U.S. v. Espinosa

• Citation: 827 F.2d 604
• Decision Date: 09 September 1987
• Docket Number: No. 86-5008,86-5008
• Parties: 23 Fed. R. Evid. Serv. 963 UNITED STATES of America, Plaintiff-Appellee, v. Enrique ESPINOSA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 604

827 F.2d 604

23 Fed. R. Evid. Serv. 963

UNITED STATES of America, Plaintiff-Appellee, v. Enrique ESPINOSA, Defendant-Appellant.

No. 86-5008.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 10, 1987.

Decided Sept. 9, 1987.

Joseph T. Vodnoy, Los Angeles, Cal., for defendant-appellant.

Robert C. Bonner, Los Angeles, Cal., for plaintiff-appellee.

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

Before NELSON, HALL and THOMPSON, Circuit Judges.

NELSON, Circuit Judge:

Espinosa appeals from his conviction under 21 U.S.C. Sec. 841(a) (1982) for one count of possession of cocaine with intent to distribute. He challenges the district court's rulings on nine issues. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). We affirm.

BACKGROUND

At approximately 12:00 p.m. on June 25, 1985, two police officers in a patrol car near Orion and Nordhoff streets in Van Nuys, California, observed the defendant Espinosa holding a large amount of money in his hand and speaking to another man. The area is known for drug trafficking. The defendant appeared to be about to give the money to the second man. When the two men saw the officers and the officers approached them, the defendant put the money in his pocket and began to walk away at a fast pace. The second man ran up the stairs of an apartment building and disappeared. The officers, believing they were witnessing a drug transaction, approached the defendant and asked him for identification. The defendant said that he had none. The officers told him that he was being detained for suspicion of involvement in narcotics sales and conducted a weapons pat-down, which revealed a bulge caused by about $300 in cash. The defendant stated that his name was "Henry Rodriguez," that his birth date was February 10, 1955, and that he lived at 14319 Addison, in Sherman Oaks. He said he was visiting a friend in the area, but could not identify the friend or explain why his friend had run away.

While Officer Keenan questioned the defendant, Officer Baello ran the name "Henry or Enrique Rodriguez" through the police car computer. The computer check reported a misdemeanor traffic warrant for an Enrique Rodriguez with a birth date of February 4, 1954, and with height and weight listings (5'5" and 139 lbs.) different from the officers' initial estimates (5'7" to 5'10" and 170 to 180 or 200 lbs.). ¹ Officer Keenan told the defendant that he would be taken to the Van Nuys police station for verification of the traffic warrant. The defendant protested that he was not subject to any traffic warrant and requested to be taken to his car approximately 150 to 250 feet away, where he had a driver's license. With Espinosa's consent, the officers opened the car door and retrieved a brown purse containing a driver's license with the name Henry Rodriguez, a birth date of March 5, 1954, and an address of 6660 Chatsworth, North Hollywood. Because of the discrepancies between the birth date and address the defendant gave orally and those listed on his license, and the officers' knowledge that no such street address existed, Officer Baello ran a second computer check, which revealed a felony warrant for an "Anibal Rodriguez," an armed and dangerous suspect, who had a birth date of February 10, 1955.

Officer Keenan asked the defendant's permission to search the car and then the trunk. The officers later declared that Espinosa consented; Espinosa declared that he did not. The officers found no weapons or contraband in the car, but found that the registration was not in the defendant's name. In the trunk, the officers found an open canvas bag with a large sum of money At the station, a narcotics dog twice alerted to the presence of cocaine residue on the money. Police learned Espinosa's true identity from a fingerprint check and released him. The money was retained for narcotics forfeiture processing by federal authorities; some keys and a card from his wallet for an apartment building on Sepulveda Boulevard were also retained.

(later found to total $146,400). The bag was seized and the defendant was taken to the police station.

On August 14, 1985, Los Angeles Police Department Detective Altieri received a tip that a male Latin between 30 and 40 years old, 5'8" to 5'10" tall, weighing about 200 pounds, with black hair and full beard, and residing in Room 200 of the Park Plaza Motel in Canoga Park, was believed to be dealing in narcotics. Altieri began investigating the tip. He learned that, although the room was rented to "Diane Pauley," a male Latin fitting the above description actually occupied the room. Altieri ran a computer check on "Diane Pauley's" license plate number and found that the car was registered to Rochelle Karen Millet, who was awaiting trial on a cocaine charge. Motel personnel identified a photograph of Millet as the woman who rented the room.

