Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

MEMORANDUM^* 

We affirm the conviction of Tod Michael Revenaugh on a charge of possession of cocaine with intent to distribute.

An anonymous call to Seattle police in June 1987 identified Revenaugh as a major cocaine dealer. A detective used the services of informant O'Brien in an investigation of another suspected cocaine dealer. Prior experience on two occasions had identified O'Brien as a trustworthy informant. When setting up a controlled buy of narcotics, he communicated with Revenaugh and the two agreed to meet at a drive-in restaurant in Seattle.

Local police were so advised and were given an accurate description of the motor vehicle to be driven by Revenaugh to the place of rendezvous. O'Brien was provided with a paging device or beeper to be activated if he saw Revenaugh with cocaine.

Police surveillance units observed Revenaugh in the described vehicle in the parking lot agreed upon. O'Brien entered Revenaugh's car empty-handed. Shortly he activated the paging device and the police arrested both men.

When asked about cocaine, O'Brien nodded toward the back of the car and said the "dope" was "in the back." A detective found a duffel bag behind the front seat and extracted packages of cocaine.

Having been duly advised of his rights, Revenaugh admitted ownership of the cocaine and gave written consent for the search of a storage locker and provided a key. Therein were found marijuana and plastic and paper bags containing cocaine residue.

Competent counsel have been appointed to represent appellant on this appeal and they have served him well.¹  They have raised a number of issues, only two of which require extended discussion. They have argued vigorously that the police lacked probable cause to arrest Revenaugh and that the court should have suppressed evidence seized at that time.

"Probable cause for a warrantless arrest exists if 'under the totality of the facts and circumstances known to the arresting officer, a prudent person would have concluded that there was a fair probability that the suspect had committed a crime.' " United States v. Fixen, 780 F.2d 1434, 1436 (9th Cir. 1986) (quoting United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984)). See also United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1296 (9th Cir. 1988); United States v. Woods, 720 F.2d 1022, 1028 (9th Cir. 1983). Under Illinois v. Gates, 462 U.S. 213 (1983), the court assesses an informant's veracity, reliability and basis of knowledge under the totality of the circumstances to determine the value of the informant's report in establishing probable cause. Fixen, 780 F.2d at 1436. " [I]ndependent police corroboration of some of the details provided ... increase confidence in either the reliability or basis of knowledge of the tipster." United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir. 1986).

The facts already stated demonstrate that the officers did have probable cause to make the arrest and that the informant was reliable. O'Brien's reliability was also strengthened through independent police corroboration, United States v. Klein, 860 F.2d 1489, 1493 (9th Cir. 1988), and his basis of knowledge was strong. See Fixen, 780 F.2d at 1438.

"In United States v. Ross, 456 U.S. 798 [, 806-07] (1982), the Court held that if officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of any containers found inside that may conceal the object of the search." United States v. Johns, 469 U.S. 478, 479-80 (1985); United States v. Stewart, 770 F.2d 825, 829 (9th Cir. 1985), cert. denied, 474 U.S. 1103 (1986).

Appellant's reliance on United States v. Salazar, 805 F.2d 1394 (9th Cir. 1986), is misplaced. Therein the court found the automobile exception inapplicable because the police had probable cause to search a shopping bag but not a car in which it was found. The court there held that "prior police knowledge of the specific, closed container required a separate search warrant following the vehicle stop." Klein, 860 F.2d at 1494.

Here, the police had probable cause to search the car. O'Brien, the informant, may have known that the duffel bag contained cocaine but he did not tell that to the police.

The district judge did not err by refusing an instruction on a lesser included offense of simple possession of cocaine. Because of the large amount of cocaine in Revenaugh's vehicle, the jury could not convict him of simple possession. See United States v. Espinosa, 827 F.2d 604, 615 (9th Cir. 1987), cert. denied, 108 S. Ct. 1243 (1988).

Nor was there error in the admission in evidence of two bags of cocaine residue. The district judge admitted them to show scheme, plan, knowledge or design. See United States v. Valencia, 492 F.2d 1071, 1074 (9th Cir. 1974). The trial judge's discretion was properly exercised. There was no abuse of that discretion.

We need not reach the doctrine of inevitable discovery asserted by government counsel.

AFFIRMED.