U.S. v. Freitas

• Decision Date: 26 September 1983
• Docket Number: Nos. 80-1689,80-1718,s. 80-1689
• Citation: 716 F.2d 1216
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Medeiros FREITAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael E. BUSTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1216

716 F.2d 1216

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Medeiros FREITAS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael E. BUSTER, Defendant-Appellant.

Nos. 80-1689, 80-1718.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 15, 1981.

Withdrawn from Submission

Nov. 23, 1981.

Resubmitted June 11, 1982.

Decided April 25, 1983.

As Amended Sept. 26, 1983.

Sanford Svetcov, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Spencer W. Strellis, Oakland, Cal., and Richard P. Duane, Duane, Lyman & Seltzer, Berkeley, Cal., for defendants-appellants.

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

Before FLETCHER and CANBY, Circuit Judges, and COPPLE, ^* District Judge.

FLETCHER, Circuit Judge:

Following a trial on stipulated facts, appellants Buster and Freitas were convicted of violations of 21 U.S.C. Sec. 846 (conspiracy to distribute cocaine) and 21 U.S.C. Sec. 841(a)(1) (possession with intent to distribute cocaine). The compelling evidence in support of these convictions consisted of cocaine seized from a wicker basket found in the rear of a vehicle owned by Buster, and an additional amount seized from the inside of a piece of furniture that was stored in a rental storage space rented by Freitas. The significant question on appeal is whether this evidence was obtained illegally by the Government and should have been suppressed. The district court denied the appellants' motion to suppress. We conclude that although the suspicions of the federal officers whose warrantless search led to the discovery of incriminating evidence were not altogether unreasonable, they did not amount to probable cause to search, and therefore we reverse.

I FACTS

On May 29, 1980, appellants Freitas and Buster were arrested by FBI agents after they had stepped out of a Chevrolet van parked in the driveway of the residence of Elizabeth Kathleen Gray in Santa Rosa, California. Immediately following the arrest, the agents looked inside the rear of the van, where they found several sausage-shaped packages inside a wicker basket. The agents opened one package and found cocaine. In all, 2,610 grams of cocaine were in the packages. Later, FBI agents obtained warrants that led to the discovery of an additional 266 grams of cocaine and other drug paraphernalia. Because all of the evidence was discovered as a fruit of the search of the Chevrolet van outside the Gray residence, the critical question is whether the information known to the agents at the time of arrest amounted to probable cause to believe that the van contained evidence of criminal activity. All of this information was recited in an affidavit given by Special Agent Thomas J. Barrett after discovery of the cocaine, and may be summarized as follows.

In February, 1978, a "confidential source," who had "provided information in the past which resulted in at least fifteen indictments being issued in Federal cases," stated that Raymond Giarusso and a person named "Mike" were importing narcotics using a furniture company as a cover. The confidential source indicated that "Mike" lived in Concord, California.

Using telephone toll records and motor vehicle registration information, the FBI determined that Giarusso spoke frequently with Michael Buster, who lived in Pleasant Hill, California. A Concord police officer told the FBI that Buster had been a "subject of investigation" for narcotics distribution. A California Highway Patrolman stated that Buster worked as a salesman for a Cadillac dealership in Hayward, California, that he had seen Buster and Giarusso together on a number of occasions, and that Giarusso often drove Cadillacs supplied by Buster.

A second, unrelated informant, described by Agent Barrett as "a well-known associate of organized crime figures, who has furnished reliable intelligence information regarding organized crime figures that has been corroborated by independent investigation," advised agents in July, 1978, that three individuals known as "Mike, Willie and Ray" were importing narcotics using a furniture company as a cover. This second source stated that Ray now owned a T.V. store in Hayward but was formerly a driver for Global Van Lines. He also stated that Mike, Willie, and Ray had used Global to deliver narcotics shipments. When presented with the names of Michael Buster, William Morter, and Raymond Freitas, the informant said they were the people to whom he had referred. Freitas was a T.V. store owner and was a former Global driver.

