United States v. Vincent Tovar, Jr.

Case: 11-50898 Document: 00512026804 Page: 1 Date Filed: 10/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2012
No. 11-50898
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VINCENT JULIAN TOVAR, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:11-CR-112-1
Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Vincent Julian Tovar, Jr., appeals his convictions for possession with
intent to distribute at least 50 grams of methamphetamine and possession of a
firearm during the commission of a drug-trafficking offense, challenging the
district court’s denial of his motion to suppress evidence. He argues that the
district court clearly erred in finding that both a Texas narcotics agent and the
confidential informant were credible because their testimony concerning the
color of Tovar’s vehicle and the timing of Tovar’s arrest was inconsistent. He
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-50898 Document: 00512026804 Page: 2 Date Filed: 10/19/2012
No. 11-50898
argues that officers lacked probable cause to arrest him because he did not
commit a traffic violation and his action of driving into a convenience store
parking lot was not in itself suspicious.
The district court did not err in denying Tovar’s motion to suppress. If the
evidence is viewed in the light most favorable to the Government, see United
States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001), agents had
probable cause to believe that the vehicle belonged to and was driven by the
informant’s source and that he was transporting methamphetamine. The
confidential informant was known, and her admission against interest that she
had previously purchased methamphetamine from Tovar several times
strengthened her credibility. See United States v. Shugart, 117 F.3d 838, 844
(5th Cir. 1997). Agents corroborated the informant’s tip by monitoring her
telephone conversations arranging the drug transaction with Tovar and by
conducting surveillance of the arranged drug transaction. Although the
informant incorrectly stated that the vehicle was brown, she correctly identified
the vehicle as a dark colored four-door Nissan Altima, and the remaining
information she provided was correct. Further, she was present across the street
from the arranged meeting place, she positively identified the vehicle as
belonging to her source, and she also positively identified the driver as her
source. Tovar’s behavior was suspicious in that he parked in an isolated area of
the parking lot, remained in his car for approximately five minutes, and then
attempted to leave; his actions did not indicate that he had a legitimate reason
for going to the convenience store. Tovar’s arguments concerning the
inconsistencies in the testimony of the informant and Agent Rieger lack merit;
the informant did not testify at the suppression hearing and, therefore, the
district court did not rely on her sentencing hearing testimony in denying the
motion to suppress. Under the totality of the circumstances, the agents’
surveillance that corroborated the informant’s tip was sufficient to establish
probable cause to arrest Tovar and to search his vehicle. See Illinois v. Gates,
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No. 11-50898
462 U.S. 213, 241 (1983); United States v. Fields, 456 F.3d 519, 523 (5th Cir.
2006).
AFFIRMED.
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