United States v. Oliva, Edwin ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2658
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWIN OLIVA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 275—Blanche M. Manning, Judge.
____________
ARGUED FEBRUARY 10, 2004—DECIDED OCTOBER 13, 2004
____________
Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Edwin Oliva was caught attempt-
ing to sell two kilos of cocaine to a confidential informant.
He pleaded guilty to conspiracy to possess and distribute
more than 500 kilograms of cocaine. Oliva’s plea agreement
reserved the right to appeal the district court’s denial of his
motion to suppress his arrest and the search of his car.
Because we find that the arrest and subsequent search
were supported by probable cause, we affirm the conviction.
2 No. 03-2658
I
On March 21, 2002, Drug Enforcement Agency agents
received a tip alerting them to Oliva’s drug business. A
confidential informant told the agents that he had ordered
cocaine from a male Hispanic named “Edwin” before, and
that Edwin would sell him up to five kilograms of cocaine.
With the informant’s cooperation, the agents had the infor-
mant set up a deal with Edwin. Agents recorded more than
four conversations between the informant and Edwin and
the two finally agreed that Edwin would bring two kilos of
cocaine to the informant at his apartment for $40,000.
The drug deal was to take place at 3 p.m. on March 22,
2002. Agents set up surveillance around the informant’s
apartment. At around 2:55 p.m., agents observed a tan Kia
Sephia occupied by two Hispanic males arrive in the area of
the informant’s apartment. The car stopped briefly in front
of the informant’s apartment and then parked a couple of
blocks away.
The men got out of the car and walked toward the in-
formant’s apartment. The informant telephoned an agent
and told him that he recognized the driver of the car as
“Edwin,” later identified as Oliva. The informant also told
the agent that he did not know the man with Oliva and that
he was afraid that because Oliva had someone with him
that the two men would be armed. The informant reported
that he was nervous about getting into the car with Oliva
to complete the drug deal.
As Oliva and the other man, later identified as Edward
Mejia, reached the door, the agents approached, identified
themselves as police, activated emergency lights in their
cars, and drew their weapons. The agents asked the men to
put their hands in the air. Both men refused. Worse, Oliva
put his hand down the front of his waistband where agents
noticed a gun. Mejia appeared to have a gun as well. The
police then rushed the men and after a brief scuffle placed
No. 03-2658 3
them both in custody. The police recovered loaded 9mm
semi-automatic handguns from both Mejia and Oliva.
As the arrests were taking place, the agents left in charge
of watching the Kia placed a call to a canine unit to search
for the presence of drugs in the car. No cocaine was found
on either Oliva or Mejia, but the informant had stated that
Oliva drove a car with a trap compartment. On arrival,
Duke, a drug-sniffing dog, alerted to the passenger-side
door and, once inside the Kia, to the passenger-side air-bag
compartment. Agents discovered the air-bag compartment
was a trap containing almost two kilos of cocaine.
Oliva and Mejia were indicted on June 19, 2002, on one
count of conspiracy to distribute and to possess with intent
to distribute more than 500 grams of cocaine, in violation of
21 U.S.C. § 846 (Count I), one count of possessing more
than 500 grams of cocaine with intent to distribute, in vio-
lation of 21 U.S.C. § 841(a)(1) (Count II), and one count of
carrying and using a firearm during the commission of a
controlled substance offense, in violation of 18 U.S.C. § 924(c)
(Count III). Oliva filed motions to suppress both the war-
rantless search and warrantless arrest. He argued that the
agents lacked probable cause to arrest him, claiming that
the informant had not provided enough information about
the deal and that the agents had failed to corroborate inde-
pendently the details the informant provided. With respect
to the search of the car, Oliva argued that it was under-
taken before the drug-sniffing dog arrived on the scene and
that the agents lacked probable cause. The district court
initially denied an evidentiary hearing on both motions, but
later granted a hearing on the motion to suppress the re-
sults of the search, based on some confusion as to when the
dog sniff took place and when the agents entered the car.
On February 10, 2003, following the evidentiary hearing,
the district court denied both motions to suppress. The
court found that the police had sufficient confirmation of
4 No. 03-2658
the information provided by the informant to give them
probable cause to arrest both men. The court also found
that the dog sniff provided probable cause to search Oliva’s
car for drugs.
Oliva entered a conditional guilty plea to Counts I and
III, preserving his ability to appeal the district court’s de-
nial of the motions to suppress. The government dismissed
Count II. The district court sentenced Oliva on June 10,
2003, to the mandatory minimum sentence of 60 months on
Count I and to the mandatory consecutive sentence of 60
months on Count III, to be followed by five years of su-
pervised release. Oliva contests the district court’s denial of
both his motions to suppress.
II
A
The district court found that the agents’ stop of Oliva was
supported by probable cause. We review the determination
de novo, although we review findings of fact for clear error
and give due weight to inferences drawn from those facts by
the district court and law enforcement. See Ornelas v. United
States, 517 U.S. 690, 699 (1996).
