United States v. L. Navarrete-Barron ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 99-1150
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Luis Navarrete-Barron, a/k/a *
Luis Navarrete, *
*
Appellant. *
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Submitted: June 15, 1999
Filed: September 21, 1999
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Before HANSEN and MAGILL, Circuit Judges, and JONES,1 District Judge.
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HANSEN, Circuit Judge.
After a bench trial, the district court2 found Luis Navarrete-Barron guilty of one
count of conspiracy to distribute cocaine, cocaine base, and marijuana, and one count
1
The Honorable John B. Jones, United States District Judge for the District
of South Dakota, sitting by designation.
2
The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
of possession with intent to distribute cocaine base. The district court sentenced
Navarrete-Barron to 151 months in prison. In this appeal, Navarrete-Barron challenges
the denial of his pretrial motion to suppress evidence, his conviction for possession
with intent to distribute cocaine base, and the district court's determination of his base
offense level for sentencing purposes. Finding no error, we affirm.
I. Background
On the morning of June 11, 1994, police officers arrested Jaime Garcia for
driving under the influence after stopping him for a traffic violation. After a failed
attempt by Garcia to bribe the arresting officer with an offer of $10,000 in exchange
for his release, the officer searched Garcia's car. The search produced the following
items: 14 ounces of crack cocaine, $37,000 in cash, and ammunition for a 9 millimeter
handgun. The officer did not discover a weapon. On Garcia's person, the officer found
a key to room number 14 of a local motel. Garcia told the officers that he did not own
the car. He claimed that his friend "Luis," with whom he was staying at the motel,
recently purchased the vehicle. A police officer immediately began surveillance of
room 14 and, shortly thereafter, spotted Navarrete-Barron through a window and an
open doorway. Before police officers could obtain a search warrant, a pickup truck
arrived. The driver of the truck entered the motel room for a short time and made a
quick telephone call. Navarrete-Barron and the driver then exited the motel room with
a duffel bag and drove away in the truck. Approximately one-half mile later, two police
officers stopped the truck. The officers drew their guns and ordered the driver and the
passenger (Navarrete-Barron) to exit the truck with their hands in the air. After the
police officers finished handcuffing the two men and placing them in separate squad
cars, the driver admitted through an interpreter that he was in the United States
illegally. The officers performed a routine inventory search of the truck and found a
beeper, cell phone, and recharger. In the duffel bag, the officers discovered the title to
the car that Garcia was driving earlier that morning. The title indicated that the car had
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been transferred the previous day to Luis Jesus Navarrete-Barron (defendant). The
police then arrested Navarrete-Barron.
Prior to the morning of June 11, 1994, Navarrete-Barron had participated in
numerous drug transactions with several other persons. Navarrete-Barron's drug
activity began in 1993. Luis Martinez testified about three instances where he saw his
cousin, Navarrete-Barron, in Omaha, Nebraska with Jesus Martinez (Luis's father). On
each of these occasions, Jesus delivered large quantities of either marijuana or cocaine
(powder) to Luis Martinez. The evidence also shows that Jesus delivered portions of
that same marijuana and cocaine to Navarrete-Barron. In addition, Dianne Cervantes
testified about several trips she made delivering cannisters of money from Isauro
Amaya in Omaha to Navarrete-Barron in Denver. Isauro Amaya, Fernando Ibarra (the
driver of the pickup truck), Luis Martinez, and Navarette-Barron were all purchasing
drugs from Mexico through Jesus Martinez.
Garcia testified that when the police arrested him, he was on his third trip to
Omaha with the defendant. Navarrete-Barron arranged all three trips. Garcia rode to
Omaha in Navarrete-Barron's car during the first trip, he traveled by plane during the
second trip after Navarrete-Barron paid for Garcia's ticket, and on the third trip he rode
with Navarrete-Barron and Ibarra in a truck owned by Amaya. During this third trip
on June 10, 1994, Navarrete-Barron bought the car that Garcia was driving when
Garcia was arrested. Later that day, Navarrete-Barron and Garcia met at Amaya's
house. Ibarra was also at Amaya's house. While there, Garcia saw Navarrete-Barron
and Amaya handling crack cocaine and putting it in smaller bags. He also saw them
counting sums of money in excess of $20,000. Navarrete-Barron and Garcia left
Amaya's house, spent some time drinking at a local bar, and then returned to the
Sandman motel to a room rented for them by Amaya. Amaya had, in the meantime,
dropped off their suitcases (containing the cocaine base and money) at the motel for
them. Early the next morning, Garcia left in Navarrete-Barron's car and was later
arrested. When Ibarra arrived at the motel to pick up Navarrete-Barron the next
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morning, Ibarra made a call to Dianne Cervantes before they left. Ibarra told her that
Garcia had taken some money and cocaine. Ibarra and Navarrete-Barron then left in
Ibarra's truck and were arrested soon after.
