U.S. v. Disla

Decision Date08 December 1986
Docket NumberNo. 85-5256,85-5256
Citation805 F.2d 1340
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Victor Montano DISLA, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Bruce R. Castetter, Asst. U.S. Atty., argued; Peter K. Nunez, U.S. Atty.; Bruce R. Castetter, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Eugene G. Iredale, San Diego, Cal., for defendant-appellant.

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

Before ANDERSON, POOLE and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Victor Montano Disla ("Disla") appeals from his convictions for conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (Count I); possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (Count II); aiding and abetting the possession of cocaine with intent to distribute, in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1) (Count III); and wire fraud, in violation of 18 U.S.C. Sec. 1343 (Count IV). Disla argues that the admission into evidence of certain physical evidence and a statement he made after his arrest violated the fourth and fifth amendments of the Constitution. He also challenges the sufficiency of the evidence as to Counts I and III. We hold that the district court did not commit reversible error in denying Disla's constitutional challenges. We affirm as to Counts I, II and IV. We reverse as to Count III.

I FACTS AND PROCEEDINGS

Investigators at Pacific Bell suspected that a "blue box" was being used at the telephone located at 602 Anita Street in San Diego (the "Anita Street apartment"). A "blue box" is an electronic device used to bypass the billing system for long-distance calls. Inspector Aldo Nevarez, a security investigator for Pacific Bell, obtained a search warrant from the state municipal court to search the apartment. The warrant authorized a search for:

1. A "blue box;"

2. Tape recorders and tapes containing recorded multi-frequency tones;

3. Electronic circuit diagrams, instructional material and electronic components used to construct the "blue box;"

4. Any material, "printed or otherwise," which make reference to "blue boxing," "phone hacking," or "phone phreaking;"

5. Phone directories, phone lists, or phone numbers consisting of specified numbers.

Officers at the San Diego Sheriff's Office assisted in the execution of the warrant which took place on April 16, 1985. None of the officers was involved in drug enforcement or suspected that drugs might be found at the Anita Street apartment. The officers met with Nevarez before the search and passed around the warrant. Nevarez told them that a "blue box" "could be a medium-sized tape recorder down to as small as a pack of cigarettes, or even smaller...." Nevarez also stated that a "blue box" would be hard and not flexible to the touch, and that it could be located virtually anywhere in the apartment. One of the officers testified that the search warrant The officers searched the apartment and discovered several items:

authorized the search for a "blue box, item for making long-distance phone calls, along with possibly tape recorders or bits and pieces of paper with specific phone numbers written on them."

a. Cocaine in Sock--Officer Macleod opened a dresser drawer in the master bedroom. The drawer contained watches and other small items. He also saw a pair of black socks in the drawer. They had been folded over and were the only clothing item in the drawer. When he pushed one of them aside, "it felt much heavier than a normal sock would feel, so I opened up the sock to see what was in it, suspecting that it might be this box." Macleod said that he did not squeeze the sock, but that when he picked it up he noticed its weight and felt a "cushioning effect." Macleod opened the sock and discovered a clear plastic bag containing a white substance. The white substance was later identified as 103 grams of cocaine.

b. Identification Items--Officer Anderson found a passport and an alien registration card in the same drawer where the cocaine was found. Disla's name appeared on both documents, and the Anita Street apartment was listed as his address.

c. Cocaine Behind Stove--Officer Gassaway searched the kitchen and noticed that the stove was off-line from the wall. He slid the stove away from the wall and found a white plastic shopping bag. It contained several clear plastic bags each containing a white substance. Gassaway testified at a pretrial hearing that he did not recall whether the shopping bag was open when he found it, but he later testified that the bag was in fact open. Gassaway recalled that the white shopping bag (which contained the clear plastic bags) was "soft to the touch." The white substance in the clear plastic bags was later identified as 912 grams of cocaine.

d. Money Under Refrigerator--Officer Gassaway also found a brown grocery-size bag containing about $26,000 in bundled money under the refrigerator.

After the officers discovered the cocaine and money, Nevarez halted the search and obtained a new search warrant authorizing a search for drugs. The officers resumed the search only after a new warrant was obtained. They found an empty container for 500 grams of lactose which is commonly used to dilute cocaine. Numerous photographs of appellant Disla were also found in the apartment.

