United States v. Aispuro-Aristegui

FILED
United States Court of Appeals
Tenth Circuit
December 23, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-2017
v. (D. New Mexico)
JORGE ERALDO AISPURO- (D.C. No. 1:10-CR-01006-JEC-2)
ARISTEGUI,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ and HOLMES, Circuit Judges, and EAGAN, ** District Judge.
Defendant Jorge Eraldo Aispuro-Aristegui pleaded guilty in the United
States District Court for the District of New Mexico to possession of heroin with
intent to distribute and conspiracy to commit the offense. See 21 U.S.C.
§§ 841(b)(1)(B), 846. His plea reserved his right to appeal the district court’s
denial of his motion to suppress. Defendant filed a timely appeal and argues that
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
Honorable Claire V. Eagan, Chief Judge, United States District Court,
Northern District of Oklahoma, sitting by designation.
there was not probable cause for his arrest. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. BACKGROUND
We recite the “evidence in the light most favorable to the district court’s
ruling.” United States v. Cortez-Galaviz, 495 F.3d 1203, 1205 (10th Cir. 2007).
On March 22, 2010, Agent Jarrell Perry 1 of the Drug Enforcement Administration
(DEA) was at the Albuquerque bus station watching passengers exit a bus en
route from El Paso to Denver. He saw a man, later identified as Oscar Raul
Villanueva, walk through the bus station carrying only a small black satchel and
not stopping to get checked luggage. Mr. Villanueva’s shoes had a bulge at the
top, which led Agent Perry to believe that the shoes may contain illegal drugs.
He caught up to Mr. Villanueva, showed his badge, and requested permission to
ask some questions. After a brief conversation in Spanish, Mr. Villanueva
consented to a search of his shoes. Agent Perry discovered what appeared to be a
tape-wrapped bundle of about a kilogram of heroin. He knew that a kilogram of
pure heroin could sell for more than $50,000, and as much as triple that if diluted
with additives. Based on his training and experience, including experience at the
1
Although we must view Agent Perry’s testimony at the suppression
hearing in the light most favorable to the government (indeed, the district court
explicitly found that his testimony was credible), we have previously raised
serious questions about his veracity. See United States v. Rangel, 519 F.3d 1258(10th Cir. 2008). It was disappointing to read in the record of this case that over
two years later the matter was still under investigation.
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same bus station with passengers who had concealed heroin in their shoes, he
concluded that the bundle was “definitely a distributable amount” that was to be
delivered to another person. R., Vol. 3 at 18. As Agent Perry reached for his
handcuffs, Mr. Villanueva attempted to run, but he was quickly caught and
restrained.
An off-duty Sandoval County sheriff’s sergeant, Rudy Villarreal, identified
himself and offered to assist. He read Mr. Villanueva his Miranda rights in
Spanish, and Mr. Villanueva agreed to cooperate. Mr. Villanueva told the
officers that he would receive a direct-connect phone call from the person who
was supposed to pick him up, that he was to deliver the shoes (which he knew
contained drugs) to that person, that he would receive $1,000 for doing so, and
that he would then promptly leave town. He did not, however, provide a
description, name, or address of the person who was to pick him up.
After making these statements, Mr. Villanueva showed Agent Perry a black
cell phone that he was carrying. Agent Perry saw that there had been a recently
missed direct-connect phone call, and Mr. Villanueva confirmed that it was from
the number of the person who was supposed to pick him up. Mr. Villanueva
agreed to call the number and let the person know that he was at the bus station
waiting to be picked up. By this time, another DEA agent, Kevin Small, had
arrived on the scene. Mr. Villanueva made the call and told the agents that the
person on the other end of the line had said that he would be coming in a few
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minutes, but Mr. Villanueva did not describe what the person’s vehicle would
look like. Mr. Villanueva was told to approach the vehicle but not enter it.
Within a few minutes a Chevy Malibu drove up and parked directly behind
Agent Small’s vehicle near the bus station. It was the only vehicle that had
arrived, and Mr. Villanueva was the only passenger standing outside the bus
station. Agent Small observed Defendant make a gesture in Mr. Villanueva’s
direction, and Mr. Villanueva indicated to Sergeant Villarreal that the driver was
the person who was going to pick him up. Mr. Villanueva, whose handcuffs were
hidden by a jacket, approached the vehicle and spoke with the driver (Defendant)
through the passenger-side window. Agent Perry could not hear what was said
but observed Mr. Villanueva turn and look at Sergeant Villarreal and then glance
toward where he was standing inside the bus station. Next Mr. Villanueva opened
the passenger-side door and began to sit in the Malibu, whose engine was still
running. Agents Perry and Small immediately approached the driver’s side of the
Malibu with their guns drawn, removed Defendant from the vehicle, and arrested
him. Defendant made no attempt to flee. Agents Perry and Small drove
Mr. Villanueva and Defendant to the DEA office in Albuquerque, where
Defendant waived his Miranda rights and answered some questions.
