Appeal from United States District Court for the Central District of California. DC No. CR-92-0077-R-4. Manuel L. Real, Chief Judge, Presiding
Before: Fletcher, D. W. Nelson, Circuit Judges, and Will,*fn* District Judge.
After pleading not guilty to two counts of possession with intent to distribute cocaine and one count of conspiring to distribute narcotics, Javier Leon-Corrales filed a motion to suppress evidence and a request for a Franks hearing. Both were denied. Leon-Corrales' case went to trial in June 1992, and the jury deadlocked on the counts against him. The government then filed a superseding information charging him with one count of conspiracy to possess and distribute cocaine, in violation of 18 U.S.C. § 371 and 21 U.S.C. § 841(a)(1). Appellant pled guilty, and was sentenced to 60 months in custody and five years of supervised release. His guilty plea was conditional, reserving the right to appeal the district court's denial of his motion to suppress.
That motion challenged, among other things, the legitimacy of the warrant search of an apartment on Otis Avenue in Bell, California, and the warrantless sweep of the same apartment; both issues are raised again on appeal. We have discussed those issues thoroughly and have affirmed the district court in a memorandum Disposition filed concurrently with this order. United States v. Felix, No. 92-50525. For the reasons set forth therein, we also affirm the district court's denial of the Leon-Corrales' motion to suppress, to the extent that the same issues were raised there.*fn1 We confine the balance of our Discussion here to matters unique to Leon-Corrales' appeal and his motion below: his own warrantless arrest, and the subsequent search of an apartment on Cabell Avenue.
We assume familiarity with the facts described in United States v. Felix, which form the relevant background to appellant's arrest. On January 14, 1992, at approximately 2:00 p.m., appellant was seen leaving the Otis apartment in the company of Ortiz and a person later identified as co-defendant Cristino Jacobo. Ortiz sat in the front passenger seat and Leon-Corrales drove, using counter-surveillance methods. He drove to within two blocks of Benji's Auto Sales, where Ortiz got out; Ortiz later left Benji's in a blue vehicle which he drove in a counter-surveillance manner to an apartment on Evergreen Avenue, and then back to Otis Avenue. Leon-Corrales and Jacobo continued on to a residence on Cabell Avenue in Bellflower, California. Leon-Corrales checked his mirrors many times, "as if looking for a tail." Gutierrez Decl, exh. 2 at 2. At 3:55 p.m., Leon-Corrales and Jacobo drove back to Otis Avenue, passing the Otis apartment several times before parking just west of Otis Avenue. As they walked to the apartment, appellant "looked up and down the street and at passing vehicles as if looking for someone." Id. Around 4:00 p.m., Ortiz entered the apartment. After approximately half an hour, Ortiz, in a red Cougar, headed for a drug deal, after which he was arrested. At about 7:50 p.m., Leon-Corrales and Jacobo left the apartment, tried to drive off in the pickup they had been driving earlier, and were arrested. In the pickup truck police found, among other potentially incriminating items, a drug ledger matching a ledger later found in the Otis apartment.
2. Search Warrant for the Cabell Avenue Residence
The relevant sections of a search warrant affidavit sworn out by Officer Gutierrez state that appellant was arrested for a drug offense; repeat several of the facts leading to the arrest; and describe police communications with Veronica Garcia, said to be appellant's common-law wife. Garcia stated that she and appellant were living together, but denied that they still lived at the McNerney Avenue address given by appellant at his booking. Garcia refused to confirm that the couple lived at the Cabell residence. The day after her police interview, according to the affidavit, a grey Toyota, which Garcia had been driving on the day of the drug deal, was spotted in the driveway of the Cabell Avenue house. Officer Gutierrez concluded in his affidavit that Garcia and appellant lived at the Cabell Avenue location, but were "attempting to keep it a secret." Search Warrant Aff. at 6.
A search warrant for the Cabell location was issued by a state court Judge. Police found $42,000 in a secret compartment in the garage, and three drug ledgers.
Officers have probable cause to make a warrantless arrest if, at the time of the arrest, facts and circumstances within their knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent person in believing that the arrested person has committed or is committing an offense. See, e.g., United States v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984). Determination of probable cause is a mixed question of law and fact. Legal issues are reviewed de novo ; the underlying facts as found by the district court are reviewed for clear error. United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989), cert. denied, 498 U.S. 825, 112 L. Ed. 2d 52, 111 S. Ct. 80 (1990).
Appellant argues that in his case, none of the usual indicia of drug trafficking were presented to the officers at the time of his arrest. He argues that there were "no transfers, no car switches involving the defendant, no cellular phone calls or beeper calls or even pay telephone calls, no heavily laden vehicles indicating the transport of drugs, and no tips by informants." Appellant's Brief at 25. Appellant stresses that "mere propinquity with known criminals does not, without more, give rise to probable cause," Ybarra v. Illinois, 444 U.S. 85, 89, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979), reh'g denied, 444 U.S. 1049, 62 L. Ed. 2d 737, 100 S. Ct. 741 (1980), and contends that a reasonable person observing his activity on January 14 would have concluded that he was engaged in innocent social interaction, and not in drug dealing.
Examination of the record, however, reveals that a reasonable officer would have been warranted in drawing just the opposite Conclusion. Using counter-surveillance methods, appellant drove a person the police knew by the time of appellant's arrest was a drug dealer to a location where that person switched vehicles for the third time that day. Appellant then drove to another location, all the time looking out for a tail. Later, he drove back and forth in front of the apartment which the known drug dealer had visited several times that day; when he parked and walked to the residence, he peered at cars and passersby as if ...