Unpublished Disposition, 849 F.2d 1477 (9th Cir. 1988)

MEMORANDUM^* 

We have jurisdiction over these consolidated appeals under 28 U.S.C. § 1291. Appellants argue that the affidavit which supported the search of two different locations, 1733 Oakgreen and 1430 Destoya, did not demonstrate probable cause. The district court denied appellants' motions to suppress the evidence obtained from these locations. It found that probable cause existed and that, even if it did not exist, the officers relied on the warrant in good faith. We agree with the district court that probable cause existed as to the search of both residences. Therefore, we affirm the district court's denial of the defendants' motions to suppress.

As to the Oakgreen residence, the affidavit supporting the search warrant related observations that were gathered during nine days of surveillance, conducted over a thirteen-day period. The periods of surveillance were substantial, numerous cars were seen coming and going, these cars sometimes were driven erratically and the drivers often would bring shopping bags of unknown contents to the house upon arrival or from the house upon departure. On one occasion, Officer Tedesco (the affiant) observed a car leave Oakgreen, drive to a nearby telephone booth--where the driver made and received phone calls--then return to Oakgreen. On a later occasion, one of the drivers (Elezar Beltran) was legally stopped; he then consented to a search of the car and the search produced a substantial quantity of cocaine. Finally, Officer Tedesco was an experienced narcotics investigator and his judgment that a search would reveal contraband was further support for the magistrate to find probable cause.

With regard to the Destoya search, we adopt the reasoning expressed by the district court on the issue of probable cause, which appears in its minute order of August 6, 1986, under the heading "28b.":

The Court denies the Guzman motion to suppress based upon the contention that the affidavit for the search warrant was insufficient to show probable cause to allow a warrant to issue for the search of the Destoya house. The Court has carefully read the affidavit for the search warrant and the contentions of the parties. The Court does not agree that the affidavit is insufficient. The test to be applied is stated in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527 (1983). The magistrate's job is "to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." [Id. at 238.] This Court has the job of determining whether there was a substantial basis for the magistrate's conclusion.

Looking at the circumstances set forth by Officer Tedesco, taken as a whole, the Court believes that the "fair probability" was established and that there was a substantial basis for the magistrate's conclusion. The defendants' principal argument takes the approach of isolating the evidence pertaining to the Destoya residence and ignoring what was found with regard to the Oakgreen residence. At the time the search warrant was obtained, all of the suspicious activity previously observed at Oakgreen, suggestive of a narcotics enterprise, was confirmed by the seizure of the three kilos of cocaine in Beltran's automobile which had just come from the Oakgreen residence. The traffic back and forth between Oakgreen and Destoya and the manner of driving provide the "fair probability" of a finding of cocaine at Destoya Street. In addition, the circumstance that it is common that narcotics traffickers use various residences for different purposes (i.e., as warehouse, as local distribution center, etc.) fits precisely the observations made by the officers in this case. Accordingly, the Court rejects the argument that the affidavit for the search warrant was insufficient on its face to provide probable cause for the issuance of the warrant as to the Destoya street address.

In assessing the presence of probable cause for the search of Oakgreen and Destoya, the magistrate and the district court properly considered evidence obtained from the car driven by Elezar Beltran. After conducting an evidentiary hearing, the district court denied Beltran's motion to suppress evidence obtained in the car search. It stated:

[T]he Court determines that the police had an adequate basis to stop the car driven by defendant [Elezar] Leal Beltran by reason of observed traffic violations and for investigation concerning then ongoing narcotics investigation. The information available to the narcotics officer causing the stop to be made on combined traffic violations and narcotics investigation showed sufficient grounds of suspicion of narcotics activity in that, at the time the stop was made, that the defendant, Leal Beltran, was a courier of narcotics. The moving defendant voluntarily gave the officers a full consent to search the automobile. It is thus not necessary to determine whether sufficient cause existed to make the search in the absence of consent. The consent form was explained to the moving defendant in Spanish and was understood by him. The consent granted voluntarily was for a search of the entire vehicle. The scope of the search did not exceed the scope of the consent.

Minute order of August 6, 1986, regarding motion 30.

We agree.

Appellant Guzman also alleges that the evidence obtained at the Destoya location was seized in violation of California law. We recently reaffirmed that "evidence seized in compliance with federal law is admissible without regard to state law." United States v. Chavez-Vernaza, Nos. 86-3178, 86-3187, slip op. at 5303 (9th Cir. May 5, 1988). Guzman does not claim that the seizure of property from Destoya occurred in violation of federal law; the evidence was therefore admissible.

AFFIRMED.