“In order to make an arrest without a warrant, the police
must have probable cause, under the totality of the circum-
stances, to reasonably believe that a particular individual
has committed a crime.” United States v. Gilbert, 45 F.3d
1163, 1166 (7th Cir. 1995). We assess the determination of
probable cause for a search or an arrest under the common-
sense “totality of the circumstances” analysis established in
Illinois v. Gates, 462 U.S. 213 (1983), which requires us to
decide “whether, given all of the circumstances set forth . . . ,
there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Id. at 238; see
Gilbert, 45 F.3d at 1166.
No. 03-2658 5
An informant’s tip, if reliable, is considered trustworthy
information. See United States v. Scott, 19 F.3d 1238, 1242
(7th Cir. 1994). The district court is required to consider the
informant’s information in light of how detailed it is, how
reliable it is, and to what degree it is corroborated by other
information available to the officers. United States v.
Navarro, 90 F.3d 1245, 1253 (7th Cir. 1996). An unverified
tip from a known informant must be judged, like all other
information supporting a search, in light of the totality of
the circumstances.
On appeal, Oliva argues that the tip the police received
from the informant was not reliable because the police did
not know the informant before the initial tip, because actual
events contradicted the informant’s information, and because
the police failed to corroborate any of the informant’s in-
formation.
Although the police did not know the informant before the
initial phone call, that alone does not make the informant’s
information unreliable. It means at most that the agents
might need to do more work to verify the information given
by the informant, which the agents did in this case. Oliva
maintains that the police did not independently verify the
informant’s information, but this does not do them justice.
In fact, before stopping Oliva, the agents observed him
taking the actions which the informant had said to expect.
That is exactly the type of corroboration that counts. See
Navarro, 90 F.3d at 1254 (“[B]ecause the surveillance
preceding the stop corroborated the information from the
informant, the law enforcement officers had probable cause
for both the arrest and search”); Alabama v. White, 496 U.S.
325, 329 (1990) (stating that if “an informant is shown to be
right about some things, he is probably right about other
facts that he has alleged, including the claim that the object
of the tip is engaged in criminal activity.”).
Unfortunately for Oliva, “everything transpired as the
informant described.” Navarro, 90 F.3d at 1253. The initial
set-up of the drug deal was done under the direction of the
6 No. 03-2658
agents themselves—this was not a situation where an in-
formant informed agents of an already scheduled deal. The
informant told police that his dealer was a Hispanic male
named Edwin. At the pre-arranged time, agents observed a
Hispanic male drive to the informant’s house, stop briefly,
then park. The Hispanic male got out of the car, with another
man, and walked to the informant’s home. At that time, the
informant phoned an agent and identified the Hispanic
male as Edwin, his drug dealer. The police verified each
piece of the informant’s information by observing it happen.
When events unfolded as predicted, the police had all the
corroboration they required. Actual events did not contra-
dict any aspect of the informant’s information. At worst, the
informant gave incomplete information: the informant did
not say anything about the kind of car Oliva would drive or
that Oliva would bring another person along on the deal. On
the other hand, the informant never said anything inconsis-
tent with those details. The informant’s information,
coupled with the corroboration the police observed as the
deal unfolded, gave the police reasonable suspicion to
believe Oliva possessed cocaine that he intended to sell to
the informant. See United States v. Herrara, 54 F.3d 348,
355 (7th Cir. 1995).
B
Oliva also contends that the search of his car, with the
assistance of the trained dog, was undertaken without prob-
able cause. Oliva theorizes that the police entered his car
before the drug-sniffing dog arrived, because one of the
police reports shows that the dog sniff occurred at 16:15
hours (4:15 p.m.), nearly one hour after the drugs were
removed from the car. Except for that one entry on the
police report, which the district court found to be a typo, all
the remaining evidence contradicts Oliva’s theory. The
district court heard testimony from two officers who were
No. 03-2658 7
present before the sniff, during the sniff, and then during
the subsequent search. The agents testified that they ob-
served Oliva’s Kia from the time he parked it until the
search. Both agents testified that no one entered the Kia
until the dog handler arrived.
Oliva argues that it would be physically impossible for all
the events to take place as alleged. Two phone calls book-
end the start of the arrest and the discovery of the drugs,
the first call at 3:05 and the last at 3:20, leaving only 15
minutes to arrest Oliva, call the handler, wait for the
handler, have the dog alert, and then locate the drugs in
the car. Oliva finds support for his argument in the time
estimates given by the agents during the hearing—that
they waited ten to fifteen minutes for the dog, or that the
arrest took five minutes. The agents did testify, however,
that events moved very quickly and that they had no real
idea how long things took to unfold. Oliva also overlooks the
fact that because police had alerted the dog handler before
the arrest that they would need a drug-sniffing dog, the
handler might have been very close by when he received the
call.
The district court credited the testimony of the agents over
the time recorded on one police report. Ultimately, that is
a credibility determination, one which we will overturn only
if it is completely without foundation. United States v.
Salyers, 160 F.3d 1152, 1162 (7th Cir. 1998). Although we
agree with Oliva that things happened very quickly, they
were not so fast as to be physically impossible. Without more,
we will not disturb the district court’s determination.
III
We therefore affirm the district court’s orders denying
both of Oliva’s motions to suppress, and thus we AFFIRM the
judgment of the district court.
8 No. 03-2658
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-13-04