U.S. v. Ramos, 89-50242

• Citation: 923 F.2d 1346
• Decision Date: 17 January 1991
• Docket Number: No. 89-50242,89-50242
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hector Martin RAMOS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1346

923 F.2d 1346

UNITED STATES of America, Plaintiff-Appellee, v. Hector Martin RAMOS, Defendant-Appellant.

No. 89-50242.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 30, 1990.

Decided Jan. 17, 1991.

Abby Besser Klein and Stanley I. Greenberg, Los Angeles, Cal., for defendant-appellant.

John L. Carlton, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before NELSON, BRUNETTI and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

Hector Ramos challenges the constitutionality of his conviction for two narcotics offenses and his sentences on those counts. Because we find that Ramos' constitutional rights were not violated by the search of his apartment or by imposition of his sentences, we affirm the district court.

I

In the early morning hours of September 7, 1988, officers from the Torrance Police Department obtained a warrant for the search of 21925 Claretta Avenue, apartment No. 6, Hawaiian Gardens, where the Ramos family resided. Searches of Ramos' and others' residences and vehicles and the arrests of seven suspects, including Hector and Denise Ramos (Hector's wife), culminated an investigation into an alleged narcotics ring operating in the Los Angeles area. Hector Ramos now appeals his convictions and sentences on charges stemming from that investigation.

The events which led to Ramos' current incarceration require a careful recounting. ¹ Following a tip, police officers began to watch the activities of occupants of and visitors to a house at 23303 Anza in Torrance, California. After several days of observation, in the evening of September 6 the police followed Manuel Suastegui as he left the Anza house. While following Suastegui, officers observed Anthony Del Vizo driving a van "in tandem" with Suastegui. Del Vizo drove to 13357 Ashworth, Cerritos, where he met Manuel Ibarra, left the van, and walked to a nearby gas station where Suastegui was waiting to drive him away.

After another man met with Ibarra and left with a package, Ibarra loaded Del Vizo's van with a box measuring three feet by two feet. Shortly thereafter, Hector Ramos appeared on the scene. ² After a brief discussion with Ibarra, Ramos drove off in the van with the box.

Officers followed Ramos as he drove to 12234 Brittain, Hawaiian Gardens. Ramos drove in a counter-surveillance fashion; he circled the area, made U-turns, and frequently drove faster than the speed limit, yet occasionally pulled over to let traffic pass. At the Brittain house Ramos delivered the box from the van and then, twenty minutes later, drove off in the van with a passenger.

Ramos' next destination proved to be the apartment complex at 21925 Claretta, Hawaiian Gardens, where he arrived only after additional counter-surveillance driving. After twenty minutes passed, during which Ramos was out of the officers' view, he again drove off in the van, this time back to Ibarra and the Ashworth residence. Officers noted that the van seemed to ride lower in the rear, as if it were loaded with cargo, and that Ramos no longer drove in a counter-surveillance manner but instead proceeded cautiously, obeying all traffic laws. Back at the Ashworth house, Ramos left the van, met with Ibarra, and then departed in his own vehicle.

Officers later arrested Del Vizo, who had retaken possession of his van, and Suastegui, who was driving in tandem with Del Vizo in a separate vehicle. The arresting officers discovered that the cargo weighing down the van was 104 kilograms of cocaine.

Running a check on the various vehicles observed during the course of their surveillance, the investigating officers discovered that one of the vehicles involved in the transaction was Hector Ramos'; they also learned that Ramos lived in apartment No. 6 at 21925 Claretta. The police obtained a search warrant for Ramos' apartment, including a storage area in the garage or carport. Upon executing the warrant hours before sunrise on September 7, police discovered approximately fifty-nine kilograms of cocaine in the residence and storage areas and $186,000 in cash in the box which officers had observed being placed in the van.

Ramos and six co-defendants subsequently were indicted on seven counts of various narcotics offenses. Ramos pled not guilty to all counts at his arraignment.

Ramos later moved to suppress the evidence collected during the search of his apartment, asserting that the search warrant was not supported by probable cause and that the so-called "good faith" exception did not validate the search. Ramos also contended that the officers who executed the search did not comply with the knock-notice requirements of 18 U.S.C. Sec. 3109. The suppression motion was denied following an evidentiary hearing.

