Unpublished Disposition, 922 F.2d 845 (9th Cir. 1988)

No. 89-10560.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and BRUNETTI, Circuit Judges, and BELLONI,^*  District Judge.

MEMORANDUM^** 

Jesus Albert Ramirez-Robles appeals his conviction of conspiracy to possess with intent to distribute marijuana under 21 U.S.C. 846 and possession with intent to distribute marijuana under 21 U.S.C. 841. Ramirez contends that the district court erred by denying his motion to suppress evidence. His assertion is that the evidence should have been suppressed because he was arrested and his van was searched without probable cause. The question whether Ramirez was subject to an arrest is reviewed de novo. United States v. Al-Azzawy, 784 F.2d 890, 891-92 (9th Cir.) cert. denied, 476 U.S. 1144 (1986). The question whether an arrest and subsequent search are supported by probable cause also is reviewed de novo. United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989). We believe the district court correctly denied the motion to suppress and we affirm.

FACTS

On the night of March 9, 1988, Customs agents conducted surveillance around a suspected marijuana loading site in a remote area outside of Nogales, Arizona. Agents first observed a horse and rider at the site and sometime thereafter two vehicles were spotted heading toward the load site. The lead vehicle was an open bed pickup truck and the other was a white van. Agents observed the vehicles make their way over rough roads until they neared the site. At that point the van flashed its headlights and continued to the load site; the pickup turned around and parked near, but not at the site.

Agents observed the van at the load site and heard the sound of horse hoofs and what may have been bundles being loaded into the van. The van remained at the site for forty minutes and then traveled away from the location until it rejoined the pickup. At this point a helicopter joined the surveillance and after a time observed the two vehicles turn from a dirt road onto an unimproved ranch road. The pilot saw one vehicle pull ahead of the other several times, stop, and then wait for the other to catch up. While the two vehicles were stopped, they sometimes turned off their headlights. The pilot also observed that while the vehicles' lights sometimes went out, either their tail lights or brake lights remained illuminated.

As the vehicles approached a main road from the ranch road, one vehicle pulled ahead. The lead vehicle then returned to the other, flashed its headlights twice, and together they returned to the main road. Once they reached the main road three customs cars with lights flashing pursued the vehicles. At least one car had its siren activated. One of the agents pulled up along side of the van and displayed his badge. When the van did not pull over, this car pulled ahead of the van and forced it to stop. An agent in one of the approaching cars saw a number of bundles through the back window of the van.

An agent pointed a gun at Ramirez, the driver of the van, and instructed him to raise his hands. Defendant was removed from the van and placed on the ground. A search of the van revealed eighty bundles of marijuana weighing 2,349 pounds.

DISCUSSION

Ramirez contends that the agents' actions amounted to an arrest and that the arrest and subsequent search were unsupported by probable cause. We need not discuss whether Ramirez was or was not arrested because we believe the agents had probable cause.

Probable cause exists when facts within an officer's knowledge are sufficient in themselves to warrant a reasonably prudent person to believe that an offense has been or is being committed. Beck v. Ohio, 379 U.S. 89, 91 (1964); United States v. Hoyos, 892 F.2d 1387 (9th Cir. 1989).

Appellee asserts that probable cause existed at the time of the arrest, relying on the following information: (a) the van was seen in an isolated area in which there were indications of smuggling activity; (b) an agent heard dull sounds from the area where the van was parked (he later testified he believed this might be the sound of marijuana being loaded into the van; (c) a man on horseback was seen in the area prior to the arrival of the van; (d) a pick-up truck was seen near the area of the suspected load site after the van approached the site; (e) after leaving the site, the van and the truck at times traveled in tandem and otherwise appeared to be engaged in counter-surveillance; (f) the van and the truck avoided the main road which passed through a town by using unimproved ranch roads.

Appellant contends that no information possessed by the customs agents at the time of the arrest was sufficient to establish that a crime had been committed. The only horse and rider observed were not carrying a load. No contact between the person on horseback and the occupants of the vehicles was seen by agents. No actual loading of contraband was observed.

The district court found, however, and appellant concedes on appeal, that a Terry stop was permissible (i.e., that officers had "founded suspicion"). Terry v. Ohio, 391 U.S. 1 (1968). Events between the time the agents signaled defendant to pull over with the intent to conduct an investigatory stop, and the time of the arrest may add to facts possessed by agents that result in probable cause. United States v. Lomas, 706 F.2d 886, 891 (9th Cir. 1983), cert. denied, 464 U.S. 1047 (1984). Agent Waite, in pursuit of the van, observed a large number of bundles through the rear of the van. This fact, coupled with those outlined above, certainly leads to sufficient cause to arrest Ramirez and conduct a search incident to arrest.¹ 

For that reason Ramirez' arrest was supported by probable cause and the district court correctly denied his motion to suppress evidence.

AFFIRMED.