U.S. v. Delgadillo-Velasquez

• Decision Date: 01 September 1988
• Docket Number: No. 87-5158,D,DELGADILLO-VELASQUE,87-5158
• Citation: 856 F.2d 1292
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abdonefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1292

856 F.2d 1292

UNITED STATES of America, Plaintiff-Appellee, v. Abdon DELGADILLO-VELASQUEZ, Defendant-Appellant.

No. 87-5158.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 1988.

Decided Sept. 1, 1988.

Steve Cochran, John P. Martin, Deputy Federal Public Defenders, Los Angeles, Cal., for defendant-appellant.

William C. Price, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, NELSON and CANBY, Circuit Judges.

NELSON, Circuit Judge:

BACKGROUND

Appellant was indicted for possession with intent to distribute marijuana and cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Appellant filed a motion to suppress evidence and statements. The district court denied the motion. We reverse.

1. Pre-Arrest Information.

Inspector Richardson of the United States Marshal Service received a tip from Customs Agent Brown. Brown related to Richardson that a "reliable, confidential informant" told Brown that Ricardo Alvarado-Coronado ("Alvarado"), a known fugitive wanted for drug smuggling, lived at 1330 Wilmington Blvd., apartment number 3, in Wilmington, California. The customs agent indicated that the fugitive was using the name Abdon Delgadillo and that Alvarado had recently told the informant that he possessed three kilograms of cocaine for sale. The marshals obtained a printout on Alvarado, which contained a physical description and confirmed that he had used numerous aliases, including Delgadillo. They also obtained a 20 year-old photograph of the fugitive.

The next day, the agents conducted surveillance of the apartment building and photographed a Latin male at the building. A comparison of this photo with Alvarado's photo was inconclusive. Three days later the agents again conducted surveillance on the apartment building. They observed a Latin male leave apartment three, walk to the sidewalk, look around and check his watch. After a drive-by in the surveillance van, the agents could not determine that this person matched the Alvarado photograph. In fact, the person in question was appellant, Delgadillo-Velasquez, who was not the fugitive Alvarado.

The agents then saw another van drive up and park. Two men emerged carrying briefcases and met appellant. They all entered apartment three. About fifteen minutes later, one of the visitors left the apartment, looked around, went to a nearby store and then returned to the apartment. Fifteen minutes later all three men left the apartment. The agents, believing that they were intercepting a drug sale, approached the men with their weapons drawn, and ordered them to halt and lie face down on the street. They were handcuffed, searched for weapons, and their briefcases were searched. The agents told the three men that they were under arrest and administered Miranda warnings in Spanish.

2. The Searches.

Immediately after the arrest, two agents, Richardson and Maloney, went to apartment three. The door was slightly ajar and Upon return to the arrest scene they told appellant to accompany them to the surveillance vehicle, separating appellant from the other two men. During this time other agents had discovered from the landlord that appellant's name was Abdon Delgadillo-Velasquez and that he rented apartment three. At the police van, appellant was asked in rudimentary Spanish for consent to search the apartment. When he indicated assent, Richardson called over a Spanish-speaking agent (Vasquez) who asked him for consent to search again. Appellant was unhandcuffed. Appellant said that he would consent, and added that the marshals would find cocaine and marijuana in the apartment. Vasquez told appellant that he would need to sign a consent form, and Vasquez translated the form to appellant. The consent form states that a defendant need not consent and if a defendant does not consent, the officers will obtain a warrant before searching. Appellant signed a consent form printed in English. The agents entered the apartment and found two kilograms of cocaine in addition to the marijuana already discovered.

the marshals announced their presence, heard unidentifiable noises, entered and made a protective sweep of the premises, looking for other persons. They found marijuana in a closet. They discovered that the noises had been made by caged birds in the apartment.

Appellant entered a conditional guilty plea to Count One, possession with intent to distribute cocaine, Count Two of the indictment was dropped, and appellant was sentenced to five years imprisonment. Appellant is currently in custody.

