U.S. v. Garza-Hernandez

• Decision Date: 10 June 1980
• Docket Number: GARZA-HERNANDEZ and R,79-2023,Nos. 79-2012,s. 79-2012
• Citation: 623 F.2d 496
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joelamon Vargus-Villareal, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 496

623 F.2d 496

UNITED STATES of America, Plaintiff-Appellee, v. Joel GARZA-HERNANDEZ and Ramon Vargus-Villareal,

Defendants-Appellants.

Nos. 79-2012, 79-2023.

United States Court of Appeals, Seventh Circuit.

Argued April 17, 1980.

Decided June 10, 1980.

Michael Guinan, Chicago, Ill., for defendants-appellants.

Thomas P. Sullivan, U. S. Atty., David C. Bohan, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before BAUER and CUDAHY, Circuit Judges, and NOLAND, District Judge. ^*

BAUER, Circuit Judge.

Defendants Joel Garza-Hernandez (hereinafter "Garza") and Ramon Vargus-Villareal (hereinafter "Vargus") were convicted by a jury of conspiring to distribute heroin in violation of 21 U.S.C. § 846 and of possession of heroin with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1). Each defendant was sentenced to ten years imprisonment on each count, the sentences to run concurrently; each was also sentenced to six years of parole to take effect after release from prison. The defendants appeal, alleging both that the trial court erred in failing to suppress evidence and that the evidence was insufficient to support the convictions. We affirm the convictions of both defendants on both counts.

I. Suppression of Evidence

A. Absence of Probable Cause to Search

Defendants first contend that a search of defendant Vargus' car was made without probable cause; they argue that heroin found in the search should therefore have been suppressed. ¹ After reviewing the transcript of the suppression hearing, we conclude, as did the district court, that facts known to the DEA agents at the time the search was made were sufficient to make out probable cause to search. These facts may be summarized as follows:

DEA agents learned from informant Manuel Delgadio that one Rene Villareal (apparently unrelated to defendant Vargus-Villareal) was trafficking in heroin and was using his gas station at 31st and Kedzie in Chicago in connection with his drug trade. DEA agents also learned that Villareal worked with one Arturo Vargus (also apparently no relation to defendant Vargus-Villareal) in selling heroin, and that they would use a "car switch" technique whereby they would borrow a heroin purchaser's car, drive it to a secret location where their heroin was hidden, place the heroin in the car, and then return the car to the purchaser. DEA agents began surveillance of Villareal's service station after learning these facts.

While conducting surveillance of the station, DEA agents saw Rojillio Chavez and other persons from a Phillips 66 service station located at 23rd and Western frequent Villareal's station. They also observed a male Latin come to the station in a car bearing a form in plain view that identified the car's owner as Armando Esparza of 3101 South Keeler, Chicago. DEA Agent Maurice Dailey ran a background check on Armando Esparza through NADIS, an international computer data bank of criminal intelligence information, and learned that Esparza had negotiated to sell heroin to an undercover DEA agent in 1977. Dailey also learned that Esparza had boasted to the agent of receiving frequent shipments of heroin. Dailey and other DEA agents then began periodic surveillance of Esparza's residence.

On April 17, 1979, DEA agents observed Francisco Esparza, Armando's brother, leave the 3101 South Keeler residence in a green and white Ford. The agents followed Francisco and observed him engage in circuitous driving at sharply varying speeds after reaching the vicinity of 63rd and Rockwell. From their training and experience, the agents knew that this type of driving was intended to reveal whether Francisco was being followed; the agents had often observed this type of driving by those engaged in illegal drug trade. The agents then saw Francisco park his car and enter a residence at 6324 Rockwell. Knowing that those who deal in heroin often store their stock of the drug in a place other than their residence both to conceal the location of the drug and to disassociate themselves from the drug, the agents suspected that the 6324 Rockwell address might be Esparza's heroin storehouse. After a few minutes had passed, the agents saw Francisco leave the Rockwell address carrying a brown paper bag that appeared to be half full. They followed Francisco's car to the vicinity of 47th and Cicero Avenue, where he resumed the circuitous driving pattern earlier observed. After parking the car, Francisco entered a residence at 4344 Kilpatrick with the bag, and he emerged shortly thereafter without the bag. He then returned to 3101 South Keeler. The 4344 Kilpatrick address was apparently the residence of Arturo Vargus, the man Delgadio had identified as Rene Villareal's accomplice in the heroin trade.

