U.S. v. Perez
| Decision Date | 02 October 1995 |
| Docket Number | 94-10314 and 94-10400,Nos. 94-10313,s. 94-10313 |
| Citation | 67 F.3d 1371 |
| Parties | 95 Cal. Daily Op. Serv. 7699, 95 Daily Journal D.A.R. 13,167 UNITED STATES of America, Plaintiff-Appellee, v. Louise Han PEREZ; Joseph E. Perez; and John Velasco Cruz, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David J. Highsmith, Highsmith & O'Mallan, Agana, Guam, for defendant-appellant Louise Han Perez.
Robert E. Hartsock, Assistant Federal Public Defender, Agana, Guam, for defendant-appellant Joseph E. Perez.
Howard Trapp, Howard Trapp Inc., Agana, Guam, for defendant-appellant John Velasco Cruz.
Karon V. Johnson, Assistant United States Attorney, Agana, Guam, for the plaintiff-appellee.
Appeals from the United States District Court for the District of Guam.
Before: PREGERSON, KOZINSKI, and HAWKINS, Circuit Judges.
Defendants-Appellants Louise Han Perez, Joseph E. Perez, and John Velasco Cruz were indicted with six others for conspiring to distribute heroin and cocaine. All three were convicted of distributing heroin in violation of 21 U.S.C. Sec. 841(a)(1) and being felons in possession of firearms in violation of 18 U.S.C. Sec. 922(g). Joseph Perez and John Cruz were also convicted of possessing heroin with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and using firearms during drug trafficking in violation of 18 U.S.C. Sec. 924(c). Louise Perez appeals her conviction and sentence, Joseph Perez appeals his conviction, but not his sentence, and John Cruz appeals his conviction and sentence. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part and reverse in part.
A grand jury indictment charged Louise Perez, Joseph Perez, John Cruz, and six others with conspiring to distribute narcotics, using firearms during drug trafficking, and being felons in possession of firearms. 1
In 1994, Louise Perez sold eleven rare coins for $500 to Mike Cummings, a professional coin dealer. When Cummings realized that the coins Louise Perez sold him matched the description from a report of stolen coins, he stopped payment on the $500 check to induce Louise Perez to return to his coin shop where the police could arrest her for selling stolen property. Louise Perez did return to Cummings' coin shop to receive payment for the coins, and Cummings gave her $500 in cash. As Louise Perez was returning to her car, the police arrested her for selling stolen property.
The arresting officers placed Louise Perez in the back of the squad car and proceeded to search her car without a warrant and without her consent. The officers found a rusty Davis .22 caliber pistol, in operable condition, in the driver's side door pocket. The officers also found a bindle of cocaine stashed inside a bible. A field test revealed that the cocaine weighed 1.0347 grams.
At trial, Louise Perez moved to suppress the evidence found in her vehicle because the search was conducted without a warrant, without her consent, and without probable cause. The trial court denied her motion. The jury convicted Louise Perez of being a felon in possession of a firearm. Louise Perez appeals this conviction. She contends that the trial court erred in denying her motion to suppress.
The jury also convicted Louise Perez for distributing heroin in violation of 21 U.S.C. Sec. 841(a)(1). The indictment stated that the defendants distributed heroin "[b]etween 1991 and December 28, 1993." Louise Perez appeals this conviction. She alleges that the indictment was fatally flawed for failing to allege specific dates of distribution. Louise Perez raises this issue for the first time on appeal.
The trial court enhanced Louise Perez's sentence four levels under U.S.S.G. Sec. 2K2.1(b)(5) for carrying a firearm in connection with another felony offense. Louise Perez also appeals her sentence. She maintains that the trial court erred in interpreting section 2K2.1(b)(5).
The trial court's determination that probable cause supported a warrantless search of a vehicle is a mixed question of law and fact reviewed de novo. United States v. Dunn, 946 F.2d 615, 619 (9th Cir.1991), cert. denied, 502 U.S. 950, 112 S.Ct. 401, 116 L.Ed.2d 350 (1991). We review for clear error the trial court's factual findings supporting the determination of probable cause. United States v. Linn, 880 F.2d 209, 214 (9th Cir.1989).