II. Discussion
A. Denial of Motion to Suppress
Navarrete-Barron contends that the district court erred in denying his motion to
suppress the evidence obtained from the stop of the pickup truck in which he was a
passenger. The district court found that the police officers made a valid investigatory
stop of the truck based on reasonable suspicion that the occupants of the vehicle were
engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 25-31 (1968). Navarrete-
Barron claims that the police officers who stopped the truck actually made an illegal
arrest without probable cause, and thus his motion to suppress should have been
granted. We review the district court's factual findings for clear error and its
determinations of probable cause and reasonable suspicion de novo. See United States
v. Beck, 140 F.3d 1129, 1133 (8th Cir. 1998).
An investigatory, or Terry, stop without a warrant is valid only if police officers
have a reasonable and articulable suspicion that criminal activity may be afoot. See
Terry, 392 U.S. at 25-31. When justifying a particular stop, police officers "must be
able to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion." See id. at 21. A Terry
stop may turn into an arrest if the stop lasts for an unreasonably long time or if officers
use unreasonable force. See Dunaway v. New York, 442 U.S. 200, 212 (1979).
During a Terry stop, officers can check for weapons and may take any additional steps
that are "reasonably necessary to protect their personal safety and to maintain the status
quo during the course of the stop." See United States v. Hensley, 469 U.S. 221, 235
(1985). Officers must, however, employ the least intrusive means of detention and
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investigation, in terms of scope and duration, that are reasonably necessary to achieve
the purpose of the Terry stop. See Florida v. Royer, 460 U.S. 491, 500 (1983). In
deciding whether to conduct a Terry stop, an officer may rely on information provided
by other officers as well as any information known to the team of officers conducting
the investigation. See United States v. Robinson, 119 F.3d 663, 666-667 (8th Cir.
1997).
After reviewing the evidence, we find that the officers made a valid Terry stop
of the truck and later had probable cause to arrest Navarrete-Barron. First, the initial
stop was supported by a reasonable and articulable suspicion of criminal activity.
Earlier that morning, officers had discovered a large amount of cocaine base along with
$37,000 and firearm ammunition. This discovery provided direct and substantial
evidence of Garcia's involvement in drug trafficking activity. Garcia's statements to the
police about a "Luis" back at the motel who had recently purchased the vehicle coupled
with a key to the motel room provided enough evidence to support an inference that
others were engaged in drug trafficking. Police officers later corroborated Garcia's
statements during their surveillance of the motel room. In sum, the officers had a
reasonable and articulable suspicion sufficient to make a valid Terry stop of the truck
in which Navarrete-Barron was a passenger.
In the circumstances of this case, we also find that the officers did not use
unreasonable force when they approached the truck with their weapons drawn. At the
time of the stop, the officers had a reasonable suspicion that the occupants of the truck
had been or were engaged in drug trafficking, which very often is accompanied by
dangerous weapons. In addition, the 9 millimeter ammunition from the earlier stop
constituted a reasonable basis to believe that one of the truck occupants could be
carrying the missing 9 millimeter weapon. Therefore, the officers were justified in
approaching the truck with their weapons drawn because it was reasonably necessary
for their protection.
