Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1989)

MEMORANDUM^* 

We must determine the constitutionality of the warrantless arrest of Manuel Suastegui and of a variety of subsequent searches. We also consider a challenge to the district court's application of the sentencing guidelines to Suastegui. We affirm.

* Suastegui was arrested while driving his Ford Bronco in tandem with a Plymouth Voyager van driven by Anthony Ruiz Del Vizo, who was also arrested. A search of the van revealed 104 kilograms of cocaine. Suastegui's Bronco was searched at the Torrance Police station, and a ledger was confiscated. Another ledger was found in a motel room to which Suastegui possessed a key.

Suastegui and six other defendants were indicted on seven counts of various narcotics offenses. Suastegui filed a motion to suppress the evidence seized during searches at the arrest scene and later. After an evidentiary hearing, the district court denied the suppression motion.

On January 3, 1989, Suastegui withdrew his plea of not guilty to two counts of the indictment¹  and entered conditional guilty pleas on those counts. Suastegui was sentenced to 130 months' imprisonment on the possession count and sixty months' imprisonment on the money-laundering count, to be served concurrently. He was also sentenced to concurrent terms of five and three years of supervised release following his incarceration. The remaining counts were dismissed at the government's motion, and a judgment of conviction was entered on June 17, 1989.

Suastegui timely appeals the denial of the suppression motion and his sentence. We have jurisdiction under 28 U.S.C. § 1291.

II

Suastegui first contends that the police violated his fourth amendment right to be free from arrest without probable cause. He argues that the police had already placed him under arrest prior to the discovery of cocaine in the back of Del Vizo's van, and there was no probable cause to arrest him at that time.

The district court concluded alternatively (1) that Del Vizo's and Suastegui's initial detention amounted to a mere investigatory stop which ripened into an arrest only after the discovery of the cocaine, or (2) that there was probable cause to arrest Del Vizo and Suastegui at the time their vehicles were stopped.

In United States v. Del Vizo, 918 F.2d 821 (9th Cir. 1990), we concluded that the initial detention of Suastegui's co-defendant, under the same circumstances, was supported by probable cause. See id. at 825-27. We stressed that such factors as the tip, tandem and counter-surveillance driving, use of cellular and pay telephones, vehicle switches, packages and cargo, "hiding," and the general pattern of activity indicated participation in a narcotics transaction. See id. at 826-27.

The only real difference between Del Vizo's situation and Suastegui's was that Del Vizo was driving the van which the police suspected carried narcotics, while Suastegui drove another vehicle in tandem with Del Vizo. The difference, rather than insulating Suastegui, confirms probable cause to arrest him. Tandem driving implicated Suastegui no less than Del Vizo. Suastegui's observed activities contributed to the overall conclusion that there was probable cause to believe that a drug deal was in the works. See id. at 826 (mentioning Suastegui's suspicious activities). More importantly, those activities--visiting the suspected center of the drug ring, driving in tandem with Del Vizo, chauffering Del Vizo around, hiding nearby while Del Vizo reclaimed the van--connected Suastegui with the illicit activity in more than just a casual or accidental manner. Compare United States v. Hillison, 733 F.2d 692, 697-98 (9th Cir. 1984) (after two known drug dealers were arrested with cocaine, there was probable cause to arrest man who was observed staying near and meeting with both) with United States v. Robertson, 833 F.2d 777, 782-83 (9th Cir. 1987) (a woman's mere presence on the grounds of an alleged drug laboratory was insufficient for probable cause to arrest her). The police's observations definitely gave them a reasonable belief that Suastegui was a part of the criminal enterprise. See Del Vizo, 918 F.2d at 826 n. 7.

III

Suastegui next challenges the searches of his impounded vehicle, of his motel room, and of Del Vizo's van. We treat each of these contentions in turn.

