U.S. v. Salas, s. 88-3221
| Decision Date | 19 June 1989 |
| Docket Number | 88-3228,Nos. 88-3221,s. 88-3221 |
| Citation | 879 F.2d 530 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joel Torres SALAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Vincente Flores MUNOZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael P. Ruark, Breskin & Robbins, Seattle, Wash., for defendant-appellant, Joel Torres Salas.
William T. Hines, Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant, Vincente Flores Munoz.
Jerry Diskin, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the District of Western Washington (Seattle).
Before ALARCON, FERGUSON and THOMPSON, Circuit Judges.
Vincente Munoz (Munoz) and Joel Torres Salas (Salas) appeal from the order denying their motions to suppress evidence introduced at trial on the issue of guilt. Each was found guilty of possessing more than five hundred grams of cocaine with intent to distribute. The evidence was seized pursuant to two search warrants. Munoz and Salas contend that the first search warrant was invalid because it was issued on the basis of facts obtained as the result of unreasonable searches and seizures. Munoz challenges the validity of the second warrant on the ground that it was issued in reliance upon evidence seized during the execution of the first warrant. We conclude that each search warrant was valid and affirm.
The validity of the first search warrant depends primarily upon whether the officers were justified in conducting a pat-down search in connection with a Terry stop. A detailed recitation of the facts known to the officers prior to the pat-down is necessary to resolve this question.
The evidence presented by the government at the hearing on the motion to suppress disclosed the following facts:
A. Citizen Informants' Reports
Detective Christopher A. Hurst of the Tukwila Police Department testified that he had been a police officer for eight years. During that time he had investigated narcotics cases since 1982. At the time the searches in this matter occurred, he was assigned to the South King County Narcotics Task Force.
On February 22, 1988, the Renton Police Department advised the South King County Narcotics Task Force that a maid at Nendel's Motel at 3700 East Valley Road had reported that she had seen cocaine and marijuana and "packaging materials" on several occasions while cleaning Room 227.
On the same date, Detective Hurst and Detective Kevin Lee Milosovich of the Renton Police Department went to Nendel's Motel to investigate this report. The motel After interviewing the motel manager, the officers kept Room 227 under surveillance for a period of time. They did not observe any activity involving Room 227 or the Corvette.
manager informed the officers that two Spanish or Mexican men were staying in Room 227. She also reported that a black 1974 Corvette, license number 102 AHN, was associated with the men in Room 227. Detective Hurst checked the license number of the car with the Department of Licensing. The Corvette was registered to Vincente Munoz.
The following morning, Detective Hurst interviewed a maid who worked at the motel. She reported that she had cleaned Room 227 on February 20, 1988. On that date, she observed a balance scale that was about one foot in length, a sandwich-size package of baggies, and a box of baking soda.
Detective Hurst testified that sandwich-size baggies are used for the packaging of cocaine. Baking soda is used in the production of rock or crack cocaine.
The maid also saw a large amount of white powder she identified as cocaine. She had previously seen cocaine on numerous occasions at parties. She also observed burnt material that she identified as marijuana. She recognized the substance as being marijuana because of its appearance and smell based on her experience as a user of this contraband.
She also saw a large quantity of new clothing still affixed with store tags. Detective Hurst testified that new clothing is bartered for narcotics.
Detective Hurst next interviewed a second maid. She stated she had seen narcotics in Room 227 on three separate days, most recently on February 19, 1988. She saw approximately two hundred and fifty dollars' worth of five-and-ten dollar bills. She also informed Detective Hurst that she saw white powder on top of the television set. It was scooped together in short lines. She described this substance as similar to cocaine she had seen other people use. Approximately two weeks before the interview, she had seen marijuana in Room 227. She stated she had used marijuana and recognized it when she saw it and smelled it.
The second maid also saw ziplock plastic bags and a suitcase in Room 227 covered with a comforter. She thought that it was unusual to hide luggage in this manner.
Detective Hurst presented these facts to a county prosecutor in order to obtain a search warrant. The prosecutor advised him that he should continue his surveillance for additional information because the maids had removed the narcotics when they cleaned the room and their information was stale.