The district court found that the May 10th seizure was either an arrest for which probable cause existed or an investigatory detention, supported by probable cause at the time the detention ripened into an arrest. The court also found that the second warrantless search was consensual and untainted by any prior improprieties. We disagree because we conclude that the May 10th encounter constituted an arrest lacking probable cause and that the second search was not consensual given the prior illegal arrest. Therefore, all evidence must be suppressed.

DISCUSSION

I. Probable Cause to Arrest Delgadillo-Velasquez.

A. Standard of Review.

The government bears the burden to show that a warrantless seizure does not violate the Fourth Amendment. United States v. Al-Azzawy, 784 F.2d 890 (9th Cir.1986), cert. denied, 476 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1987). We review the district court's finding of probable cause de novo. United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir.1985). The district court's findings of fact are reviewed for clear error. Al-Azzawy, 784 F.2d at 893.

B. Seizure versus Arrest.

Appellee argues that the seizure was merely an investigatory Terry-type stop and not an arrest. The agents' conduct at the time of arrest as well as an objective evaluation of the coerciveness of the approach both refute this contention. The agents approached with weapons drawn, cried halt, and required the three men to lie face down in the street while they were handcuffed. The agents told the men that they were under arrest and then read them the Miranda rights.

The show of force and detention techniques used in this context are indistinguishable from police conduct in an arrest. See United States v. Robertson, 833 F.2d 777, 780-81 (9th Cir.1987); see also Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979). The agents immediately told the men that they were under arrest. Appellee's contention that the officers believed that they were aborting a drug transaction is irrelevant. The proper focus when determining coerciveness or restraint sufficient to constitute an arrest or detention is not on the subjective belief of the agents. Rather we review the situation from the perspective of the person seized. Clearly, a reasonable

                innocent person in these circumstances would not have felt free to leave after brief questioning.   United States v. Pinion, 800 F.2d 976, 979 (9th Cir.1986), cert. denied, 480 U.S. 936, 107 S.Ct. 1580, 94 L.Ed.2d 770 (1987);  see Robertson, 833 F.2d at 780;  see also Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983).  We agree with the district court that appellant was arrested at the time he was seized on the sidewalk outside his apartment
                

C. Probable Cause to Arrest Appellant.

Because appellant was arrested when the officers approached, required him to lie face down in the street, and handcuffed him, the Fourth Amendment requirements of probable cause attached at this point. Royer, 460 U.S. at 502-03, 103 S.Ct. at 1326-27. Probable cause exists when, at the time of arrest, the agents know reasonably trustworthy information sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense. Pinion, 800 F.2d at 979; United States v. Howard, 758 F.2d 1318 (9th Cir.1985).

The district court found that probable cause existed based on the following information possessed by the marshals at the time of the arrest:

1. the untested tip from the informant that Alvarado lived at appellant's address and used an alias.

2. the printout regarding Ricardo Alvarado's criminal record, physical description and use of aliases which included the name mentioned by the informant.

3. a 20 year-old photograph of the fugitive Alvarado.

4. a photograph of a Latin male observed at the apartment building on March 7th, which was inconclusively compared with the 20 year-old photograph of the fugitive Alvarado and with appellant's appearance.

5. the activities of appellant and the two other men outside the apartment on March 10th.

From these facts the district court concluded that there was probable cause to believe that (1) appellant was the fugitive Ricardo Alvarado, and (2) a narcotics transaction was occurring during the March 10th surveillance of the apartment. We reject both of these conclusions. Probable cause requires both a reasonable belief that an offense has been or is about to be committed and that the suspect is the criminal. United States v. Moses, 796 F.2d 281, 283 (9th Cir.1986). Probable cause to believe that a drug transaction was taking place rested on the assumption that Ricardo Alvarado lived at apartment three.

Without the belief that Alvarado lived in apartment three, the officers knew only that a Latin male exited the apartment, went to the street, checked his watch and looked around. A van pulled up, two men with briefcases exited, met appellant, and they went inside the apartment. One visitor left, went to the store, returned and later they all left the apartment and walked toward the van. Such ambiguous conduct does not establish probable cause. See Pinion, 800 F.2d at 980 (ambiguous conduct of a person in proximity to crime scene does not establish probable cause); United States v. Strickler, 490...