Unpublished Disposition, 935 F.2d 276 (9th Cir. 1987)

No. 89-30245.

United States Court of Appeals, Ninth Circuit.

Before HUG and D.W. NELSON, Circuit Judges, and CARROLL,^*  District Judge.

MEMORANDUM^** 

Wilfredo Elenes-Arce (Elenes) was charged in a superseding indictment with three counts of drug trafficking. Pursuant to a plea agreement, Elenes pled guilty under the provisions of North Carolina v. Alford, 400 U.S. 25 (1970), to one count of possession with intent to distribute cocaine on August 5, 1987. See 21 U.S.C. § 841(a) (1) (1988). The remaining counts were dismissed. Under Fed. R. Crim. P. 11(a) (2), Elenes reserved the right to appeal the denial of his motion to suppress. On appeal, Elenes also asserts the district court relied upon false and unreliable information in imposing his sentence. We affirm.

Elenes challenges the denial of his motion to suppress, contending that cocaine seized from a van he was driving was taken unlawfully.

Founded or reasonable suspicion is required at the time a stop is initiated in order to justify an investigatory stop. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988). Whether a founded suspicion exists presents a mixed question of law and fact which is reviewed de novo. United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir. 1985), cert. denied, 486 U.S. 1017 (1988). The findings of fact forming the basis of the district court's conclusion are reviewed for clear error. Id.

The question is whether, under the totality of the circumstances, the detaining officers had a particular and objective basis for suspecting that James Mitchell, a known state prison escapee, had entered a departing van. See United States v. Cortez, 449 U.S. 411, 417-18 (1981); see also United States v. Sokolow, 104 L. Ed. 2d 1, 10 (1989). We agree with the district court that sufficient founded suspicion existed. The officers had a reasonable basis to suspect Mitchell was in the residence. His black Camaro was parked in the residence driveway, where it had been seen leaving only three and a half hours earlier. The officers saw the van drive slowly by the residence, turn around, then park near the residence. The unidentified individual approached the van from the direction of the residence near the time of the release of Mitchell's girlfriend from the city jail.

Under the totality of the circumstances, we conclude that the detention was not transformed into an unlawful arrest, as Elenes argues. See United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir.), cert. denied, 476 U.S. 1185 (1986). The police reasonably believed the van was transporting Mitchell, a known state prison escapee. The van initially failed to acknowledge the police lights and sirens. During an investigatory stop, the officers may use reasonable protective force. See, e.g., United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987). The district court found that the van occupants' nervous behavior led police to suspect they would be uncooperative or attempt to escape. Under these circumstances, the use of handcuffs and placement in separate police cars do not necessarily establish an arrest. See, e.g., United States v. Parr, 843 F.2d 1228, 1230 (9th Cir. 1988) (noting "there is no per se rule that detention in a patrol car constitutes an arrest"); United States v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir. 1982) (handcuffing was not excessive as a protective measure and eliminated possibility of escape where bank robbery suspects appeared nervous and as if they considered escaping), cert. denied, 459 U.S. 1211 (1983). Contrary to Elenes' assertion, the Supreme Court has recently noted that " [t]he reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques." Sokolow, 104 L. Ed. 2d at 12.

Finally, we conclude the cocaine was properly seized under the plain view doctrine. The applicability of the plain view exception to the warrant requirement presents a mixed question of law and fact which is reviewed de novo. United States v. Disla, 805 F.2d 1340, 1346 (9th Cir. 1986). There are three requirements for the plain view exception. "First, the officer must have a prior justification for the intrusion that allowed him to view plainly the evidence. Second, the discovery of the evidence must be inadvertent. Third, it must be 'immediately apparent to the police that they have [incriminating] evidence before them.' " United States v. Miller, 769 F.2d 554, 556 (9th Cir. 1985) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 466, 469 (1971) (plurality opinion) (other citations omitted)).

The district court found that after Elenes and the passenger were removed from the van and handcuffed, Sergeant Folliard entered the van through the driver's door in order to determine whether Mitchell was present. This intrusion was justified under the circumstances. There he observed under the driver's seat a portion of a paper bag. Shining his flashlight, he noticed the bag appeared to contain a package inside. This discovery was inadvertent. Finally, from the packaging he suspected it contained cocaine. The bag remained untouched as U.S. Customs Service Special Agent Van Horn arrived a few minutes later. Based on his experience, Van Horn opined that the packaging was similar to packages of cocaine imported from South America. The police officers then seized the package, which ultimately was proven to contain one kilogram of cocaine. The officers' visual observations under these circumstances did not constitute a Fourth Amendment search. See, e.g., United States v. Orozco, 590 F.2d 789, 792 (9th Cir.), cert. denied, 442 U.S. 920 (1979).

In this pre-Sentencing Guidelines case, Elenes also contends the sentencing court abused its discretion by relying on false and unreliable information in imposing his sentence. United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir. 1989). We conclude Elenes has not established the challenged information is materially false or unreliable and that the judge relied upon it in imposing the sentence. United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986).

First, Elenes contests the presentence report conclusion that he was a "principal" and "lieutenant" in the Valdez drug distribution organization. This conclusion was based upon intelligence information and information supplied by informants. Elenes contends that "mere statements of an anonymous informant, standing alone, do not bear sufficient indicia of reliability." Kerr, 876 F.2d at 1446 (emphasis added; citation omitted). The court also had the benefit, however, of Agent O'Connor's opinion at the sentencing hearing concerning the culpability level of Elenes.

Second, Elenes challenges the presentence report statement that a search of the Alderview Drive residence of Rosario and Trinidad Amador-Castro resulted in the seizure of numerous personal papers of Elenes. According to the sentencing hearing testimony of O'Connor, among the papers were rental receipts indicating Elenes had previously resided at 205 NE Lombard, where Linda Lujan lived. This house was owned by Valdez. While this evidence does not necessarily demonstrate criminal activity, it does serve to connect Elenes to Valdez.

Third, Elenes disputes the presentence report statement that he distributed approximately 25 kilograms of cocaine each month. O'Connor, however, also opined at the hearing that Elenes was capable of distributing 25 kilograms of cocaine a month.

Finally, Elenes argues Agent O'Connor's testimony at the sentencing hearing, providing a separate basis for many of the challenged facts, consisted of unsupported conclusions. Elenes has not shown it was materially false or unreliable. Significantly, Elenes' counsel expressly declined an opportunity to cross-examine O'Connor at the sentencing hearing.

AFFIRMED.