any vacant room, as signified by an open garage door. That night, the defendant gave her the bill, and the next day contacted her with the request that she use the money to purchase an airline ticket for the defendant's girlfriend. After talking with the agents, Catala agreed to cooperate with the government.

To corroborate the story of Catala ("informant"), a telephone call was placed to the defendant at the El Rio Motel. The call was made from a government facility, and, according to the defendant, a pre-determined script was used. The call was recorded with the consent of Catala. At trial, the government used the call only for the limited purpose of corroborating the fact that the defendant was at the motel.

The next day, the government agents took Catala to the vicinity of the motel. According to the government, she was first searched, and then outfitted with a recording device, although the defendant claims that she was never searched. Catala then went to defendant's motel room.

While there, Catala talked about counterfeit currency and controlled substances. Fifteen minutes after entering the room, Catala exited, and surrendered to the agents a small amount of cocaine. Defendant argues that he never gave her the drug, while the government contends the opposite. According to the government, the substance was field tested and determined to be cocaine, but the defendant contends that no such field test was ever performed. On the basis of this evidence, the government concluded that it had probable cause to arrest the defendant. A warrant, however, was never obtained.

The government claims that when its agents arrived at the motel, the defendant's room door was open, and one of its agents observed Cruz standing in the doorway. The agent identified Cruz, and placed him under arrest. The defendant then stepped inside the room, where the agent frisked him and read him his Miranda rights. According to the government, the other occupant of the room, Alejandrina Vazquez, was then asked to leave, and a security sweep of the area was conducted. Thereafter, the defendant executed a waiver of his Miranda rights, and signed a form consenting to a search of the room. The government contends that the significance of the form was explained. Cocaine was found in the mattress.

The defendant asserts that immediately after the agents entered his room, they pushed him to the floor, handcuffed him, and searched his room and adjoining bathroom. Thereafter, he claims, he was taken outside to a closed garage and subjected to a body cavity search. The defendant also claims that, after the body cavity search, he was forced to sign a document without "admitting to read them." According to the defendant, nothing was found in the room, at least not until after he was taken away.

The government next contends that it took the defendant to its office in San Juan, arriving there at 4:00 p.m. on November 13, 1987, a Friday. It argues that the defendant was again advised of his Miranda rights, and that, without any threats or promises having been made, he signed a confession. According to the government, the defendant appeared relaxed and cooperative. Agent Burgos testified that it was after 6:00 p.m. when the defendant provided the statement, and, therefore, pursuant to a United States District Court for the District of Puerto Rico Rule, the government sought a commitment order from the United States Magistrate and took him to jail. The magistrate examined only the statement provided by appellant.

Defendant contends that, although he arrived in San Juan at 3:30 p.m., he was held, without being brought before a judicial officer, for eight hours of interrogation. He asserts that he never made a voluntary confession, but that, instead, the agents coerced him into signing a statement. Defendant contends that the agents told him that his co-defendant denounced him, and that if he did not talk, he would bear the responsibility for the crimes alone. Three hours after his arrival in San Juan, he was told that cocaine had been found in his room, and that he and his female companion, later identified as his cousin, would face many years in prison. The defendant thus concludes that he signed papers which contained a fictional story to protect his cousin. He asserts that he never read what he signed, and that he was taken to jail about midnight.

The appellant essentially raises four issues, all of which we will consider seriatim.

II. PROBABLE CAUSE FOR ARREST

Cruz first argues that his arrest was without probable cause, and was, therefore, illegal. There is no better starting point from which to evaluate this argument than the constitutional amendment from which it springs.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,....

U.S. Const. amend. IV. So begins the fourth amendment of the United States Constitution. It is, by this time, well settled that the language of the fourth amendment extends its aegis to the seizure of persons as well as places, e.g., Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and that the warrantless arrest of persons constitutes one category of seizures which must be "reasonable" under the dictates of the amendment. Id. All arrests, and indeed, seizures which lack some characteristics of formal arrests, are presumptively unreasonable unless supported by probable cause. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Consequently, in evaluating whether appellant's concededly warrantless arrest was valid, the threshold inquiry must be whether there existed probable cause for such an arrest.

Appellant contends that there was no probable cause to arrest him, because the government's evidence consisted only of information supplied by Catala. According to appellant, Catala's information did not have sufficient indicia of reliability under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), to permit the government to derive probable cause from it. Appellant further argues that the telephone calls and taped conversation were insufficient to provide corroboration of the informer's evidence. We find this argument peccant.

We note at the outset that appellant's reliance on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, is misplaced. As outlined in that case and its progeny, e.g., Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), an affidavit provides sufficient basis for a finding of probable cause if it contains facts from which a magistrate can find that conclusions of the affiant and informer are warranted, as well as additional facts sufficient to permit a magistrate to conclude both that the informer's information is reliable and that the informer is credible. This two-pronged test, however, was replaced by a "totality of circumstances" test in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See also Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). Under that test, a deficiency in one Aguilar prong may be compensated for by a strong showing in the other if, in the magistrate's judgment, the circumstances so permit. Deference is given to the decision of the magistrate if there is a "substantial basis" for the finding. Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721.

Even if the appellant had selected the correct test, however, these cases relate only to the sufficiency of affidavits supporting arrest warrants. In this case, there was no such warrant.

Probable cause to make an arrest exists where the facts and circumstances of which the arresting officer has knowledge would be sufficient to permit a reasonably prudent person, or one of reasonable caution, to conclude that an offense has been, will be, or is being, committed. See Michigan v. De Fillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979); United States v. McQueeney, 674 F.2d 109 (1st Cir.1982); United States v. Klein, 522 F.2d 296, 299-300 (1st Cir.1975); United States v. Mark Polus, 516 F.2d 1290 (1st Cir.), cert. denied, 423 U.S. 895, 96 S.Ct. 195, 46 L.Ed.2d 127 (1975). Furthermore, the quantum of evidence necessary to support probable cause must satisfy only this objective standard, United States...

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