U.S. v. Diaz-Lizaraza

• Decision Date: 27 January 1993
• Docket Number: D,No. 91-5719,DIAZ-LIZARAZ,91-5719
• Citation: 981 F.2d 1216
• Parties: , 37 Fed. R. Evid. Serv. 1095 UNITED STATES of America, Plaintiff-Appellee, v. Jorge Humbertoefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1216

981 F.2d 1216

61 USLW 2531, 37 Fed. R. Evid. Serv. 1095

UNITED STATES of America, Plaintiff-Appellee, v. Jorge Humberto DIAZ-LIZARAZA, Defendant-Appellant.

No. 91-5719.

United States Court of Appeals, Eleventh Circuit Jan. 27, 1993.

Joel Kaplan, Miami, FL, for defendant-appellant.

William C. Healy, Linda Collins Hertz, Lisa T. Rubin, Anne Ruth Schultz, Howard S. Dargan, Asst. U.S. Attys., Miami, FL, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY, DUBINA and CARNES, Circuit Judges.

FAY, Circuit Judge:

Defendant Jorge Diaz-Lizaraza was convicted of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Diaz appeals the trial court's denial of his motion to suppress evidence discovered after federal customs agents pulled Diaz's truck over following a controlled delivery of cocaine to his co-conspirator, Frank Posada. Because we find that the initial stop of Diaz was a legitimate Terry stop and that the subsequent searches of Diaz's truck and belongings were reasonable, we affirm the trial court's ruling. Diaz also appeals the trial court's ruling admitting evidence of Diaz's 1988 arrest for possession of marijuana with intent to distribute to show Diaz's intent to commit the charged offenses. Because this extrinsic evidence was relevant to the material issue of Diaz's intent, we affirm this ruling also.

FACTS

On September 4, 1990, customs agents in Miami arrested a cruise ship crew member named Cristobal Valencia as he attempted to smuggle two kilograms of cocaine into the United States in his sneakers. After his arrest, Valencia cooperated with the agents by contacting the owner of the cocaine, as he originally had been instructed to do upon reaching Miami. Valencia told the owner of the cocaine that his ship's imminent departure from the Port of Miami prevented him from delivering the cocaine as planned. Valencia suggested that his brother-in-law, "Tony," deliver the cocaine instead, and gave "Tony's" beeper number. "Tony" actually was an undercover agent named Jordan.

The owner of the cocaine called Jordan and told Jordan that his associate in Miami would contact him soon, using a code phrase and the beeper code number "44." On September 10, Agent Jordan received a call on his undercover beeper; the caller left a phone number followed by the code number "44." When Agent Jordan returned the call, he discovered that the number connected him with another beeper. In fact, it turned out to be defendant Diaz's beeper. After Jordan left his telephone number on Diaz's beeper, an individual identifying himself as "George" and reciting the prearranged code phrase called Jordan to arrange a meeting. As we discuss below, Agent Jordan later recognized the voice of "George" on the telephone as that of Diaz.

After several phone calls, Jordan and "George" agreed to meet at a Miami shopping center the next afternoon, and "George" gave a physical description of himself so Jordan could recognize him. The next day, Jordan and several other customs agents positioned themselves around the shopping center parking lot to await "George's" arrival. At the agreed-upon time, a white Ford and a blue truck entered the parking lot. Defendant Diaz later was identified as the driver of the truck; his co-conspirator Frank Posada drove the Ford. Diaz pulled the truck next to the Ford and spoke with Posada, but the agents could not hear the conversation. After Diaz motioned to Posada, the men parked their vehicles in different areas of the lot.

When Posada exited his car, the agents saw that he exactly matched the physical description of "George." Posada approached Jordan, recited the code phrase, and suggested that they conduct the transaction elsewhere. Jordan and Posada drove two blocks to another shopping center, where Jordan delivered the cocaine-laden sneakers to Posada in exchange for a $6,000 transportation fee. As Posada walked from Jordan's car back toward the shopping center where his car was parked, two customs agents arrested him.