Pursuant to a plea bargain arrangement, Ramos filed conditional guilty pleas ³ on two counts on January 4, 1989. He moved to withdraw the pleas on March 15; that motion was denied. Pursuant to the federal sentencing guidelines, Ramos was sentenced to 211 months' incarceration on one count ⁴ and sixty months' on the other, ⁵ the sentences to be served concurrently, and fined $5,000. ⁶ A judgment of conviction was entered on April 4, 1989, and the other five counts were dismissed upon the government's motion.

Ramos timely appeals the denial of the suppression motion, the denial of the motion to withdraw the guilty plea, and the district court's application of the federal sentencing guidelines. We have jurisdiction under 28 U.S.C. Sec. 1291.

II

As he did before the district court, Ramos here asserts that the search of his apartment and storage area violated his rights under the fourth amendment. ⁷ Ramos offers two justifications for exclusion of the evidence obtained during the purportedly unconstitutional search. First, Ramos argues that the warrant granting the police authorization to search his apartment and storage area was unsupported by probable cause, and that the officers' reliance on the warrant did not fall within one of the exceptions to the exclusionary rule. Second, Ramos contends that the police failed to comply with the federal knock-notice statute when executing the warrant, which in itself, Ramos urges, justified exclusion of the evidence uncovered during the search.

We review the district court's decision to deny the motion to suppress de novo. United States v. Thomas, 844 F.2d 678, 680 (9th Cir.1988).

A

The district court concluded alternatively that (1) the search warrant was based on probable cause, or (2) if there were insufficient facts to establish probable cause, the officers executing the warrant were acting in the good faith belief that they had a valid warrant. ⁸ We examine these conclusions in turn.

Ramos claims that the search warrant for his apartment and storage area was not based upon probable cause because it failed to show a nexus between the criminal activity and the places to be searched. On review we determine whether the issuing magistrate had a substantial basis for concluding that the affidavit in support of the warrant established probable cause. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983); United States v. Rodriguez, 869 F.2d 479, 484 (9th Cir.1989) (quoting Gates ). Applying these standards, ⁹ we agree with Ramos that the warrant was not supported by probable cause.

Probable cause to justify a search warrant exists when there is a sufficient showing that incriminating items are located on the property to which entry is sought. See United States v. Rabe, 848 F.2d 994, 997 (9th Cir.1988); United States v. Flores, 679 F.2d 173, 175 (9th Cir.1982), cert. denied, 459 U.S. 1148, 103 S.Ct. 791, 74 L.Ed.2d 996 (1983); P. Polyviou, Search & Seizure 97 (1982). Probable cause to believe that a suspect has committed a crime is not by itself adequate to secure a search warrant for the suspect's home. Id. There must exist reasonable cause to believe that the things listed as the objects of the search are located in the place to be searched. Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1976, 56 L.Ed.2d 525 (1978).

The search warrant affidavit for Ramos' apartment, storage area, and truck describes in detail the activities of a number of suspects and other individuals. Ramos is not named in the affidavit, as the investigating officers had not identified him at the time. However, Ramos is described in the affidavit as an "unidentified male Latin[ ] wearing a green shirt and tan hat." The assertions in the affidavit concerning Ramos and his residence are simply that: (1) he drove up to the Ashworth residence in a pick-up truck, spoke with another, and drove off in the van in a counter-surveillance manner; (2) he arrived at the Brittain residence and unloaded a box which had been placed in the van by another; ¹⁰ (3) he and another man drove the van to the Claretta apartments; ¹¹ (4) after twenty minutes, he drove the van back to the Ashworth house, where he left the van and drove off in the pick-up; and, (5) the pick-up was registered to him, it was parked at the Claretta address, and there was a mailbox there with the name "Ramos" on it. ¹²

The affidavit contains no facts making it likely that anything the officers sought was present in the Claretta apartment. There are no allegations of anything being transported between the van and the apartment, or indeed that anybody from the van even entered the apartment. The only allegation involving Ramos and the transfer of property is that the man clad in the green shirt and tan hat was observed taking a box from the van into the Brittain house. There is no mention of cargo being loaded into, or observed within, the van at any point during Ramos' stewardship of the vehicle, or that the van was driven any differently after it left the Claretta or Brittain residences than it had been driven before, or even that...