876 F2d 897 United States v. Bowen
876 F.2d 897
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
Michael William BOWEN, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 3, 1989.
Decided June 12, 1989.
Before KOELSCH, ALARCON and DAVID R. THOMPSON, Circuit Judges.
We conclude that under the facts and the law, the arrest of William Michael Bowen, the appellant here, was made on probable cause; this determination is dispositive of his appeal for the cocaine incidentally seized from Bowen's gym bag was thus not "fruit of an illegal search."
All the evidence at the hearing on Bowen's motion to suppress was adduced by the prosecution. It was to the effect that during the early morning hours of April 16, 1986 (i.e. about 1:35 a.m.), Special Agent Wong of the Drug Enforcement Administration, stationed at Seattle, received a telephone call from his office that the desk clerk at a hotel near the Sea-Tac International Airport, had phoned with information concerning a possible ongoing narcotics transaction. Wong immediately called the clerk who told him that a Black man named Steve Ward from the Los Angeles area had just checked in; that Ward had been a guest on five prior occasions; that each time he had registered late at night or early in the morning, had requested immediate telephone service and made several phone calls; these were closely followed by a visit from an outsider; and his own departure shortly afterwards. Wong wasted no time, he contacted his partner, Jon Haley, and the two met at the hotel. The clerk stated that Ward had gone to his assigned room (309) and then made two calls--one to Tacoma and the other to the Los Angeles area. On checking Ward's current and last prior registration, they ascertained that while both gave Doty Street in Hawthorne, California as the place of Ward's residence, the building numbers differed. Haley immediately called the Hawthorne Police Department from the hotel and was advised that no such numbers existed and that Doty Street was in a "high crime" area.
While they were talking, Wong saw a shabbily-dressed Black (later identified as Bowen) enter the hotel lobby, go directly to the elevator and take it to the third floor. Haley remained in the lobby but Wong walked to the hotel parking lot to look for Bowen's vehicle. He then saw Bowen coming from the front of the hotel, carrying a gym bag. Haley told Wong that Bowen had not used the elevator and Wong observed a fire escape at the northeast corner of the hotel which appeared to be the sole other means of egress.
Bowen proceeded to drive away in a pickup truck and Wong and Haley followed. Bowen's driving made it extremely difficult for them to avoid detection. He drove slowly and took a circuitous course along deserted streets and through residential districts; next he entered the interstate freeway and traveled in a southerly direction toward Tacoma; upon exiting he resumed his evasive driving in the outskirts of that city. Haley called ahead on his radio transmitter and directed the Tacoma Police Department to intercept the truck.
Upon arriving at the scene, Wong was met by two uniformed officers; they had stopped and "frisked" Bowen, taking from his person a marihuana pipe. The gym bag mentioned earlier was lying on the floor of the truck. Wong thereupon requested permission to make a search but Bowen refused. Wong told Bowen he was under arrest and picked up the bag. (He did not open it. That was done later under a duly issued search warrant).
The basis for Bowen's attack upon the district court's conclusion of probable cause is pretty well exemplified in this passage from his brief, "[t]he agents and the court below relied only upon generalized facts that could apply to the general population. Nothing in Mr. Bowen's behavior was particularized enough to offset generic facts relied upon by the agents. Mr. Bowen's behavior was not criminal in any way. He could have been an innocent hotel guest attempting to visit a friend or relative at the hotel."
If the above bare outline of the evidence was substantially all Wong had to "go on," his argument might be persuasive and require a reversal.
However, because it was not, we must reject his contention.1
Where the issue is one of probable cause, each bit of evidence is not compartmentalized and considered alone; the ultimate factual conclusion requires a due regard of all relevant matters together with permissible inferences to ascertain the likelihood of the particular matter. And in that regard, and as we recently stated in United States v. Hoyos, "[t]he fact that some of these acts, if reviewed separately, might be consistent with innocence is immaterial." 868 F.2d 1131, 1136 (9th Cir.1989).
Wong was an expert law enforcement officer in the field of illicit drug dealing. He was a veteran with 27 years' experience--twelve with the Honolulu Police Department and fifteen with the DEA; the last two in the general area of the Sea-Tac Airport. He stated that cocaine was being brought into this area primarily from Los Angeles frequently by Black couriers; that it was delivered in the Sea-Tac area to members of Black street gangs who had lately emigrated from Los Angeles to Tacoma in considerable numbers; and that the pattern of activity followed by Bowen and Ward in this instance was that essentially the same as that followed by drug couriers and dealers. So here and as noted in United States v. Hicks, "[c]onduct which appears innocent to a lay person may have an entirely different significance to an experienced narcotics officer." 752 F.2d 379, 384 (9th Cir.1985).
In sum and without engaging in a further exposition of the evidence, we are satisfied that the facts afforded Wong probable cause to arrest Bowen.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
In this conclusion, we disregard, as did the experienced district judge, Wong's testimony that Bowen's refusal to permit a search was a factor in making the formal arrest. The evidence was sufficient to show the existence of probable cause to arrest prior to that time