U.S. v. Gray
| Decision Date | 09 September 1980 |
| Docket Number | No. 79-1034,79-1034 |
| Citation | 626 F.2d 102 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee GRAY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John C. Gibbons, Asst. U. S. Atty., Sacramento, Cal., argued for plaintiff-appellee; Harry E. Hull, Jr., Asst. U. S. Atty., Sacramento, Cal., on brief.
Martin F. Jennings, Jennings & Jenks, Sacramento, Cal., for defendant-appellant.
Appeal from the United States District Court for the Eastern District of California.
Before MERRILL, TRASK and SNEED, Circuit Judges.
Appellant was convicted of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1976). He contends that his conviction was based on evidence attributable to a warrantless arrest and search which should have been suppressed and on a statement of stipulated facts which was obtained without a proper waiver of his trial rights. We conclude that appellant's contentions are without merit and affirm the conviction.
On the morning of December 15, 1977, Agent Cameron of the Drug Enforcement Administration learned through an informant, Frederick Surprison, that appellant had cocaine for sale. Cameron instructed Surprison to go to appellant's residence and discuss a possible sale. At about 1:15 p. m During the evening, Surprison attempted to contact appellant again. At about 8:30 p. m., he succeeded in reaching appellant by phone, and the two discussed a sale of cocaine. In this conversation, which was monitored by Agent Cameron, Surprison said that he was having dinner with the people who were interested in buying the cocaine, and that he would call back later that night. Appellant indicated that if the sale did not take place that night the deal would be called off.
Surprison telephoned Cameron to report that he had visited appellant at appellant's residence in South Lake Tahoe, California, and had seen about six ounces of cocaine in plastic bags that were themselves contained in a larger paper bag. Cameron and several other DEA agents then drove from Reno, Nevada to South Lake Tahoe, and at about 4:00 p. m., they began surveillance of appellant's house. Two agents also contacted the district attorney of El Dorado County and sought to obtain a search warrant. The district attorney declined to apply for a warrant, stating that he wanted more evidence of probable cause, such as a monitored conversation between Surprison and appellant.
Throughout the evening the agents continued to seek a search warrant. Because the district attorney had told the agents that neither he nor his assistants would be available that night, they tried to reach the federal magistrate at his office and his home and also at places he was known to frequent. This effort failed.
The agents previously had also asked the district attorney about the possibility of getting a warrant from a state court judge. However, the nearest state judge resided in Placerville, some 55 miles away, and the roads were icy and hazardous because of a severe snowstorm which continued until 10:00 p. m. that night. After the 8:30 p. m. conversation between Surprison and appellant, the agents contacted an Assistant United States Attorney in Reno, who advised them that they had probable cause and should proceed to make the arrest. Nonetheless, they persisted in their vain efforts to obtain a warrant.
At about 10:50 p. m., Surprison again called appellant, and the two agreed that a sale of cocaine would take place an hour later. One of the agents, posing as a prospective purchaser, spoke with appellant during this conversation. Following this call, the agents decided to make the arrest. Using a ruse, they entered the house and found appellant and two other persons. Appellant was placed under arrest. While searching the house for other people or weapons, Agent Cameron observed in plain view in a bedroom a box with a mirror, a razor blade, and some white powder. The next day, after obtaining a search warrant, the agents searched the house again and found 219 grams of cocaine in plastic bags which were contained in a larger paper bag.
Appellant was indicted on January 4, 1978. After his motion to suppress the evidence obtained as a result of the warrantless arrest and the subsequent searches was denied, appellant waived his right to a jury trial and agreed to a trial by the court on the basis of a stipulated statement of facts. The court found appellant guilty, and he appeals.
Appellant's principal contention on this appeal is that his arrest was contrary to the Fourth Amendment and that evidence obtained as a result of that arrest should therefore have been suppressed. To support this he first argues that the DEA agents lacked probable cause to make the arrest because the information which they received from their informant, Surprison, did not satisfy the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Under the Aguilar test, information provided by an informant is sufficient to establish probable cause if the circumstances show that the information is reliable and that the informant is credible. United States v. Perez-Esparza, 609 F.2d 1284, 1287 (9th Cir. 1979); United States v. Lefkowitz, 618 F.2d 1313, at 1316 (9th Cir. 1980).
In this case, there is no dispute as to the reliability of the information given by Surprison, who had seen cocaine in appellant's home and had discussed a sale of cocaine with appellant just a few minutes before the arrest. Appellant maintains, however, that there was no reason to believe that Surprison was credible, since he had recently been arrested for distributing cocaine and had not previously provided the DEA with information. We disagree. DEA agents monitored or participated in two of Surprison's conversations with appellant, thus corroborating the information received from Surprison. Appellant suggests that Surprison could have been speaking with a confederate who was helping Surprison in a plot to frame appellant. The suggestion is unpersuasive. Surprison gave the agents detailed information and set up a sale of cocaine. Since his purpose in cooperating with the DEA was to secure more favorable treatment in his own case, Surprison had no motive to supply information that the subsequent search would show...
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