United States v. Grazioso ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 31, 2008
No. 07-10075 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ANTHONY JOSEPH GRAZIOSO
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:06-CR-22-ALL
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Anthony Joseph Grazioso appeals following his guilty plea for possession
of a firearm in furtherance of a drug trafficking crime. Grazioso reserved his
right to appeal the district court’s pretrial denial of his motion to suppress all
evidence. We AFFIRM.
A confidential informant (“CI”) told police that a person named “Tony” was
dealing methamphetamine from two storage stalls in Irving, Texas, and that
Tony kept the drugs in a toolbox in his pickup truck. Police believed Tony was
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-10075
Grazioso and twice observed him late at night outside the storage stalls acting
suspiciously. They instituted a traffic stop of his truck and discovered that
Grazioso had an outstanding arrest warrant for a parole violation. Officers
arrested Grazioso and impounded his truck. An inventory search revealed 191
grams of methamphetamine, baggies, an empty gun case, and paperwork
showing Grazioso was the lessee of the storage stalls. Upon obtaining a warrant
to search the storage stalls, policed discovered several firearms and more
methamphetamine.
Grazioso moved to suppress the evidence found in both his truck and the
storage stalls. The district court conducted a suppression hearing and granted
the motion, concluding that police improperly stopped Grazioso because the
Government failed to show that Grazioso had committed a traffic violation. The
court held that the evidence found in the storage stalls was the fruit of the illegal
stop. The court noted that the Government did not argue any alternative basis
to uphold the stop. The Government filed a motion for reconsideration, arguing
for the first time that the police had probable cause independent of the alleged
traffic violation to believe Grazioso’s truck contained contraband. The district
court granted the motion and concluded that the officers did have probable cause
to stop Grazioso. The court therefore denied the suppression motion.
Grazioso argues that the Government waived its probable cause argument
by failing to raise it at the suppression hearing, that the district court
erroneously felt constrained by our precedent to grant the motion for
reconsideration, and that the motion prejudiced him. We are not persuaded.
The Government did not waive its probable cause argument by raising it for the
first time in the motion for reconsideration. See United States v. Hassan, 83
F.3d 693, 696 (5th Cir. 1996). Furthermore, the district court correctly
recognized that it retained discretion to consider the motion. See id; see also
United States v. Palmer, 122 F.3d 215, 221 (5th Cir. 1997). Finally, Grazioso’s
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assertion of prejudice is unavailing. He had the opportunity to fully respond to
the Government’s argument, which he did in his response brief. He also had the
opportunity to request another hearing to develop any inadequacies in the
record, but he did not do so.
Grazioso next argues that the Government lacked probable cause to stop
him because there was insufficient corroboration of the CI’s tip. We review the
district court’s ultimate conclusion as to probable cause de novo. Ornelas v.
United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996). We review
findings of fact for clear error and give due weight to the inferences drawn from
those facts by the district court and the police officers. Id.
Police may search an automobile without a warrant if they have probable
cause to believe the vehicle may contain contraband. United States v. Fields, 456
F.3d 519, 523 (5th Cir. 2006). An informant’s tip that is sufficiently corroborated
by independent police investigation may provide a basis for probable cause.
Illinois v. Gates, 462 U.S. 213, 241–42, 103 S. Ct. 2317, 2334 (1983). Similarly,
police may make an investigative stop where the officers have reasonable
suspicion supported by articulable facts to believe that criminal activity may be
afoot. United States v. Martinez, 486 F.3d 855, 861 (5th Cir. 2007).
Here, the CI told police that a person named Tony was dealing
methamphetamine from two storage stalls located at Carl Road and State
Highway 183 in Irving. The CI said that Tony also operated a lawn service and
carried between a quarter-pound and half-pound of methamphetamine in a
toolbox in the bed of a blue or red Ford Ranger pickup truck. The CI further
stated that Tony traded drugs for stolen property, which he kept in the storage
stalls. Police suspected that “Tony” referred to Grazioso, and they corroborated
that Grazioso drove a blue Ford Ranger. They then setup surveillance at the
storage stalls and observed Grazioso near midnight standing at his truck near
the toolbox. Another vehicle was also present. An undercover officer followed
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No. 07-10075
Grazioso and testified that Grazioso drove unusually cautiously and frequently
turned and checked his mirrors, which the officer believed from his experience
was consistent with drug trafficking. Grazioso pulled into a gas station and
looked at the undercover officer, who was stopped at a nearby traffic light.
Believing he had been detected, the officer discontinued the surveillance. Three
nights later, police observed Grazioso at the storage stalls again near midnight
with the same Ford Ranger. Another white male was also present in a red
vehicle. Police again followed Grazioso as he and the red vehicle drove away
together. An officer testified that the red vehicle was closely following Grazioso
as if running interference to divert attention away from Grazioso. As police
attempted to stop Grazioso for a traffic violation, the red vehicle prevented a
marked patrol car from getting behind Grazioso.
Based on the totality of the circumstances, we conclude that police had at
least reasonable suspicion, if not probable cause, to believe that criminal activity
was afoot and to stop Grazioso’s truck. Once the police stopped Grazioso and
learned that he had an outstanding arrest warrant, they had probable cause to
arrest him. Testimony at the suppression hearing showed that the police then
conducted a valid inventory search of the vehicle pursuant to standard police
policy. See United States v. Castro, 166 F.3d 728, 734 (5th Cir. 1999) (en banc).
The district court’s judgment is AFFIRMED.
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