Altieri and others commenced surveillance of the apartment later that day. Over the next fourteen days, officers observed the defendant on several occasions driving a grey BMW and a Honda (neither of which could be traced to him) to a shopping center, a gas station, a restaurant, and a parking lot, where after placing calls on pay telephones he met briefly with individuals who drove up in cars and with whom he exchanged shopping bags and small plastic bags. On one trip he was given a full length fur coat. Immediately before or after three of the meetings, he traveled to an apartment complex on Sepulveda Boulevard, which he entered and then left within a brief period. On one occasion when the officers were able to view him at close range, the defendant was seen entering the Sepulveda apartment with a shopping bag whose sides stretched because of its contents and then leaving with an empty bag. On a second occasion, he entered empty-handed and left with a paper shopping bag. The name listed on the Sepulveda apartment mailbox and building directory was "J. Perez." The defendant had no visible means of support and did not act like a normal tourist. Altieri, an experienced narcotics detective of some fourteen years, formed the opinion that the defendant was engaged in narcotics transactions using the Sepulveda apartment as a "stash pad" for money or drugs.

On August 28, 1985, Detective Altieri and his partner sought and obtained a search warrant for a Park Plaza Hotel room into which the defendant had moved, the Sepulveda apartment, the BMW and the Honda, and

a male Latin, name unknown, referred to in affidavit as John Doe # 1. Described as male Latin, approximately 35 years of age, 5'8"/5'10", approximately 200 pounds with black hair and black full beard.

The police searched the defendant at the Park Plaza apartment and found $13,000 in cash, an address book, and keys to the Sepulveda apartment. Nothing was found in the Park Plaza apartment. In the Honda, police found a utility bill for the Sepulveda apartment. In the Sepulveda apartment, police found approximately 69 pounds of cocaine, mixing and packaging equipment, and narcotics ledger books whose entries matched those in the defendant's address book. Following the search, the police arrested Espinosa.

On September 24, 1985, Espinosa was indicted under 21 U.S.C. Sec. 841(a)(1) for one count of knowing and intelligent possession of approximately 69 pounds of cocaine with intent to distribute. The same day, the government filed an information charging that Espinosa's prior conviction for sale or transportation of cocaine under Cal. Health & Safety Code Sec. 11352 constituted a prior conviction that would warrant a sentence enhancement under 21 U.S.C. Secs. 841(b), 851. Espinosa pleaded not guilty.

The district court denied Espinosa's motions to suppress evidence obtained on June 25, 1985, and August 28, 1985. After trial,

the jury rendered a verdict of guilty. The district court sentenced Espinosa to 20 years and a $200,000 fine, plus a 5-year sentence enhancement. Espinosa timely appealed.

DISCUSSION

I. The Suppression Issues

A. The June 25 Encounter and Arrest

Espinosa first challenges the denial of the motion to suppress the money, keys, wallet, and other papers seized during the June 25 encounter with Officers Keenan and Baello. On appeal, Espinosa does not contest the district court's finding that he consented to the search of his car. He argues only that any consent was tainted by an illegal detention and arrest. See Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983).

1. The Initial Detention

Espinosa contends that the initial detention was illegal under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because Officers Keenan and Baello did not have an articulable, reasonable suspicion that the defendant had committed or was about to commit a crime. See Royer, 460 U.S. at 498-99, 103 S.Ct. at 1324-25; United States v. Sokolow, 808 F.2d 1366, 1369 (9th Cir.1987). We review the ultimate conclusion that a reasonable suspicion existed de novo and underlying factual determinations for clear error. United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir.1987); Sokolow, 808 F.2d at 1369 & n. 3; United States v. Erwin, 803 F.2d 1505, 1509-10 (9th Cir.1986).

The fourth amendment does not place restrictions on police officers who approach persons on the street and ask them questions, if the person is willing to listen and answer. Royer, 460 U.S. at 497-98, 103 S.Ct. at 1323-24; Martinelli v. City of Beaumont, 820 F.2d 1491, 1494 & n. 2 (9th Cir.1987); Sokolow, 808 F.2d at 1369. After the officers requested identification, however, they informed Espinosa that he was being detained to determine whether he was involved in a narcotics transaction. Thus, we must determine whether the information the officers had at that time was sufficient to constitute a reasonable, articulable suspicion that criminal activity was afoot. We may not consider any information that the officers...