Unpublished Disposition, 923 F.2d 864 (9th Cir. 1989)

No. 89-30332.

United States Court of Appeals, Ninth Circuit.

Before CANBY and TROTT, Circuit Judges, and LEGGE, District Judge^* .

MEMORANDUM^** 

Defendant and appellant Leonel Perez-Guerra was convicted of possession with intent to distribute cocaine, and possession of a firearm during a drug offense. He appeals, claiming error in the district court's denials of his motion to suppress and his motion in limine. We hold that there was no error and affirm.

This appeal concerns events which occurred shortly before and at the time of defendant's arrest.

Juan Aispuro was arrested in a separate case. As part of a plea agreement he agreed to act as an informant. Multnomah County Deputy Sheriff Jerry Hill had known of Aispuro as a mid-level trafficker in drugs, including heroin and cocaine, for two years prior to his arrest. Officer Hill believed Aispuro to be a reliable informant, as he had been involved in the drug culture for years and had witnessed the sale of cocaine on 300 or more occasions, and because Hill had never found him to be untruthful. Prior to this case, Aispuro took part in an investigation leading to the seizure of two kilos of cocaine and a state court indictment.

The investigation leading to defendant's arrest began when Aispuro told Officer Hill that he had a friend who knew a person who could provide kilogram quantities of cocaine. The next step was to obtain a sample of the cocaine in a "controlled buy." On March 22, 1989, Aispuro picked up his friend and returned to Officer Hill. The friend made a telephone call to a telephonic pager. Thereafter, defendant arrived in a blue and white Mustang. Aispuro and his friend were observed as they got into that car and drove around the block. Aispuro then got into his car, rendezvoused with Officer Hill, and gave Officer Hill one-eighth ounce of cocaine. Aispuro said that he obtained the one-eighth ounce of cocaine from defendant.

Arrangements were made the following day, March 23, to purchase a kilogram of cocaine from defendant. Once again, Aispuro picked up his friend and brought him to a prearranged location. Aispuro and his friend met with an undercover agent who showed them a quantity of money which was to be used to purchase the kilo. Officer Hill observed the friend making a pager telephone call. Approximately five minutes later, the friend received a return call. In a different part of town, Immigration and Naturalization Service Agent Valladolid was following defendant, who was driving the same blue and white Mustang that was observed the previous day. He saw defendant stop and make a phone call. Throughout this time, Agent Valladolid was in radio contact with Officer Hill. The radio communications established that the friend received his phone call at the same time that defendant placed his phone call. Both hung up their phones at the same time.

Defendant, in the Mustang, rendezvoused with Aispuro and the friend in their car. The two cars exited a parking lot, stopped briefly on an adjacent side street, and then proceeded to where the transaction was to be completed.

Officer Hill had arranged for Aispuro to signal when he observed the cocaine in defendant's vehicle. Hill followed defendant to a parking lot, where Aispuro gave the prearranged signal, and the challenged search ensued.

After the Mustang stopped, both of its occupants, including defendant, exited and walked towards the officers. Agent Valladolid approached them, showed them his credentials and gave them Miranda warnings in Spanish. He inquired who owned the car and Jose Valenzuela stated that it was his. Valladolid then requested Valenzuela's consent to search the vehicle. He told Valenzuela that he did not have to give consent, and that if he did not give it the car would not be searched. Valenzuela consented to the search. The search of the vehicle was done without a search warrant. A kilo of cocaine was discovered in the car.

Defendant moved to suppress the results of the search, on the ground that it was warrantless and unsupported by probable cause. The district court ruled that (1) defendant did not have standing to contest the search, (2) there was probable cause for the search, and (3) the search had been consented to. Because we hold that there was probable cause for the search, there is no need to discuss the other issues.

The district court's finding of probable cause is reviewable de novo. United States v. Howard, 758 F.2d 1318, 1319 (9th Cir. 1985). The district court's findings of facts are reviewable for clear error. United States v. Feldman, 788 F.2d 544, 550 (9th Cir. 1986).

Relying on United States v. Ross, 456 U.S. 798 (1982), the district court held that the warrantless search was properly conducted because the vehicle was legitimately stopped and there was probable cause to believe that contraband was concealed within it. Probable cause was supplied by the events of March 22 and 23 and by Aispuro. The district court said Aispuro had:

[S]uccessfully obtained narcotics for the police just one day before. Many of his actions and statements had been corroborated by the police previously. One of the individuals involved with the cocaine buy the day before was observed to be the passenger in the vehicle (defendant). The vehicle associated with the narcotics transaction the day before was the same vehicle which the informant signaled for the officers to stop the next day. Upon receiving the signal from the [informant] that the vehicle had the cocaine in it, the officers had probable cause to approach the vehicle, search for the contraband and arrest the occupants.

Defendant disputes the foundation for the finding of probable cause, on the ground that the investigation leading to the search was solely the effort of state law enforcement agencies. The record demonstrates that the investigation was the combined efforts of both state and federal officers. However, even if it had been solely the result of state law enforcement activity, the evidence of probable cause was nevertheless admissable. United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1987).

In order to justify the warrantless search of the vehicle, the government need only demonstrate that probable cause existed. Ross, 456 U.S. at 809; see also California v. Carney, 471 U.S. 386, 395 (1985); United States v. Bagley, 772 F.2d 482, 491 (9th Cir. 1985) ("the existence of probable cause alone justifies a warrantless search or seizure of a vehicle lawfully parked in a public place."), cert. denied, 475 U.S. 1023.

Probable cause exists if the "facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, [to believe] in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). A court must analyze the "totality-of-the-circumstances" to determine the reliability of an informant. Illinois v. Gates, 462 U.S. 213, 233 (1983).

There was probable cause here, based on both the information from the informant and the observations of the officers on March 22 and 23. The facts stated in Section I above demonstrate the existence of such cause. Defendant's arguments about the absence of probable cause concern the weight to be given to certain evidence, primarily that of Aispuro, and whether the evidence showed as much probable cause as evidence in other reported decisions of this court. Probable cause is a finding to be made under the facts of each case, and the evidence here was sufficient.

Defendant made a motion in limine to preclude evidence of the March 22 events. Defendant contended that the evidence was improper "other acts" evidence under Federal Rule of Evidence 404(b), and unduly prejudicial under Rule 403. The district court held that the evidence was admissible under both rules. In the jury instructions, the court limited the jury's consideration of that evidence to proving defendant's state of mind and identity.

The record indicates that the events of March 22 were not "other acts" within the prohibition of Rule 404(b). Rather, the events of March 22 were part of one series of events set in motion by the informants, the police, and defendant, which resulted in both of the transactions on March 22 and March 23. They were "inextricably intertwined with, and part of the same transaction." United States v. Mundi, 892 F.2d 817, 820 (9th Cir. 1989).

Even if the events of March 22 were "other acts" within the prohibition Rule 404(b), they were admissible under the four-part admissibility test of that rule. United States v. Spillone, 879 F.2d 514, 518-19 (9th Cir. 1989), cert. denied, 111 S. Ct. 210 (1990). United States v. Scott, 767 F.2d 1308, 1310-11 (9th Cir. 1985). The evidence was admissible at least on defendant's state of mind and identity. And the district court properly limited the use of the evidence in the instructions to the jury. The district court's decision not to exclude the evidence under Rule 403 was a proper exercise of its discretion. Spillone, 879 F.2d at 518.

AFFIRMED.