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The limits of a Terry stop were also not exceeded when the defendant was
handcuffed and placed in a police car while the officers searched the truck. There were
two suspects and only two officers at the scene at the time of the initial stop. In United
States v. Miller, 974 F.2d 953, 957 (8th Cir. 1992), which involved three officers and
six suspects in the area, we agreed that it was reasonable for officers to handcuff two
of the suspects during a Terry stop for suspected drug activity. Several other circuits
also have found that using handcuffs can be a reasonable precaution during a Terry
stop. See, e.g., United States v. Laing, 889 F.2d 281, 285 (D.C. Cir. 1989), cert.
denied, 494 U.S. 1008 (1990) and 494 U.S. 1069 (1990); United States v. Crittendon,
883 F.2d 326, 329 (4th Cir. 1989); United States v. Hastamorir, 881 F.2d 1551, 1557
(11th Cir. 1989); United States v. Glenna, 878 F.2d 967, 971-73 (7th Cir. 1989),
United States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983). In light of the dangerous
nature of the suspected crime of drug trafficking and the good possibility that the driver
or passenger had a weapon, the defendant's confinement with handcuffs in the back of
a police car during the search of the truck was reasonably necessary to maintain the
status quo, protect the officers, and allow them to conduct the search of the truck
immediately and without interference. Furthermore, the detention did not last for an
unreasonably long time before probable cause was established to arrest the defendant
because the inventory search of the truck occurred shortly after the defendant was
safely detained in the police car. Thus, because the officers did not use unreasonable
force and did not hold the defendant for an unreasonably long detention during the
Terry stop, we reject Navarrete-Barron's claim that the stop was an arrest without
probable cause.
We also find that the search of the truck by the officers during the Terry stop
passes constitutional muster. It is well established that once reasonable suspicion is
established, a search of a vehicle's interior is permissible regardless of whether police
officers have removed the occupants of the vehicle. See Michigan v. Long, 463 U.S.
1032, 1052 (1983); United States v. Cummins, 920 F.2d 498 (8th Cir. 1990), cert.
denied, 502 U.S. 962 (1991). Ibarra, the driver of the truck, also admitted shortly after
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the stop that he was in the United States illegally. (See Hearing Tr. on Navarrete-
Barron's Motion to Suppress at 20-22.) At that point, the officers had probable cause
to arrest Ibarra and thus to conduct a routine inventory search of the vehicle he was
driving and its contents. Therefore, even if the officers exceeded the scope of a Terry
search, they had sufficient independent probable cause to conduct the inventory search
of the automobile pursuant to Ibarra's arrest.
In addition, we conclude that any error in regard to evidence found during the
inventory search was harmless because none of the evidence recovered from the truck
was admitted at Navarrete-Barron's trial. The only evidence Navarrete-Barron objects
to is his identification by the officers as one of the people found in the pickup truck.
Even if the inventory search was not valid, however, we have already determined that
the officers had the requisite reasonable and articulable suspicion to stop the truck for
questioning, which includes at a minimum the right to discover the identity of those in
the vehicle. See United States v. Abokhai, 829 F.2d 666, 669 (8th Cir. 1987) ("Briefly
detaining a suspicious individual in order to determine his identity or to maintain the
status quo momentarily while obtaining more information is considered an essential
ingredient of good police work."), cert. denied, 485 U.S. 907 (1988). See also Adams
v. Williams, 407 U.S. 143, 145-46 (1972). Thus, Navarrete-Barron's identity would
have been discovered anyway. Also, Navarrete-Barron himself admitted at trial that
he was with Ibarra when the officers stopped the truck. (Trial Tr. at 337-38.)
Therefore, even if there was error during the search, any effect on Navarrete-Barron at
trial was harmless.
After reviewing the district court's factual findings for clear error and its legal
conclusions de novo, we find that there was no need to suppress any evidence from the
stop of the pickup truck. Thus, we uphold the district court's denial of Navarrete-
Barron's suppression motion.
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B. Sufficiency of Evidence for Count II
Navarrete-Barron contends that there was insufficient evidence to establish that
he was guilty of possession of cocaine base with intent to distribute, and thus his
conviction under Count II for possession with intent to distribute cocaine base should
be overturned. In an appeal from a bench trial, we review the district court's finding
of guilt under a sufficiency of the evidence standard, determining whether there is
substantial evidence to support the guilty verdict. See United States v. O'Malley, 854
F.2d 1085, 1087 (8th Cir. 1988). When reviewing the sufficiency of the evidence to
sustain a conviction, we view the evidence in the light most favorable to the guilty
verdict, "accepting as established all reasonable inferences tending to support the
verdict." See United States v. Lyon, 959 F.2d 701, 705 (8th Cir. 1992).