In California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 2070, 85 L.Ed.2d 406 (1985), the Supreme Court held that the police may search a vehicle without a search warrant where the police have probable cause to believe that the vehicle contains contraband or evidence of a crime. In United States v. George, 883 F.2d 1407 (9th Cir.1989), this court defined probable cause as " 'requiring a reasonable belief, evaluated in light of the officer's experience and the practical considerations of everyday life,' " that contraband or evidence would be found in the place to be searched. Id. at 1412 (quoting United States v. Robertson, 606 F.2d 853, 858 (9th Cir.1979)).
Louise Perez argues that the evidence seized from a search of her vehicle should have been suppressed because the officers had neither a warrant nor probable cause to search her vehicle. The trial court concluded that the officers had probable cause to search Louise Perez's vehicle because the officers could have reasonably believed that the rest of the unrecovered coins or receipts from sales of the unrecovered coins might have been in her vehicle. The court reasoned that:
Given the uniqueness of the coins in issue, the need for the seller to transport such coins to a buyer, and the fact that on Guam, motor vehicles are frequently the only readily available mode of transportation, the Court finds that the arresting officers reasonably believed that other [stolen] coins ... would be found in the vehicle operated by Ms. Perez.
Louise Perez maintains that the link between the criminal activity for which she was arrested and the search of her vehicle was too attenuated to establish probable cause.
In United States v. Vasquez, 858 F.2d 1387, 1391 (9th Cir.1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 978 (1989), we held that a search was justified under the vehicle exception to the warrant requirement because the police had probable cause to believe that the defendant's car contained contraband. In that case, the defendant exited his vehicle with a gym bag containing five packages of cocaine which he sold to an undercover police officer. The officer arrested the defendant and proceeded to search his vehicle without a warrant. We explained that the officer " " Id. (quoting Carney, 471 U.S. at 395, 105 S.Ct. at 2071).
In the instant case, Louise Perez drove her vehicle to the mall, where the coin shop was located, to obtain $500 in cash for the allegedly stolen coins that she had sold to Mike Cummings four days earlier. 2 As Louise Perez was returning to her vehicle, the officers arrested her, placed her in the back of the squad car, and proceeded to search her vehicle. The government argues that, like the police in Vasquez, the officers in the instant case had probable cause to conduct the vehicle search because they had uncontradicted evidence that she had used her vehicle to transport her to the mall where she allegedly received cash for stolen property. We disagree.
Finding probable cause in this instance would create an unwarranted extension of the law by allowing a search of a vehicle four days after alleged criminal activity occurred with only a speculative connection between the vehicle and the alleged criminal activity. The only connection between the alleged criminal activity and Louise Perez's vehicle was that she might have driven it four days earlier to the mall where the coin shop was located, because "on Guam, vehicles are frequently the only readily available mode of transportation." This logic is insufficient to provide an officer with a reasonable belief that contraband or evidence would be found in the place to be searched.
Furthermore, unlike the defendant in Vasquez, whom the police observed exiting his vehicle carrying cocaine, Louise Perez exited her vehicle without contraband. The allegedly stolen coins had been sold four days prior to the warrantless search of Louise Perez's vehicle. The coin dealer reported the coin sale to the police without having observed her mode of transportation. A friend may have driven her to the coin shop. Thus, the police had stale and second hand information, whereas in Vasquez, the police had "fresh, direct, and uncontradicted evidence" that the defendant was selling cocaine from his vehicle. Vasquez, 858 F.2d at 1391. It was unreasonable for the officers to believe that evidence of a four day old crime would be found in a vehicle which never had been connected with the alleged criminal activity.
We hold that the trial court erred in denying Louise Perez's motion to suppress the evidence found in her vehicle. Thus, her conviction for being a felon in possession of a firearm is reversed. Furthermore, the four level enhancement of her sentence for possessing a firearm in connection with another felony is vacated because the firearm and the cocaine should have been suppressed as the fruits of an illegal search.
Because Louise Perez did not object to the sufficiency of the indictment at trial, we review this issue for plain error. See Fed.R.Crim.P. 52(b); United States v. Dischner, 974 F.2d 1502, 1514 (9th Cir.1992), cert. denied, --- U.S. ----, 113...
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