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United States v. Serrano

filed: February 12, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SAUL ESPARZA SERRANO, FERNANDO SERRANO, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Southern District of California. Laughlin E. Waters, District Judge, Presiding. D.C. No. CR. 90-296-LEW.

Before: Browning, Ferguson and Reinhardt, Circuit Judges.

MEMORANDUM

Authorities arrested Saul Esparza Serrano and Fernando Serrano after they left the scene of a narcotics transaction set up by an informer. The Serranos pled guilty to narcotics charges, but appeal the denial of their motion to suppress evidence claiming that there was no probable cause for their warrantless arrest. In addition, Saul Serrano contends that his post-arrest statements were involuntary and obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966) and that he did not voluntarily consent to the search of his apartment. We affirm.

BACKGROUND

Defendants Saul Serrano and Fernando Serrano, cousins, were jointly charged with possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1). Saul Serrano was charged with possession of a firearm by a felon. The Serranos moved to suppress the evidence relating to the seizure of cocaine and Saul Serrano moved to suppress his post-arrest statements. The motions were denied. The Serranos then entered conditional guilty pleas to the counts in the indictment, reserving the right to appeal the denial of the motion to suppress. The district court sentenced Saul to 240 months in prison and Fernando to 145 months.

After DEA agent Stephen Georges ("Georges") and others arrested Henry Fuller ("Fuller") in connection with rock cocaine found in his apartment building, Fuller agreed to cooperate. At the agents' direction, Fuller set up a deal with "Saul," his supplier. Fuller went to the meeting place with Jordan, an undercover agent acting as buyer. At the arranged time two men, later determined to be Saul and Fernando Serrano, arrived.

The government agents testified that Saul drove up to them and a brief conversation followed, in which both money and drugs were mentioned. Jordan testified that he saw Saul Serrano clutching a bag in the front seat of the car. No deal took place. After the Serranos left, Jordan told Georges that the dope was in the Serranos' car, or was probably in the car.*fn1

The Serranos emphasize that the police heard only Fuller's end of the conversation arranging the deal. They claim that when Jordan, Fuller and Saul met briefly in the parking lot, there was no mention of drugs or money. According to Saul Serrano's testimony, the drugs were with Fernando at that point, not in the car.

Georges and other agents followed the Serranos and Georges gave the command to arrest them a short time later. Fernando's face was injured during the arrest. An agent read Saul Serrano his rights. The record does not disclose more precisely what rights were read. The authorities found a bag containing rock cocaine in the front seat of the car.

Georges then ordered his team, with the Serranos, to meet at a nearby hospital parking lot. Here Georges questioned Saul Serrano, who signed a consent form agreeing to a search of his home, where officers seized a triple beam scale, a handgun and cocaine packaging material.

Discussion

I. Determination of Probable Cause to Arrest

Defendants argue a lack of probable cause, claiming that the police acted on the uncorroborated statements of a unreliable informant and that Georges manufactured the basis for probable cause after the fact.

A warrantless arrest is valid if supported by probable cause. United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989), cert. denied, 111 S. Ct. 80 (1990). The test for probable cause is whether facts and circumstances within the officer's knowledge are sufficient to justify a prudent person believing that the suspect has committed, is committing, or is about to commit a crime. United States v. Greene, 783 F.2d 1364, ...


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