U.S. v. Fixen

• Decision Date: 17 January 1986
• Docket Number: No. 85-1129,85-1129
• Citation: 780 F.2d 1434
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward FIXEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1434

780 F.2d 1434

UNITED STATES of America, Plaintiff-Appellee, v. Edward FIXEN, Defendant-Appellant.

No. 85-1129.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 13, 1985.

Decided Jan. 17, 1986.

Brian C. Leighton, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.

Joel Levine, Stilz, Boyd & Levine, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of California Hon. Edward Dean Price, Judge Presiding.

Before GOODWIN, NELSON and CANBY, Circuit Judges.

NELSON, Circuit Judge:

Pursuant to a conditional plea of guilty for possession with intent to distribute cocaine, defendant Fixen appeals the district court's denial of his motions to suppress evidence and to disclose the identity of a confidential informant. We affirm the district court's order denying both motions.

BACKGROUND

Defendant Edward Fixen was suspected of cocaine trafficking. An investigation into Fixen's activities was initiated and a confidential informant was contacted. During the course of surveillance, Fixen was observed meeting with known cocaine traffickers. Subsequently, the informant met with Fixen to arrange delivery of a quantity of cocaine. The informant advised police that Fixen's source-of-supply was a Latin male from the Los Angeles area. On May 10, 1984, Fixen was observed travelling to Los Angeles with an unknown woman later identified as Lois Wright. After eating lunch, Fixen and Wright were observed sitting on a bench until a green Volkswagen pulled up. Thereafter, Fixen and Wright drove their vehicle out of the parking lot and were followed by the Volkswagen. The two cars pulled into another parking lot and a Latin male was observed exiting the Volkswagen and entering Fixen's car. The Latin male was carrying an attache case and a brown bag. Fixen's vehicle then departed the parking lot and drove around for a short period of time. When the vehicle returned, the Latin male exited carrying only the attache case. After Fixen returned to Bakersfield, his car was intercepted and a brown bag with approximately one kilogram of cocaine was found on the floor. Fixen was arrested for conspiracy to distribute cocaine (Count I) and possession with intent to distribute cocaine (Count III). He thereafter made incriminating statements to police.

Fixen filed a motion for disclosure of the informant's identity. This motion as well as a subsequent motion for reconsideration was denied. Fixen's motion to suppress the physical evidence and his post-arrest statements was likewise denied.

Pursuant to an agreement with the Government, Fixen entered a plea of guilty on Count III upon stipulation that he could preserve an appeal on the denial of his pre-trial motions. He now appeals to this court in hopes that we will reverse the district court's denial of his motions to suppress evidence and to disclose the informant's identity.

ISSUES PRESENTED

I. Did the district court err in concluding that Fixen's arrest was based on probable cause?

II. Was the seizure of a brown paper bag containing cocaine from the passenger compartment of Fixen's car justified as a search incident to a lawful arrest?

III. Should Fixen's post-arrest statements have been suppressed as the fruit of an illegal arrest?

IV. Did the district court err in refusing to require the government to disclose the identity of the informant?

DISCUSSION

I. PROBABLE CAUSE

A. Standard of Review

We review de novo the district court's determination of probable cause to support

                a warrantless arrest.   Trenouth v. United States, 764 F.2d 1305, 1307 (9th Cir.1985);  United States v. Howard, 758 F.2d 1318, 1319 (9th Cir.1985). 1
                

B. Analysis

Probable cause for a warrantless arrest exists if "under the totality of the facts and circumstances known to the arresting officer,a prudent person would have concluded that there was a fair probability that the suspect had committed a crime." United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir.1984). See also United States v. Woods, 720 F.2d 1022, 1028 (9th Cir.1983).

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court reviewed a magistrate's finding of probable cause and his accompanying decision to issue a warrant. The Gates Court discarded the previously-utilized Aquilar-Spinelli ² "two-prong" test of the reliability of informants' tips and instead adopted a "totality of circumstances" approach. Under the new analytical structure, the issuing magistrate assesses an informant's "veracity," "reliability," and "basis of knowledge" under the totality of the circumstances in determining the value of the informant's report in establishing probable cause. Gates, 462 U.S. at 230, 103 S.Ct. at 2328. Since "the standards applicable to the factual basis supporting the officer's probable-cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate's assessment," Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306 (1971), we must ascertain whether the instant situation would at least justify a magistrate's issuance of a warrant.