While the police were still at the apartment, Officer Zamora spoke with several neighbors and obtained a description of the individuals residing there. Zamora knew that cocaine had been discovered. Disla and his brother, Julio Disla, drove up to the apartment in a Datsun 510, got out of the car and began walking toward the Anita Street apartment. Zamora testified that when Disla made eye contact with him Disla turned and began walking away. Disla denied making a furtive gesture and claimed he was only walking toward the mailbox. Zamora arrested and searched Disla. Disla had in his possession a "Gencom Beeper," a $20 bill torn in half, $709 in cash, a ring inscribed with the name "Cuto" (subsequently determined to be Disla's pseudonym), a key to the Anita Street apartment, and a phone list with numerous names. Zamora arrested Disla, handcuffed him, and took him into the apartment. Before Disla was advised of his Miranda rights, Zamora asked him his name, age, address and employment status. These questions were contained in a "DEA 202 Form" which Disla was asked to complete. Disla stated he resided at the Anita Street apartment.

Disla was incarcerated in the Metropolitan Correctional Center at San Diego, California on the day of his arrest, April 16, 1985, and he remained in custody at the facility from that time through his trial and sentencing.

On April 24, 1985, Officer Gouge observed an individual identified as Victor Franco get into the car which Disla left at the Anita Street apartment. Franco drove the car to his residence at 3467 Newton Street, San Diego (the "Newton Street Telephone records from the Metropolitan Correctional Center established that between May 5 and May 8, 1985 about forty collect telephone calls had been made from the twelfth floor of that facility (the floor on which Disla was housed) to the Anita Street apartment. The phone records also revealed that several calls had been made from the twelfth floor of the Metropolitan Correctional Center to the Newton Street apartment and to an apartment at 574 Castleman Street, Chula Vista (the "Castleman Street apartment"). There was no evidence as to the content of the calls.

apartment"). Gouge discovered that Disla was listed as the owner of the car on the Department of Motor Vehicles registration certificate, and the Newton Street apartment was the address shown on the certificate.

On May 5, 1985, a telephone call was made from the Castleman Street apartment to the phone number of the residence of Porfirio Rene Garcia in Brooklyn, New York. A telephone call had previously been made from the Castleman Street apartment to Garcia's New York residence on January 19, 1985. Disla testified he lived at the Castleman Street apartment from the time he arrived in San Diego in late 1984 until his arrest in April 1985. His passport showed that he was outside the United States of America when the January 19, 1985 telephone call was made.

On May 8, 1985 (while Disla was still in jail), Garcia and his companion, Jose Diaz, went to the American Airlines ticket counter at a New York airport, paid cash for two one-way tickets to San Diego, and checked in a bag for transportation on the flight. Officials at the New York airport observed that Garcia and Diaz looked nervous. Unknown to the two of them, the bag they had checked was searched at the New York airport. Officials there discovered 600 grams of cocaine and alerted authorities in San Diego. When Garcia and Diaz arrived at the San Diego airport the two were arrested. A post-arrest search of Garcia revealed he was carrying a San Diego bus schedule. Written on the schedule were directions to the Newton Street apartment and the name "Victor." Appellant Disla's first name is "Victor," and "Victor" is also the first name of Victor Franco, an uncharged co-conspirator in Count I and named but uncharged in Count III. Victor Franco lived at the Newton Street apartment.

On May 9, 1985, two calls were made from the Castleman Street apartment to Garcia's residence in Brooklyn. Two more calls were made to the same address two days later. Phone records from the Metropolitan Correctional Center indicated that eight telephone calls were made from the twelfth floor of that facility to the Castleman Street apartment between May 10 and May 12.

In August 1985, Disla was indicted (by superseding indictment) on four counts. Count I alleged a conspiracy among Disla, Jose Diaz, two uncharged co-conspirators, ...

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  • State v. Adamcik
    • United States
    • Idaho Supreme Court
    • January 25, 2012
    ...critical inquiry is whether "[i]n light of both the context of the questioning and the content of the question," United States v. Disla, 805 F.2d 1340, 1347 (9th Cir. 1986), the statements made by the officers were of the sort that "the police should know [are] reasonably likely to evoke an......
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    ..."routine booking interrogation", involving questions related to the suspect's name, address and related matters. See U.S. v. Disla, 805 F.2d 1340, 1347 (9th Cir.1986). The case law has held that these questions, even when asked for arrest, rarely elicit incriminating responses because they ......
  • State v. Adamcik, Docket No. 34639
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    ...critical inquiry is whether "[i]n light of both the context of the questioning and the content of the question," United States v. Disla, 805 F.2d 1340, 1347 (9th Cir. 1986), the statements made by the officers were of the sort that "the police should know [are] reasonably likely to evoke an......
  • State v. Adamcik, Docket No. 34639
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    • November 29, 2011
    ...critical inquiry is whether "[i]n light of both the context of the questioning and the content of the question," United States v. Disla, 805 F.2d 1340, 1347 (9th Cir. 1986), the statements made by the officers were of the sort that "the police should know [are] reasonably likely to evoke an......
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