B. Independent Observations
Detective Hurst and Milosovich returned to Nendel's Motel at 8:30 p.m. on February 23, 1988. They observed the 1974 Corvette in the parking lot. They obtained a key to Room 225. On their way to that room they saw Munoz and Salas enter the Corvette and drive off. The officers followed in their vehicle.
The Corvette traveled north on State Route 169 until they reached the Interstate 405 exit. As the officers followed Munoz and Salas into the exit, the Corvette pulled over to the side halfway up the cloverleaf. The officers continued on past the Corvette to avoid revealing to Munoz and Salas that they were being followed. The officers drove through the entire cloverleaf to position themselves behind the Corvette. They caught up with the Corvette near an exit in Seattle.
Detective Hurst testified that stopping the Corvette on the cloverleaf was a good evasive driving tactic to determine whether someone is following you. If a person is being followed by the police, the officers must continue on or be discovered. If the officers continue on, they must travel the entire cloverleaf to catch up.
The Corvette was driven to an address near 19th and Ferdinand. The Corvette The officers followed the Corvette from the residence. At a traffic signal, one of the individuals in the car waved at the officers. The surveillance was discontinued because Detective Hurst was convinced that their surveillance had been compromised.
stopped in front of a residence. Munoz and Salas left the car. The officers drove to a side street and turned around. This maneuver took one minute. The officers then saw Munoz and Salas leaving the residence.
Detective Hurst concluded that the fact that Munoz and Salas had stopped at a residence for one minute was consistent with a delivery of narcotics.
The detectives returned to their office and conferred with Sergeant Robert Sheldon Almy of the Auburn Police Department about the evasive driving and the possible delivery of narcotics. The officers decided to return to Nendel's Motel and question Munoz and Salas when they returned.
When the officers arrived at Nendel's Motel, they discovered that Munoz and Salas had already arrived. Detective Hurst went to Room 225. Detective Milosovich and Sergeant Almy waited in the parking lot. The officers agreed that Detective Hurst would radio Detective Milosovich and Sergeant Hurst when Munoz and Salas left the room. They determined that it would be safer to contact the suspects in the open rather than interviewing them in their room. Detective Hurst heard two persons speaking in Spanish in Room 227. After a short time, at approximately 10:30 p.m., he heard the door open and the sound of footsteps going down the hallway. Detective Hurst used the radio to inform his fellow officers that the suspects were on their way.
Detective Hurst waited 20 to 30 seconds so as not to run into the suspects, and then proceeded to the parking lot.
In fact, Munoz did not leave Room 227. Salas went to the parking lot and entered the Corvette, sat behind the wheel, and appeared to insert a key into the ignition switch.
Detective Milosovich and Sergeant Almy approached the vehicle with their weapons drawn. After identifying themselves as police officers, Salas was ordered to step out of the Corvette. Salas was asked to identify himself. He did not respond. Sergeant Almy asked Salas if he was armed. Salas replied that he was not. Sergeant Almy advised Salas that he was going to check to see if he was armed. The suspect turned to a 45-degree angle, put his hands up and locked his fingers behind his head. Sergeant Almy then patted him down. Salas was wearing a two-piece warm-up suit consisting of sweat pants and a jacket with pockets. During the pat down, Sergeant Almay felt a bulge and a lump near the right jacket pocket. Sergeant Almy believed that the bulge might be the butt of a hand gun in Salas' waistband. Instead, Sergeant Almy found a baggie containing 14 grams of rock cocaine.
When Detective Hurst noted Munoz was not in the parking lot, Salas was moved away from the Corvette to a place where he could not be seen from Room 227. Detective Hurst asked Salas if anyone else was in Room 227. Salas stated that no one else was in the room.
The officers conferred about their next move. They concluded that if Salas did not return shortly, Munoz would destroy any evidence in the room. They were aware that obtaining a search warrant would take three hours. The officers decided to go to Room 227 and remove Munoz so that the room would be secure while a search warrant was obtained.
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