* Suastegui contends that the warrantless search of his Ford Bronco at the police station violated the fourth amendment. He argues that the search could not be justified as a search incident to arrest or as a routine inventory search. He further argues that the government may not assert that the search was justified by the automobile exception to the warrant requirement, because this rationale was not raised until after entry of Suastegui's conditional guilty plea.

The government concedes that the search cannot be justified as a search incident to arrest. See United States v. Vasey, 834 F.2d 782, 785-88 (9th Cir. 1987). We consider below the other possible justifications for the search.

* The district court found that the Bronco was seized because it was used in furtherance of narcotics trafficking and searched in accordance with the Torrance Police Department's inventory procedure.²  The government has the burden of proving the existence of an exception to the warrant requirement. United States v. Jeffers, 342 U.S. 48, 51 (1951). Reliance upon the inventory justification here will not satisfy the burden.

Torrance Police Officer Dick asserted that " [i]t is the practice of the Torrance Police Department to seize the cars believed to be involved in narcotics trafficking, and to bring these cars to the Torrance Police station to be searched in order to prepare an inventory of its [sic] contents." Apparently based upon this testimony alone, the district court concluded that such was the department's practice. Although this would be sufficient to establish the custom, it is insufficient to establish a constitutional exception to the warrant requirement.

Suastegui interprets Officer Dick's language as indicating that the inventory justification was just a pretense for searching vehicles impounded in narcotics investigations for evidence. Suastegui notes that the "inventory" list of the contents of his vehicle was kept on an evidence log. Indeed, a policy of impounding and searching all vehicles of drug dealers, without a non-investigatory justification, is curious to say the least. In Opperman, routine inventory searches were approved precisely because of the clear rationale for having them. See 428 U.S. at 375-76 (discussing such factors as the need to care for the vehicle, absence of the owner, presence of valuables in plain view, and the lack of an indication of pretext for investigation). Nothing in Officer Dick's statement suggests a non-investigatory justification for the purported practice, and the government's argument fails at least on this point.

2

The government also asserts that the automobile exception to the warrant requirement would apply to justify the search of Suastegui's Bronco. On this aspect the government is correct. At a minimum, probable cause to search the Bronco arose when 104 kilograms of cocaine were discovered in the back of Del Vizo's van, the tandem vehicle. The automobile exception squarely applies. See United States v. Ross, 456 U.S. 798 (1982); see also United States v. Klein, 860 F.2d 1489, 1494 & n. 7 (9th Cir. 1988).

Suastegui argues that it is now too late for the government to rely upon the automobile exception, because Suastegui entered into his plea in reliance upon the government's "abandonment" of that theory. See United States v. Salazar, 805 F.2d 1394, 1399-400 (9th Cir. 1986) (refusing to consider new government theory justifying search on appeal). Salazar stands as an exception to the general rule that this court may affirm on any basis fairly presented by the record. See United States v. Burnette, 698 F.2d 1038, 1048 (9th Cir.), cert. denied, 461 U.S. 936 (1983).

In Salazar, this court sua sponte raised the issue of whether the government's warrantless search of containers within an automobile, which the government contended was justified by the automobile exception, could be considered a valid search incident to arrest. However, the court then declined to consider the search on that theory, because the defendant had not had the opportunity to adduce facts before the district court regarding whether there was probable cause for a warrantless arrest. See Salazar, 805 F.2d at 1400.

This case is distinguishable from Salazar. The district court at least partially relied upon the automobile exception to justify the search of Suastegui's vehicle, by citing Ross in its conclusions of law. Although Suastegui objected to the court's findings and conclusions, which were proposed and adopted after Suastegui's guilty plea, he did not move to withdraw the plea or otherwise indicate that his plea was conditional on particular theories being considered or abandoned. Further, the only issue with respect to the applicability of the exception to the search was whether the police possessed probable cause to search the vehicle, and that issue was thoroughly explored before the district court.