The factual situation in Gates is similar to the case sub judice. In Gates, the following anonymous letter was received by police:

[A] couple in your town ... strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums.... Sue his wife drives their car to Florida, ... where she leaves it to be loaded up with drugs, then Lance flys down and drives it back.... May 3 she is driving down there again and Lance will be flying down in a few days to drive it back....

They brag about the fact they never have to work and make their entire living on pushers.

* * *

* * *

Gates, 462 U.S. at 225, 103 S.Ct. at 2325. Surveillance of the couple substantially corroborated the letter's predictions, and the couple was ultimately arrested. A subsequent search yielded approximately 350 pounds of marijuana. The Court observed, however, that "[t]he letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer's predictions regarding the Gateses' criminal activities." Id. at 227, 103 S.Ct. at 2326. The Court further noted that the couple's travel was "as suggestive of a pre-arranged drug run, as it is of an ordinary vacation trip." Id. at 243, 103 S.Ct. at 2335. Nonetheless, the Court reversed the Illinois Supreme Court's decision which objected Similarly, this court, in United States v. Woods, 720 F.2d 1022 (9th Cir.1983), affirmed a district court's after-the-fact decision that probable cause existed when the defendant was arrested. In Woods, a previously reliable tipster informed police that a drug transaction was to transpire at the airport:

                to the magistrate's finding of probable cause:  "[I]n this case, just as in Draper [Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) ], seemingly innocent activity became suspicious in light of the initial tip."   Gates, 462 U.S. at 243 n. 13, 103 S.Ct. at 2335 n. 13.  To the Gates Court, the officer's corroborative efforts were dispositive:  " '[B]ecause an informant is right about some things he is more probably right about other facts;'  ...  including the claims regarding the [defendant's] illegal activity."   Id. at 244, 103 S.Ct. at 2335 (quoting Spinelli, 393 U.S. at 427, 89 S.Ct. at 594 (White, J., concurring))
                

[The informant] told [police] that [defendant] was approximately 32 to 33 years old with dark curly hair and was seven to eight months pregnant. Her son [who was to accompany defendant] was four to five years old. [The informant] also reported that [defendant] was going to meet a plane arriving between 12:00 and 12:30 p.m. The arriving passenger would be a woman in possession of a quantity of cocaine. [Defendant] would be carrying approximately $7,000. The transaction would take place at the airport and the woman delivering the cocaine would take a return flight that same day.

Id. at 1024. Surveilling the defendant, the police objectively verified the tip. The police further observed a "money show" and noted that both participants appeared to be "apprehensive." Id. Once again, that "[t]he informer's tip was verified by the officer's personal observations" proved determinative. Id. at 1027.

Fixen, however, primarily relies upon United States v. Freitas, 716 F.2d 1216 (9th Cir.1983). In Freitas, a previously reliable informant indicated two individuals were importing narcotics using a furniture company as a cover. Another reliable and unrelated informant indicated the same. Consequently, police conducted surveillance of defendants:

[Defendants] were observed at the ... warehouse space loading furniture items into a Chevrolet van. The van departed with [one defendant] driver.... The van was observed taking a circuitous route through the area, which the surveilling agents characterized as evasive driving designed to prevent surveillance. Eventually the van returned to the warehouse. [Defendants] were observed placing a large wicker basket in the rear of the van.... FBI agents arrested [defendants] and ... found packages of cocaine in the wicker basket.

Id. at 1219. Significant to the Freitas court was the fact that "the primary evidence ... was the hearsay information provided by the informants. All of the other surveillance observations and results of investigation recited by Agent Bassett in his affidavit were innocuous, and did not establish cause to suspect criminal activity insofar as they tended to corroborate the informant reports." Id. at 1221. Concluding that the informant's reports had not been sufficiently detailed or corroborated, we reversed the district court's finding that probable...