U.S. v. Vargas, s. 79-1603

• Decision Date: 24 September 1980
• Docket Number: 79-1604,Nos. 79-1603,s. 79-1603
• Citation: 633 F.2d 891
• Parties: UNITED STATES of America, Appellee, v. Raymond VARGAS, Defendant-Appellant. UNITED STATES of America, Appellee, v. Orlando RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 891

633 F.2d 891

UNITED STATES of America, Appellee, v. Raymond VARGAS, Defendant-Appellant.

UNITED STATES of America, Appellee, v. Orlando RODRIGUEZ, Defendant-Appellant.

Nos. 79-1603, 79-1604.

United States Court of Appeals, First Circuit.

Argued June 4, 1980.

Decided Sept. 24, 1980.

Hector A. deJesus, Everett, Mass., by appointment of the Court, for defendant-appellant, Raymond Vargas.

Roxana I. Marchosky, Boston, Mass., by appointment of the Court, for defendant-appellant, Orlando Rodriguez.

Judd J. Carhart, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., and Janis M. Berry, Asst. U. S. Atty., Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Following a three-day trial in the District Court for the District of Massachusetts, appellants Orlando Rodriguez and Raymond Vargas were convicted under 21 U.S.C. §§ 841(a)(1) and 846 of conspiracy to possess quantities of cocaine and heroin with intent to distribute. On appeal, they each allege that the trial judge erred in (1) refusing to suppress certain evidence seized in the course of their warrantless arrest and (2) denying their respective motions for judgment of acquittal. Rodriguez also challenges the court's refusal to suppress various items recovered from a motel room upon execution of a search warrant.

I.

The case revolves around the activities of four individuals: Jorge Crespo, Armando Diaz, and the two appellants. ¹ The Drug Enforcement Administration (DEA) already had information concerning three of these individuals prior to the events in question. Two informants had reported to the DEA that Crespo and Diaz were major narcotics traffickers from New York, and that Crespo travelled to Boston almost weekly carrying large amounts of cocaine and heroin. Previous DEA investigation had revealed that Crespo often stayed in Boston at the 1200 Beacon Street Motel-a location known to the DEA, from its own experience and from Brookline Police reports, as an occasional drug distribution point. In addition, the DEA had learned from an assistant district attorney in New York that Crespo had three cases pending there involving the sale of cocaine, that Diaz served as Crespo's bodyguard during drug transactions, and that Diaz himself had been arrested in New York for narcotics violations. ² Rodriguez was also well known to the DEA. Four corroborated sources had reported that Rodriguez was a major cocaine and heroin trafficker in the Boston area and that Crespo and Diaz were his suppliers. DEA agents had stopped Rodriguez and searched his car on a previous occasion, but had uncovered no evidence of unlawful conduct.

On August 2, 1979, Special Agent Boeri received a call from a reliable informant who reported that Crespo and Diaz were in Boston to meet with several major narcotic traffickers from the local area. Despite the informant's failure to disclose the location of the meeting or the identity of the other participants, Special Agent Keaney suspected, in light of the DEA's prior information, that the meeting would occur at the 1200 Beacon Street Motel and that Rodriguez would attend. After learning from a telephone call to the motel that Crespo had checked into room 126 at 11:00 the previous evening, Keaney initiated surveillance of the room at approximately 12:30 that afternoon.

Agent Simpkins, disguised as a motel employee, went to room 126 for the ostensible purpose of collecting the day's rent. Appellant Vargas answered the door, gave Simpkins the rent and a tip, and received a receipt. The lights in the room were off and the shades were drawn. While standing in the doorway, Simpkins saw nobody else in the room and no signs of criminal activity. Thereafter, the agents observed someone, whom they could not identify, intermittently draw back the window shades partway and peer out.

At approximately 2:00 P.M., Rodriguez and Diaz arrived at the motel in Rodriguez's car. They proceeded directly to room 126, which adjoins a balcony facing the street, without passing through the motel lobby. Rodriguez knocked on the door, but then immediately went to a phone booth where he appeared to place a short call. With Diaz waiting at the door to room 126, Rodriguez returned to his car and extracted from the trunk a white bag containing a long, box-shaped object. Carrying the bag with two hands, Rodriguez then rejoined Diaz and entered the room. Several minutes later, Vargas stepped outside, scanned the street momentarily, and walked out of the agents' view. He returned shortly and reentered room 126 carrying an orange cylindrical object which the agents could not then identify.