On April 19, 1979, DEA agents observed both Esparza brothers leave the South Keeler residence and drive in Armando's Pontiac to the vicinity of 22nd and Austin, where they began circuitous driving. Stopping at 16th and 51st Court, Francisco got out and entered a red and white Buick owned by defendant Vargus. The agents suspected the maneuver was the beginning of the "car switch" technique that informant Delgadio had told them was employed by Rene Villareal's heroin ring. This technique, the agents knew, was often employed by those who deal in heroin. The Esparzas then drove both cars to 63rd and Rockwell, where they resumed circuitous driving. They then parked the cars and entered the building at 6324 Rockwell. Fifteen minutes later Francisco reemerged and drove the red and white Buick to the rear of the building. Francisco then opened the trunk, Armando appeared from the building carrying a full paper bag, and, after looking up and down the alley, Armando placed the bag in the trunk of the Buick.

The Esparzas then drove back to Cicero, Francisco in Vargus' Buick and Armando in the Pontiac. They resumed circuitous driving when they reached the vicinity of 16th and 51st Court. Francisco then parked the Buick near the location from which it had been taken and the two brothers returned in the Pontiac to 3101 South Keeler.

About a minute after the Esparzas had left, defendant Vargus appeared near his parked Buick. He got into the car and drove it in a circuitous fashion for several minutes; he then returned it to a parking place. As Vargus got out of the car, defendant Garza appeared across the street. The two met and walked down a gangway at 1524 51st Court.

At about noon on that day, Dailey and other DEA agents observed Vargus and Garza emerge from the gangway. Vargus got in his red and white Buick, while Garza entered a yellow Buick parked nearby. Garza drove to a place on Cicero Avenue between 19th and 23rd Streets, where he parked and remained in the car. Meanwhile, Vargus drove his car in a circuitous manner, once driving into an alley filled with potholes and then accelerating out of the alley at a high speed. Eventually, Vargus drove past Garza, who was still in the parked car on Cicero Avenue, and Garza immediately began to follow Vargus.

The defendants drove, via Stevenson Expressway, to a shopping center parking lot at 71st and Pulaski. Vargus parked his car in a nearly empty portion of the lot; Garza parked some two hundred feet away among other cars. Both then entered several stores, made a telephone call, returned to the yellow Buick, and left in it. Vargus' red and white Buick remained in the lot.

During the next eight hours, between 1:00 p. m. and 9:00 p. m., Vargus and Garza returned to the lot about eight times and drove past the red and white Buick. During one such trip, the defendants placed a call from a phone booth in the shopping center.

Between 9:00 and 9:30 p. m., a tow truck from the Phillips 66 station at 23rd and Western approached the Buick. Rojillio Chavez, whom the agents had seen at Villareal's station at 31st and Kedzie, was driving the truck. Chavez hooked the Buick onto the tow truck and towed it to the Phillips 66 station. En route, Chavez stopped twice, got out of the truck, and looked up and down the street; he did not check the hoist either time. After arriving at the darkened and closed Phillips 66 station, Chavez started to move the Buick into a service stall. At this point agent Dailey gave orders to move in.

Dailey ordered Chavez out of the truck and asked him why he had towed the Buick. Chavez responded that his friend Jesus Martinez owned the car and had asked him to fix it. Dailey then asked for the keys. Chavez produced the ignition key. When Dailey asked for the trunk key Chavez responded, "I don't have to tell you anything." Another agent then questioned Chavez, and Chavez told him that he had never met the person who owned the Buick. At about this time, uniformed Chicago police arrived at the station in response to a citizen's mistaken report of a burglary. Shortly after the arrival of the uniformed police, DEA agents saw Vargus and Garza drive past the station. Dailey then opened the trunk of the car and found in a paper bag approximately twenty pounds of heroin worth about two and one-half million dollars at street value.

The standards governing inquiry into the presence of probable cause to search may be summarized as follows: Probable cause exists if " 'the facts and circumstances within (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' " an item subject to seizure will be found in the place to be searched. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925)). Probable cause is thus more than bare suspicion, but less than virtual certainty. Id. at 175, 69 S.Ct. at 1310. As the term itself implies, probable cause exists if the probability is that the thing sought is in the place to be searched; probabilities are...