Unpublished Disposition, 861 F.2d 269 (9th Cir. 1988)

MEMORANDUM^* 

Dupard appeals the district court's denial of several pretrial motions leading to his conditional guilty plea to possessing and distributing cocaine. He alleges that the government's conduct during the investigation that led to his arrest was so outrageous that it violated his due process rights. He complains also that the 1984 and 1986 searches of his home, business and car were illegal. We affirm.

FACTS

In 1984 the DEA conducted an investigation of alleged cocaine traffickers, one of whom was Dupard. It uncovered evidence about his reputation as a cocaine dealer, his numerous phone calls from other suspected drug dealers, and the disparity between his extravagant lifestyle and his income as reported in tax records. On this evidence, the Magistrate issued search warrants for Dupard's home and business. The police found him in the bathroom with cocaine paraphernalia and water running in both the sink and bathtub. No arrest was made.

Smith, a federal parolee, entered this ongoing investigation of Dupard in 1986 as a DEA informant. Smith bought cocaine from Dupard and allegedly used drugs occasionally during the period he acted as a DEA informant. One evening he assaulted another patron in a tavern and was arrested by local police and charged with assault.

During August of 1986, the DEA learned from Smith of an arranged drug sale by Dupard to Smith. Shortly before the intended sale, Agent Madonna obtained an arrest warrant based on other information provided by Smith. Madonna arrested Dupard en route to Smith's home, searched his car, and found cocaine.

ANALYSIS

Dupard first argues that the informant's allegedly criminal acts constituted outrageous governmental conduct, which violated due process. He contends that this violation required dismissal of several indictments. We review de novo. United States v. Williams, 791 F.2d 1383, 1386 (9th Cir. 1985), cert. denied, 479 U.S. 869 (1986). This argument does not survive review.

In United States v. Russell, 411 U.S. 423, 431-32 (1973), the Court recognized that a criminal defendant's due process rights could be violated by outrageous governmental conduct. See also Hampton v. United States, 425 U.S. 484 (1976). In this circuit, law enforcement conduct becomes unconstitutional "where the police conduct involved unwarranted physical, or perhaps mental, coercion" or "where the crime is fabricated entirely by the police." United States v. Bogart, 783 F.2d 1428, 1438 (9th Cir. 1986), vacated on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986); see also United States v. Ramirez, 710 F.2d 535, 539 (9th Cir. 1983). This defense, however, is a narrow one. Only once have we dismissed an indictment upon it. See Greene v. United States, 454 F.2d 783 (9th Cir. 1971).

Informant Smith's allegedly criminal behavior does not satisfy either showing of outrageous government conduct. He exerted no physical or psychological coercion upon Dupard. Dupard's indictments for possession and distribution of cocaine were not fabricated by Smith's alleged drug use or assault on a tavern patron. Smith's improper conduct was not outrageous in the manner required by Bogart for dismissal upon due process grounds.

Evidence that the drug scheme existed before police or DEA involvement provides reason not to apply the defense. See, e.g., United States v. Wiley, 794 F.2d 514, 515-16 (9th Cir. 1986). No government fabrication of the crime can legitimately be argued. The 1984 search of Dupard's home and the evidence of his association with suspected drug dealers suggest strongly that his drug distribution scheme began before any government involvement. The motion to dismiss was properly denied.

Dupard next contends that the affidavits supporting the 1984 and 1986 search warrants did not establish probable cause. Both arguments lack merit. With the 1984 warrant, evidence of Dupard's reputation as a drug dealer, the calls from other dealers and his extravagant lifestyle showed probable cause. Smith's controlled cocaine purchases from Dupard along with the evidence from the 1984 search in turn supported the probable cause for the 1986 search warrant. The court properly denied motions to suppress. Dupard's assertion that his arrest was unlawful lacks merit because the arrest warrant was based on probable cause.

The final argument is that Agent Madonna's warrantless search of his car violated Dupard's fourth amendment rights. We review de novo the issue of the lawfulness of an automobile search, which presents a mixed question of law and fact. United States v. Vasey, 834 F.2d 782, 785 (9th Cir. 1987).

United States v. Ross, 456 U.S. 798 (1982), controls the issue of the constitutionality of the warrantless search. Law enforcement officers may conduct an automobile search without a warrant when they have probable cause to believe that contraband is inside a car that they have stopped legitimately. Id. at 825. In this case, the officers and Madonna had probable cause to believe contraband was inside the car. They had been informed that day of Dupard's intended drug sale and delivery to Smith. They stopped the car en route, made an arrest, searched and found cocaine.

These grounds to conduct the warrantless search persist even after the car has been immobilized by the police and the driver detained, as in this case. See Michigan v. Thomas, 458 U.S. 259, 261 (1982) (per curiam). The motion to suppress was properly denied.

AFFIRMED.