U.S. v. Magana
| Decision Date | 12 February 1975 |
| Docket Number | No. 74-1635,74-1635 |
| Parties | UNITED STATES of America, Appellee, v. Victor F. MAGANA, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alvin S. Michaelson (argued), Los Angeles, Cal., for appellant.
Howard Matz (argued), Los Angeles, Cal., for appellee.
Before MERRILL and GOODWIN, Circuit Judges, and WOLLENBERG, * District Judge.
Victor F. Magana challenges the district court's refusal to suppress the evidence which led to his conviction under 21 U.S.C. §§ 841(a)(1) and 846.
On October 12, 1973, Officer Davenport of the Los Angeles Police Department received a tip from a reliable informant that two of his acquaintances (Bugarin and Gianetti) were prepared to sell Davenport eight ounces of heroin. The transaction was expected to take place the next afternoon.
Davenport and the informant met Bugarin near a residence at 10942 Hulme Street, Lynwood, California. Bugarin and the informant entered the house, and shortly thereafter returned to Davenport's car. The informant told Davenport that he had seen the heroin. Acting satisfied with the pending purchase, Davenport went to the trunk of his car, pretending to get the money to pay for the heroin. Davenport blew his nose, a prearranged signal to police officers hidden nearby. The officers came out of hiding and arrested Davenport, Bugarin, and the informant.
Two other officers (Ripley and Stanley) had established a stakeout near the residence. Their mission was to await the arrival of the undercover team and ensure Davenport's safety. When Davenport signaled, Ripley and Stanley drove into the driveway of the Hulme Street residence, where they saw a man (Magana) standing in the open garage. As the officers continued driving, Magana walked to the open garage door. Officer Ripley testified that he showed Magana his badge, and then saw Magana throw something down. Officer Stanley arrested Magana. After Stanley had arrested Magana, Ripley went into the adjacent garage and saw two condoms containing heroin. (The heroin was in plain view to one standing in the driveway near the garage, but Ripley said he discovered it only after he had entered the garage.)
Prior to Davenport's signal, Ripley had seen Magana come from the front door of the house and walk down the driveway toward the garage. Ripley knew after the signal that an illegal transaction was in progress. Ripley did not know whether additional contraband or participants in the heroin scheme remained at the Hulme Street location. However, Ripley did have probable cause to believe that Bugarin had an uncaught partner in crime (Gianetti), even though the officers did not say they thought Magana was Gianetti. The officers did not know whether Magana was connected with Bugarin; they knew only that Magana was at a suspicious place at a suspicious time.
With the foregoing facts before him, Ripley had probable cause, after he was in the Hulme Street driveway, and after he saw Magana throw something away, to believe that Magana was one of the men the officers were seeking in connection with the heroin transaction just completed. If Ripley and Stanley were lawfully in the driveway, then the arrest of Magana without a warrant was lawful, and the evidence which flowed from that arrest was not vulnerable to Magana's motion to suppress.
We turn then to the question whether, on these facts, police officers have the right to drive into a private driveway to see whatever is there to be seen and to be in a position to follow up their investigation with an arrest, a search, and a seizure of evidence if further facts unfold.
The government contends that Magana's driveway is not protected by the Fourth Amendment. In United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974), discussing the validity of a search originating with an entry upon a driveway, this court stated:
The question deferred in Bustamante-Gamez is before us again. The driveway where Magana was arrested was within the curtilage of the house Magana was using, but "a reasonable expectation of privacy," and not common-law property...
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