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United States v. Gil

filed: July 6, 1995.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN JARIO GIL, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. DANIEL MONTOYA, DEFENDANT-APPELLANT.



Appeals from the United States District Court for the Central District of California. D.C. No. CR-92-00085-GLT, D.C. No. CR-92-00085-GLT-1. Gary L. Taylor, District Judge, Presiding.

Before: James R. Browning, Dorothy W. Nelson and Michael Daly Hawkins, Circuit Judges. Opinion by Judge Hawkins.

Author: Hawkins

HAWKINS, Circuit Judge:

John Jario Gil, Daniel Montoya and Nanette Cruz were indicted for (1) conspiracy to possess cocaine with intent to distribute, and conspiracy to distribute cocaine, and (2) possession, with intent to distribute, of approximately 71 kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Gil and Montoya ("defendants") were convicted on both counts, and Cruz was convicted on the conspiracy count.*fn1 Gil was sentenced to a 235 month prison term; Montoya received a 135 month sentence. Both defendants appeal their convictions, and Gil also challenges the district court's calculation of his sentence. We affirm.

I.

On September 1, 1992, acting on information received from a confidential informant,*fn2 officers of the Anaheim Police Department began surveillance of several people, including Gil and Montoya, who were suspected of trafficking cocaine. On several occasions, the police observed Gil and Montoya engaging in what the officers considered to be suspicious behavior, including counter-surveillance driving, deliveries of weighted bags to various locations, and frequent use of pagers and public telephones. On the basis of these observations, the officers obtained search warrants for a condominium on Avenida Abuelitos, an apartment on San Bruno street, and two other locations.

At the Abuelitos residence, the officers found 71 kilograms of cocaine, $7,200 in cash, photographs of the defendants together, and bills and airline tickets in Montoya's name. The officers also found a notebook containing a "drug ledger." The encoded entries showed incoming and outgoing quantities, with a total of 459 kilograms incoming and a balance of 71 kilograms. On one of the ledger pages, many of the entries were marked "Tono took" or "Tono brought" followed by the number of kilograms incoming or outgoing. Agents also executed the San Bruno warrant and discovered a safe containing $86,510 in cash, a passport in the name "John Antonio Gil," and various other papers in Gil's name. Two ledger pages were found on a coffee table, and the entries thereon directly corresponded with the Abuelitos ledger, with that the words "I took" or "I brought" appearing where the Abuelitos ledger had the words "Tono took" or "Tono brought."

II.

Before trial, the defendants each filed motions to suppress the evidence seized pursuant to the search warrants. The district court denied the motions, ruling that the warrants were supported by probable cause.

A. Probable Cause

The lower court's determination of probable cause will not be reversed absent a finding of clear error. United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993). The Judge making the original determination of probable cause is accorded significant deference by the reviewing court. In re Grand Jury Subpoenas dated Dec. 10, 1987, 926 F.2d 847, 856 (9th Cir. 1991); United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986).

Defendants argue that the search warrants were not based on probable cause, because the supporting affidavits merely listed observations of outwardly innocent behavior. However, observations of conduct consistent with drug trafficking, even though apparently innocuous, can give rise to probable cause. See, e.g., United States v. Mejia, 953 F.2d 461, 465 (9th Cir. 1991) (actions inconsistent with a legitimate trucking business, together with pager calls and evasive driving, gave rise to probable cause), cert. denied, 504 U.S. 926 (1992); United States v. Ocampo, 937 F.2d 485, 490 (9th Cir. 1991) (counter-surveillance driving, tandem driving, a car switch, and beeper phone calls provided a substantial basis for the probable cause determination); United States v. Hoyos, 892 F.2d 1387, 1393 (9th Cir. 1989) ("That some of these acts, if reviewed separately, might be consistent with innocence is immaterial."), cert. denied, 498 U.S. 825, 112 L. Ed. 2d 52, 111 S. Ct. 80 (1990); United States v. Rodriguez, 869 F.2d 479, 483 (9th Cir. 1989) ("It is not uncommon for seemingly innocent conduct to provide the basis for probable cause.").

Furthermore, when interpreting seemingly innocent conduct, the court issuing the warrant is entitled to rely on the training and experience of police officers. United States v. Arrellano-Rios, 799 F.2d 520, 523 (9th Cir. 1986) ("The experience of a trained law enforcement agent is entitled to consideration in determining whether there was probable cause."); United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir. 1985) ("The officers' experience may be considered in determining probable cause."), appeal after remand, 833 F.2d 1284 (9th Cir. 1987), cert. denied, 486 U.S. 1017 (1988).

The affidavit in this case included observations of counter-surveillance driving, car switches, the use of pagers and public telephones, suspicious deliveries, the use of a truck that bore the characteristics of a "load vehicle," and the recovery of two kilograms of cocaine from a woman who had just been in Gil's car. In light of this evidence, the district court did not err in finding that the warrants were supported by probable cause. Cf. Ocampo, 937 F.2d at 490 (similar actions created probable cause).

In addition to a demonstration of probable cause as to criminal activity, a warrant's validity is dependent on a showing that evidence probably will be found at the locations searched. United States v. Greany, 929 F.2d 523, 524-25 (9th Cir. 1991); United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988). Probable cause that a resident of the location has committed a crime is inadequate, in itself, to satisfy this requirement. United States v. Ramos, 923 F.2d 1346, 1351 (9th Cir. 1991). The defendants assert that there was insufficient information linking the residences searched to the criminal activity.

However, "based on the nature of the evidence and the type of offense, a magistrate may draw reasonable inferences about where evidence is likely to be kept." United States v. Garza, 980 F.2d 546, 551 (9th Cir. 1992). This Court "has recognized that 'in the case of drug dealers, evidence is likely to be found where the dealers live.'" United States v. Terry, 911 F.2d 272, 275 (9th Cir. 1990) (quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986));

The surveillance observations listed in the affidavit provided a sufficient basis for the Judge to infer that the defendants lived at the residences searched, and that they were involved in the drug trade. Considering the totality of the circumstances, "'there [was] a fair probability that contraband or evidence of a crime [would] be found'" in the Abuelitos and San Bruno residences. United States v. Rodriguez, 869 F.2d 479, 484 (9th Cir. 1989) (quoting Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 ...


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