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United States v. Nunez

*fn* submitted san francisco california: June 17, 1993.

UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE,
v.
ARCADIO NUNEZ, DEFENDANT/APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. LIBRADO NUNEZ, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE, V. PAZ NUNEZ, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of California. D.C. No. CR-F-91-070-MDC. M. D. Crocker, Senior District Judge Presiding

Before: Norris and Rymer, Circuit Judges, and Taylor,**fn** District Judge

MEMORANDUM

All three defendants appeal following their convictions for cultivating marijuana and conspiracy. We affirm as to Librado Nunez and Arcadio Nunez, but reverse and remand as to Paz Nunez.

A. LIBRADO NUNEZ

Appellant Librado Nunez was convicted of conspiracy to cultivate marijuana, cultivating marijuana, and aiding and abetting the cultivation of marijuana, and sentenced to 151 months in prison. He appeals the denial of his motion to suppress, his resulting conviction, and his sentence.

1. Motion to suppress

Appellant contends that he was arrested without probable cause, and therefore the follow-up search of his home was improper. In such an inquiry, the district court's findings of fact and determinations of credibility are reviewed for clear error. United States v. Bautista, 684 F.2d 1286 (9th Cir. 1982). The district court's legal Conclusions are reviewed de novo. United States v. Flippin, 924 F.2d 163 (9th Cir. 1991).

a. Probable Cause for Arrest

A warrantless arrest of a person in a public place based on probable cause does not violate the Fourth Amendment. United States v. Watson, 423 U.S. 411 (1976). Police officers have probable cause to arrest if "at the moment of the arrest, facts and circumstances within their knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense." United States v. Arias, 923 F.2d 1387, 1390 (9th Cir. 1991). Pursuant to this standard, the district court found that the officers had probable cause to arrest the defendant, based on the totality of the circumstances known to them at the time of arrest. See, e.g. United States v. Holzman, 871 F.2d 1496 (9th Cir. 1989).*fn1

Of course, ". . . mere propinquity with known criminals does not, without more, give rise to probable cause." United States v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984). However, the officers did not arrest Librado Nunez because of "mere propinquity with known criminals," but based on the totality of the circumstances. Librado was identified as a relative of the two co-appellants arrested earlier that day.*fn2 The arrestees stated that they were dropped off by a friend driving a yellow sedan.*fn3 This vehicle had been seen at the trail entrance site a number of times during the investigation. All factors considered, the appellant's location fairly close to the marijuana sites and to the yellow sedan created probable cause for his arrest. The trial court did not commit error.*fn4

b. Voluntariness of consent to search

Following his arrest appellant signed a "Permission to Search" form, and his residence was searched, yielding evidence later used against him. A voluntary consent may waive an individual's Fourth Amendment protection. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

In order to be valid, a consent to search must be voluntary, that is, the product of an essentially free and unconstrained choice. United States v. Ritter, 752 F.2d 435 (9th Cir. 1985).

Appellant did not challenge the voluntariness of his consent at the suppression hearing. He now asserts it was error on the part of the district court not to inquire whether appellant knew what he was signing, whether or not the form had been ...


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