The government proceeded against Navarrete-Barron on Count II using a
Pinkerton theory of vicarious criminal liability. See Pinkerton v. United States, 328
U.S. 640, 647-48 (1946). We have said that "[u]nder Pinkerton, each member of a
conspiracy may be held criminally liable for any substantive crime committed by a co-
conspirator in the course and furtherance of the conspiracy, even though those members
did not participate in or agree to the specific criminal act." United States v. Golter, 880
F.2d 91, 93 (8th Cir. 1989) (citations omitted).
In order to convict Navarrete-Barron of possession with intent to distribute
cocaine base under 21 U.S.C. § 841, the government must first prove that Garcia
knowingly or intentionally possessed 50 or more grams of cocaine base with intent to
distribute. The government must then prove that Navarrete-Barron and Garcia were
members of a conspiracy at the time of the possession, that the possession of the
cocaine base was in furtherance of the conspiracy, and that Garcia's possession could
have been reasonably foreseen by Navarrete-Barron as a natural outgrowth of the
conspiracy. See Pinkerton, 328 U.S. at 647-48.
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There is little doubt that Garcia knowingly possessed the cocaine base with
intent to distribute. Garcia was present during the packaging of the cocaine base. A
police officer found the cocaine base in Garcia's possession and Garcia offered the
arresting officer $10,000 to release him even before the officer had discovered the
drugs or cash. There is also little doubt that Navarrete-Barron and Garcia were
involved in the conspiracy of which Navarrete-Barron was convicted. In this circuit
only slight evidence connecting a defendant to a conspiracy is necessary to convict that
defendant once an existing conspiracy is otherwise established, and the government
does not have to prove that a defendant knows all the details of the conspiracy. See
United States v. Foote, 898 F.2d 659, 663 (8th Cir.), cert. denied, 498 U.S. 838 (1990)
and 498 U.S. 938 (1990). But cf. Brent E. Newton, The Antiquated "Slight Evidence
Rule" in Federal Conspiracy Cases, 1 J. Appellate Prac. & Process 49, 53 & n.23
(1999) (criticizing the Eighth Circuit's use of the "slight evidence" standard). There is
considerably more than slight evidence, based on the facts set out in Part I of this
opinion, to tie Garcia to the conspiracy to distribute illegal drugs of which Navarrete-
Barron was a full-fledged member.
Finally, there is sufficient evidence showing that the cocaine base found with
Garcia was part of the conspiracy to distribute charged in Count I and was possessed
in furtherance of that conspiracy. Garcia himself saw Navarrete-Barron handling the
cocaine base and money the day before the arrest. Police officers found the cocaine
base in Navarrete-Barron's car. The same people involved in previous cocaine and
marijuana transactions were present during the packaging of the cocaine base found in
Garcia's possession. Thus, it is not difficult to conclude that the cocaine base found in
Garcia's possession was part of the distribution conspiracy charged in Count I,
especially after Navarrete-Barron was seen handling it the night before with the same
people involved in previous drug transactions, and when Navarrete-Barron and Ibarra
left the motel to go look for Garcia after he had left with the money and drugs. For the
same reasons, there is more than sufficient evidence to find that Garcia's possession of
the cocaine base was reasonably foreseeable to Navarrete-Barron. Accordingly, based
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upon all the evidence, we conclude that the district court did not err in finding
Navarrete-Barron guilty of possession of cocaine base with intent to distribute.
C. Sentence
Because we find that there was sufficient evidence to convict Navarrete-Barron
under Count II, we find no error in the base offense level selected (34) nor in the
sentence imposed on the defendant (151 months) under the U.S. Sentencing Guidelines.
Even if we were to reverse Navarrete-Barron's conviction under Count II, the 392
grams of cocaine base handled by Navarrete-Barron and found in his car would still be
part of the sentence imposed under the conviction in Count I as "part of the same
course of conduct or common scheme or plan as the offense of conviction." U.S.
Sentencing Guidelines Manual § 1B1.3(a)(2)(1998). See also United States v. Strange,
102 F.3d 356, 359 (8th Cir. 1996); United States v. Geralds, 158 F.3d 977, 979 (8th
Cir. 1998), cert. denied, 119 S. Ct. 1280 (1999). Thus, Navarrete-Barron's challenge
to his sentence fails.
III. Conclusion
For the reasons stated above, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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