Contrary to Suastegui's contentions, in Vasey we did consider whether the automobile exception would justify the search of a vehicle when the search could not be justified as one incident to arrest. See 834 F.2d at 788 n. 2 (court requested supplemental briefing on the issue and then ruled). Vasey is remarkably similar to this case procedurally: the government justified a warrantless search as a search incident to arrest; the district court denied a motion to suppress on this theory; the defendant entered a conditional guilty plea, preserving his right to appeal the denial of the motion. See id. at 784. Applying the exception, we conclude that the search of the Bronco was valid.

B

The day after Suastegui was arrested, a police officer met with him and told him that the police had discovered a motel room key. The officer asked Suastegui if they could search the room. Suastegui reportedly replied, "Go ahead, I don't care, you won't find anything there, it's empty."³  The police found a ledger in the motel room in a subsequent search.

Suastegui contends that the search of the motel room violated the fourth amendment because his consent was not voluntary and that any consent is invalid because it was tainted by his illegal arrest. We have already disposed of the second contention. The question remains whether Suastegui's consent was voluntary.⁴ 

Voluntariness is a question of fact to be determined from all the surrounding circumstances. United States v. Whitworth, 856 F.2d 1268, 1279 (9th Cir. 1988), cert. denied, 109 S. Ct. 1541 (1989). The district court's determination that Suastegui voluntarily consented to the search of the motel room was not clearly erroneous. When Officer Cobb spoke with Suastegui on the day following the latter's arrest, Cobb was alone. He merely held up a driver's license (to check the picture against Suastegui's features) and then told Suastegui that they wished to search the room. Despite an absence of new Miranda warnings, the scenario does not smack of coercion or duress. Compare United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988) (district court's finding of voluntariness not clearly erroneous where suspect's consent to a lone officer with a holstered gun was obtained while in custody) with United States v. Al-Azzawy, 784 F.2d 890, 895 (9th Cir. 1985) (district court's finding that consent was involuntary not clearly erroneous where consent was obtained while suspect was on his knees with guns trained upon him), cert. denied, 476 U.S. 1144 (1986).C

Suastegui asserts that he has standing to challenge the search of Del Vizo's van. The district court held otherwise.⁵  We need not address the difficult fourth amendment standing question presented by this contention. We have already rebuffed a constitutional objection to the search of Del Vizo's van. See Del Vizo, 918 F.2d at 827 n. 9. Suastegui's challenge, made on the same grounds as Del Vizo's, must fail as well.

IV

Suastegui contends that the district court improperly adjusted his base offense level upward by three levels under section 3B1.1(b) of the Sentencing Guidelines. That section provides for a three level increase in the offense level " [i]f the defendant was a manager or supervisor ... and the criminal activity involved five or more participants, or was otherwise extensive...."

The plain language of section 3B1.1(b) does not require that the defendant be found to have managed all of the five or more people involved in the scheme. Rather, the Guidelines only require that the defendant manage at least one other person in the criminal activity.

Application Note 3 to Sec. 3B1.1 provides in part:

Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

Here, the district court found that the criminal activity involved five or more people and that Suastegui was the manager or supervisor of at least one of them.⁶  The presentence report states that Suastegui recruited and managed Del Vizo, his longtime acquaintance. Suastegui also apparently admitted that he recruited and managed Del Vizo. Cf. United States v. Carrillo, 888 F.2d 117 (11th Cir. 1989) (per curiam) (defendant admitted supervision of low-level employees in narcotics ring and thus earned an upward adjustment under 3B1.1), cited in Mares-Molina, 913 F.2d at 774.⁷  The district court's conclusion is not clearly erroneous.

V

We conclude that Suastegui's arrest was supported by probable cause. The search of Suastegui's impounded Bronco was permissible under the automobile exception to the warrant requirement. Suastegui consented to the search of his motel room. The search of Del Vizo's van was not improper. Finally, the district court did not err in sentencing Suastegui as a manager or supervisor, as the evidence supported a finding that Suastegui supervised at least Del Vizo in this criminal enterprise.

AFFIRMED.