The FBI monitored records of Global Van Lines and the U.S. Customs Service. These records indicated that Freitas had received two shipments of furniture from Peru in 1979, the year after the second informer tip was received.

In July, 1979, officials of Global advised agents that Freitas had requested delivery of a container of furniture to Pacheco, California from the Port of San Francisco. Surveillance of the Pacheco address was set up on the date of delivery. A Global Van Lines truck was seen to arrive with a large container which Freitas and Earl James Link, Jr., helped the driver unload. Freitas and Link were later seen departing with two pillow-type bags. These bags were believed by the surveilling agents to contain narcotics.

The second confidential source was contacted regularly between September, 1979 and February, 1980. He indicated that Buster, Morter, and Freitas were still involved in narcotics importation but had switched to another moving company. The name of the new moving company was not known to the source.

On May 20, 1980, Global informed agents that Freitas had requested delivery of another container of furniture. The furniture container was later located in a warehouse in Oakland, California. Customs agents, alerted to the possibility that drugs might be included in the shipment, carefully ¹ checked the container, and found no evidence of drugs.

On May 29, 1980, a Global Van Lines truck picked up the furniture container and was followed to Santa Rosa, California, where the truck was met by Freitas and Link, driving in a blue Mercedes, who then escorted the truck to 3075 Coffee Lane, warehouse space # 5. Freitas and Link unloaded the truck and left. They returned, approximately 45 minutes later, in a grey BMW. They made several drives through the area over the course of the next hour.

Thereafter, Freitas and Buster were observed at the Coffee Lane warehouse space loading furniture items into a Chevrolet van. The van departed with Buster driving; Freitas remained at the warehouse. 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. Buster and Freitas were observed placing a large wicker basket in the rear of the van. They then drove to the Santa Rosa home of Elizabeth Kathleen Gray. FBI agents who had followed arrested Freitas, Buster, and Gray in front of the house, then looked in the back of the van, where they found packages of cocaine in the wicker basket.

II ANALYSIS

A. Standing.

The Government contends that appellant Freitas has failed to show that he Recent cases decided in this circuit suggest that the defendant seeking to suppress evidence on fourth amendment grounds must in every instance first establish that he had a legitimate expectation of privacy in the place where the allegedly unlawful search occurred. ² At the suppression hearing, counsel for Freitas had no opportunity to present evidence that would establish his expectation of privacy in the van. We remand his case for a hearing to address that issue. United States v. Lomas, 706 F.2d 886, 895 (9th Cir. 1983).

has standing to challenge the search of the vehicle driven by Buster. This argument was initially raised by the Government in its response to the defendants' motion to suppress at trial. The trial court, however, limited the scope of the hearing on the suppression motion to two issues: the nature of the wicker basket and the missing first page of the affidavit in support of the subsequent search warrants. At one point during the hearing, counsel for Buster attempted to broach the subject of standing. The court refused to hear any testimony concerning standing or to receive any offer of proof relevant to standing, stating that it "was not interested in," and "wouldn't have heard this testimony if there was any question of standing."

Furthermore, to deny the appellant standing when he was not permitted to offer his evidence on the issue would be to deny him a fair hearing.

B. Probable Cause.

The warrantless search of the van driven by Buster can be upheld only if supported by probable cause. ³ United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982). In determining whether the FBI had probable cause to search the rear of the van, we must consider whether at the time of the search " 'the facts and circumstances within [the agents'] knowledge and of which they had reasonably trustworthy information [were] sufficient in themselves to warrant a man of reasonable caution in the belief that' an item subject to seizure" would be found in the van. United States v. Garza-Hernandez The primary evidence of criminal activity relied upon by the FBI agents to justify their search in this case was the hearsay information provided by informants. All of the other surveillance observations and results of investigation recited by Agent Barrett in his affidavit were innocuous, and did not establish cause to suspect criminal activity except insofar as they tended to corroborate the informant reports. ⁴ Under these circumstances, we must apply the test developed by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) for...