Meanwhile, as Posada and Jordan had gotten into Jordan's car to drive to the transaction site, Diaz had exited the parking lot. Diaz first drove to a separate parking lot near where Jordan and Posada exchanged the money and cocaine. Coincidentally, Diaz parked directly behind one of the federal surveillance cars. When the agent left to provide back-up for Posada's arrest, Diaz also drove away, going in the opposite direction of the Posada arrest. Although agents suspected that Diaz was involved in the transaction, they had to abandon surveillance of Diaz to provide back-up for Posada's arrest. However, even though he was not actively surveilling Diaz, an Agent Anaipakos observed Diaz's truck pass the shopping center where Posada was several times.

Because Agents Jordan and Anaipakos were suspicious of Diaz's unusual activities, they followed his truck and stopped him in a nearby convenience store parking lot after Posada was arrested. Diaz's truck moved backward, striking the agents' car. Diaz then exited his truck and made a move toward his hip. Suspecting a concealed weapon, Jordan and Anaipakos exited their car with weapons drawn. After a pat down of Diaz revealed only a beeper, the agents reholstered their guns. The agents did not handcuff Diaz or remove his beeper, but they did ask his name, nationality, and home address. When Diaz responded, Agent Jordan immediately recognized his voice as that of "George" from the telephone conversations arranging the transaction.

Agent Anaipakos asked for and received permission to search Diaz's truck. As Anaipakos searched the cab of the truck, Jordan advised Diaz of his Miranda rights. As the search of Diaz's truck revealed nothing, Anaipakos momentarily left the scene to move his car, which was blocking the entrance to the convenience store parking lot. While Anaipakos moved his car, Jordan again patted down Diaz. This time, however, Jordan did not find the beeper that Diaz wore previously.

When Agent Anaipakos returned to Diaz's truck to complete the search, he saw on the floor of the truck the beeper that Diaz had been wearing moments before. Although the beeper had been functional when Diaz was wearing it, at this time the bottom of the beeper was unfastened and the batteries had been removed. A third customs agent who had arrived on the scene picked up the beeper and reinserted the batteries. He dialed the number that Jordan had dialed to contact "George," and the beeper sounded. After achieving the same result a second time, the agents placed Diaz under formal arrest.

After formally arresting Diaz, the agents searched the belongings on Diaz's person. In his wallet and address book, the agents found two scraps of paper bearing Agent Jordan's undercover beeper number and the code number "44." On one of the scraps of paper, the name "Tony" also was written.

DISCUSSION

Diaz appeals the trial court's denial of his motion to suppress evidence discovered after Agents Jordan and Anaipakos stopped him in the convenience store parking lot. Diaz claims that the initial stop was unreasonable because the agents lacked probable cause or a reasonable suspicion of criminal activity, as required by the Fourth Amendment. Diaz further contends that the search of his truck was impermissible because his arrest was not supported by probable cause, his consent to the search was not voluntary, and the search exceeded the scope of his consent. Diaz also argues that the activation of his beeper and the searches of his wallet and address book were unreasonable because agents lacked probable cause to arrest him. Therefore, Diaz argues, the trial court should have suppressed testimony that Agent Jordan recognized his voice, testimony that his beeper sounded when the agents dialed "George's" number, ¹ and evidence of the scraps of paper bearing Agent Jordan's undercover beeper number.

In considering the ruling on the motion to suppress, we review the district court's findings of fact for clear error. The district court's application of law to those facts is subject to de novo review. United States v. Franklin, 972 F.2d 1253, 1256 (11th Cir.1992). We find no error in the trial court's factual findings or legal conclusions and affirm the trial court's denial of Diaz's motion to suppress.

Investigatory Terry Stop

Law enforcement officers may briefly detain a person for an investigatory stop if they have a reasonable, articulable suspicion based on objective facts that the person has engaged, or is about to engage, in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry rationale allows police to stop a moving car based on a reasonable suspicion that its occupants are violating the law. United States v. Williams, 876 F.2d 1521, 1524 (11th Cir.1989). The reasonable suspicion required for a Terry stop is more than a hunch, at least "some minimal level of objective justification," taken from the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting I.N.S. v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)).

In this case, Agents Jordan and Anaipakos possessed a reasonable suspicion that Diaz was involved with co-defendant Posada in the conspiracy to deal cocaine. They knew that Diaz arrived at the shopping center with Posada, spoke with him, and remained in the parking lot in a surveillance position instead of entering one of the stores in the shopping center. In addition, Diaz drove back and forth several times in front of the shopping center where Posada and Jordan exchanged the cocaine and money. While none of these actions is criminal on its face, together they did provide the trained agents with...