Approximately twenty-five minutes after Rodriguez and Diaz had arrived, Rodriguez and Vargas exited room 126 and walked to Rodriguez's car. Rodriguez crumpled up the white bag, now apparently empty, and discarded it. As he approached the car, he also appeared to tuck something under his shirt. Rodriguez and Vargas drove away, and three agents in two cars followed. During the course of this "moving surveillance," Vargas several times turned around and peered out the rear window. At one point, Vargas looked backwards directly at the pursuing agents. Almost simultaneously, the vehicle veered sharply to the right around another car and then back into the left lane, increasing its speed slightly. Rodriguez's vehicle was then travelling 30-45 miles per hour and was not in violation of any traffic laws. Nonetheless, the agents decided to stop it, believing that Vargas had recognized them, that Rodriguez was attempting to elude them, and that-based on their earlier observations-the two were probably in possession of narcotics. In the course of ordering the appellants out of the vehicle and placing them under arrest, the agents observed on a shelf beneath the glove compartment three packages of mannite-a commercially available laxative commonly used as a cutting agent for heroin and cocaine-and several small amber bottles of a type frequently used to carry those drugs. After being read the Miranda rights, Rodriguez volunteered that he owned the car but denied ownership of the mannite and amber bottles. A pat-down search of both appellants revealed no drugs or weapons; Vargas, however, had a key to room 126 in his pocket. Rodriguez consented to a search of the vehicle's trunk, which was found to contain a shoulder holster, a bullet-proof vest, and a "dent puller." ³ Upon discovering these items, the agents subjected the appellants to a partial strip search which uncovered nothing further.

Meanwhile, surveillance at the motel had continued. Approximately ten minutes after Rodriguez and Vargas had departed, Crespo and Diaz stepped out onto the balcony and scanned the street. Crespo walked to the parking lot behind the motel and returned with a small white box which he handed to Diaz. After again looking about intently, they reentered the room separately. The agents then gained access to room 125, adjacent to the one under surveillance, and with their front door slightly ajar overheard whistling, men talking in a foreign language, and a metallic clanking sound. Agent Vinton attributed the latter to a triple beam balance scale, based on his experience, as a narcotics agent, with some two dozen such devices.

At approximately 4:30 P.M., Crespo and Diaz walked out onto the balcony and were immediately arrested. In the course of securing the room pending issuance of a search warrant, Agent Vinton spotted a triple beam balance scale in its box on the floor. Crespo was found to have the rent payment receipt that had earlier been given by Agent Simpkins to Vargas. The subsequent search of the room, conducted at approximately 9:30 that evening, uncovered the following items: 693 grams of cocaine, 43 grams of heroin, $8,900 in cash, a triple beam balance scale resting in an open box, an orange hydraulic pump, a large bag of lactose, and a small, empty white box with the word "lactose" written on its label. Lactose is a common cutting agent for heroin and cocaine. A hydraulic pump of the type seized is frequently employed to compress cocaine to make it appear of higher quality. The pump was missing a small component, and there was conflicting testimony at trial as to whether it was operable in that condition; in any event, none of the cocaine recovered had been compressed. Most of the cocaine was fifty percent pure and a small portion of it was seventy-five percent pure. Since cocaine sold on the streets is typically only fifteen percent pure, and given the large amount of lactose seized, the agents inferred at trial that they had interrupted Crespo and Diaz before the cutting process had been completed.

Finally, the white paper bag which Rodriguez had discarded was recovered and found to contain pieces of cardboard. Agent Keaney reconstructed the cardboard pieces and found that they formed the packaging material for the type of triple beam balance scale seized in the motel room.

II.

Based on the evidence presented at the suppression hearing, the district court concluded that the DEA agents initially detained the appellants solely for the purpose of conducting an investigatory stop, and that the decision to arrest them was made only after the mannite and amber bottles were spotted in the car. Accordingly, in deciding whether those objects and the motel key found on Vargas should be suppressed, the court engaged in a two-step inquiry: it first analyzed the propriety of the stop under the "reasonable suspicion" test annunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and then determined whether the agents' prior information and observations, in conjunction with seeing the mannite and amber bottles, provided probable cause for the arrests. The appellants contend (1) that the court's finding of an investigatory stop "flies in the face of the facts on record" and,...