After Defendant was indicted, he moved to suppress all evidence seized and
statements made as a result of his arrest. The motion was denied, and he entered
into a plea agreement permitting him to appeal the denial of the suppression
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motion. He now appeals, contending that his arrest was not supported by
probable cause.
II. DISCUSSION
Defendant argues that his arrest violated the Fourth Amendment, and
therefore his postarrest statements must be suppressed as fruit of the poisonous
tree. See Wong Sun v. United States, 371 U.S. 471, 487–88 (1963). Because we
hold that Defendant’s arrest was lawful, we need not address whether his
postarrest statements were fruit of the arrest.
In reviewing the denial of Defendant’s motion to suppress, “we . . . accept
the district court’s factual findings unless clearly erroneous” and “apply de novo
review to the district court’s determination of reasonableness under the Fourth
Amendment.” United States v. Turner, 553 F.3d 1337, 1344 (10th Cir. 2009).
The Constitution requires that arrests by law enforcement officers be supported by
probable cause. See U.S. Const. amend. IV; United States v. Vazquez-Pulido, 155
F.3d 1213, 1216 (10th Cir. 1998). “Probable cause to arrest exists only when the
facts and circumstances within the officers’ knowledge, and of which they have
reasonably trustworthy information, are sufficient in themselves to warrant a man
of reasonable caution in the belief that an offense has been or is being
committed.” Cortez v. McCauley, 478 F.3d 1108, 1116 (10th Cir. 2007) (en banc)
(internal quotation marks omitted).
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Defendant does not challenge the district court’s factual findings. Rather,
he argues that there was no probable cause because the agents (1) knew only that
Defendant came to the bus station to give Mr. Villanueva a ride—a completely
innocent and legal activity, and (2) had no reason to trust Mr. Villanueva and
therefore had no reliable information linking him with Defendant in illicit
activity. We are not persuaded.
The central issue is whether the officers could reasonably believe
Mr. Villanueva’s statement that he was to be paid for delivering his shoes to the
person picking him up. If that statement was true, then the Malibu driver was not
merely one who happened to have associated with a criminal. See United States
v. Hansen, 652 F.2d 1374, 1388 (10th Cir. 1981) (“[A]ssociation with known or
suspected criminals is not enough in itself to establish probable cause.”).
To be sure, the officers had no knowledge whether Mr. Villanueva was
ordinarily a trustworthy source of information. But this was no mere bald
accusation that the Malibu driver was a drug dealer. Mr. Villanueva’s account
was in large part corroborated. See United States v. Quezada-Enriquez, 567 F.3d
1228, 1233 (10th Cir. 2009) (“When there is sufficient independent corroboration
of an informant’s information, there is no need to establish the veracity of the
informant.” (brackets and internal quotation marks omitted)). He was
transporting a very valuable quantity of heroin in his shoes. His lack of luggage
suggested a brief visit. His description of how he would be met was confirmed by
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Agent Perry’s observation of a missed direct-connect call on Mr. Villanueva’s
phone and the arrival of the Malibu in response to Mr. Villanueva’s call to that
number. And the scenario described by Mr. Villanueva was fully consistent with
Agent Perry’s training and experience with similar individuals found carrying
drugs in their shoes at that bus depot. See Ornelas v. United States, 517 U.S. 690,
700 (1996) (“[A] police officer may draw inferences based on his own experience
in deciding whether probable cause exists.”); United States v. Wicks, 995 F.2d
964, 972–73 (10th Cir. 1993) (similar). Indeed, the circumstances may have
sufficed to establish probable cause to believe that the Malibu driver was
Mr. Villanueva’s partner in crime even without considering Mr. Villanueva’s
statements. Thus, the arresting officers could reasonably rely on
Mr. Villanueva’s statements.
“Although [Defendant’s] actions could theoretically have been innocent, we
believe a prudent, cautious and trained police officer more likely would have
construed those actions as indicating [that Defendant] was [involved in the
crime].” United States v. Sparks, 291 F.3d 683, 688 (10th Cir. 2002); see United
States v. Valencia-Amezcua, 278 F.3d 901, 906 (9th Cir. 2002) (“In drug
investigations, the court may consider the experience and expertise of the officers
involved. This experience and expertise may lead a trained narcotics officer to
perceive meaning from conduct which would otherwise seem innocent to the
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untrained observer.” (internal quotation marks omitted)). Taken as a whole, the
information available to the agents gave them probable cause to arrest Defendant.
III. CONCLUSION
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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