OpenJurist

917 F2d 1307 United States v. Peragallo

917 F.2d 1307

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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,
v.
Gustavo Galvez PERAGALLO, Defendant-Appellant.

No. 86-5304.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1990.*
Decided Nov. 8, 1990.

Before WILLIAM A. NORRIS, CYNTHIA HOLCOMB HALL and RYMER, Circuit Judges.

1

MEMORANDUM**

2

On August 18, 1986, Gustavo Galvez Peragallo entered a conditional plea of guilty to possession with intent to distribute cocaine, in violation of 18 U.S.C. Sec. 841(a)(1). The district court sentenced Peragallo to ten (10) years incarceration and a $50 special assessment. Peragallo appeals the district court's denial of his motion to suppress evidence. We affirm.

I.

3

In April 1986, an officer with the Los Angeles Police Department (LAPD) received an anonymous phone call stating that an older Hispanic male, matching the general description of Peragallo, was selling cocaine from a West Covina residence. The officer, who had been involved in a continuing narcotics investigation of other residents of the same address, decided to place the home under extensive surveillance. On May 9, 1986, Peragallo was seen coming from the residence carrying under his arm a white plastic package, partially covered with a jacket. Peragallo placed the package on the front seat next to him and drove away.

4

Suspecting that Peragallo was involved in narcotics trafficking, that the West Covina residence was being used as a "stash" house, and that the package contained narcotics, the surveillance officers followed Peragallo onto the freeway. At approximately one hundred meters from an exit off-ramp, Peragallo's car rapidly slowed down and stopped at the triangle where the slow lane and the exit lane separate. In order to avoid detection of the surveillance, one of the officers continued down the off-ramp while the others proceeded on the freeway. One of the officers who drove past Peragallo stated that he saw Peragallo visually following the first surveillance car that had driven off the freeway.

5

Peragallo then returned to the slow lane of the freeway and drove to another exit, where the officers saw him accelerate rapidly down the off-ramp. Based on the two traffic violations, the sudden stop on the freeway near the exit and speeding down the off-ramp,1 and the suspected package of cocaine inside the car, the officers decided to stop Peragallo's car.

6

As Peragallo waited for a light at a nearby intersection, one of the officers drove his car in front of Peragallo's car, while another positioned his car behind Peragallo. Two officers, with their guns drawn, approached Peragallo's car, identified themselves as police officers and asked him to get out of the car. As one officer patted Peragallo down for weapons, another officer could see in plain view from the outside of the car the package inside the now open white plastic bag on the front seat. From his experience of having seen hundreds of similar packages, the officer concluded the package was a "street-packed" one kilogram package of cocaine. The officer reached inside the car and removed the package. Peragallo was then placed under arrest and handcuffed.

7

Following the seizure of the one kilogram of cocaine from Peragallo's car, officers obtained a search warrant for Peragallo's residence, where they found and seized nearly forty kilograms of cocaine. Peragallo moved to suppress all this evidence as the fruit of an unlawful arrest. The district court denied the motion.

II.

8

The district court concluded that Peragallo was arrested at the time the officers barricaded his car and approached him with guns drawn, and that this arrest was supported by probable cause. The determinations of whether an investigatory stop is a warrantless arrest or a Terry stop, and probable cause, are reviewed de novo. United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988); United States v. Smith, 790 F.2d 789, 791 (9th Cir.1986). The district court's findings of fact, however, are to be accepted unless clearly erroneous.2 United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986). Although we conclude that the district court erred in finding that the officers had probable cause to arrest Peragallo from the outset of the encounter, we hold that the district court properly denied the motion to suppress. See United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1504 n. 1 (9th Cir.1988) (district court's correct legal results may be affirmed on any basis supported by the record).

9

The test for probable cause is whether facts and circumstances within the officer's knowledge are sufficient to warrant a reasonable belief "that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillipo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343, 350 (1979); Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964).

10

We conclude that the police did not have probable cause to arrest Peragallo when they first stopped his vehicle. At this stage of the encounter, the police knew that Henry Penuela, who had been arrested previously for cocaine possession, resided at the same address as Peragallo; Peragallo had purchased Penuela's automobile; LAPD received an anonymous tip indicating an older Hispanic male matching Peragallo's description was selling cocaine from that address; one of Henry Penuela's brothers had been arrested for conspiracy to sell cocaine one week earlier; surveillance officers witnessed Peragallo leave his residence carrying a partially concealed package which resembled a kilogram of cocaine in size and shape; and Peragallo committed two traffic violations when he stopped abruptly on the freeway as he approached an off-ramp and subsequently sped off a later exit ramp. The police could not reasonably arrest Peragallo for possession with intent to distribute cocaine on these facts. Peragallo's carrying a bag containing something the same size and shape as a package of cocaine does not establish the "fair probability" that he possesses contraband or consist of other "particularized evidence of suspicious criminal activity." See Illinois v. Gates, 462 U.S. 213, 246, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1296 (9th Cir.1988).

11

Although the officers lacked probable cause to arrest Peragallo at the moment of the stop, we conclude that they possessed sufficient information to justify a Terry investigative detention. An officer may make a brief investigatory stop of a moving vehicle if, under the totality of the circumstances, the officer has a reasonable or founded suspicion, based upon articulable facts, that the individual stopped may be involved in criminal activity. United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986). The facts as stated above constitute "reasonable suspicion" based on articulable facts.

12

Peragallo contends that he was arrested from the outset of the encounter, at the moment the police blocked in his car and approached him with guns drawn. We disagree and find that the officers' actions were consistent with an investigatory stop. There is no bright-line for determining when an investigatory stop becomes an arrest. United States v. Parr, 843 F.2d 1228, 1231 (9th Cir.1988). As the Supreme Court has recognized, officers may take reasonable measures to neutralize a risk of harm and to determine whether a person is armed. Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The purpose of a Terry stop is "to allow the officer to pursue his investigation without fear of violence." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Therefore, "[t]he use of force during a stop does not convert the stop into an arrest if it occurs under circumstances justifying fears for personal safety." United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir.1987) (no arrest when defendants "forced from their car and made to lie down on wet pavement at gunpoint").3

13

In this case, the blocking of Peragallo's vehicle and the display of weapons do not transform the encounter into an arrest. The blocking of Peragallo's vehicle was a reasonable precaution, and not an excessive intrusion, because the chance that the suspect may flee creates a danger to the public as well as the officers involved. United States v. Hardnett, 804 F.2d 353, 357 (6th Cir.1986), cert. denied, 479 U.S. 1097, 107 S.Ct. 1318, 94 L.Ed.2d 171 (1987); United States v. White, 648 F.2d 29, 38 (D.C.Cir.), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233 (1981). The officers' display of weapons was also reasonable, given the seriousness of the suspected offense, Peragallo's erratic driving, and the fact that Peragallo was suspected of dealing in narcotics, "a pattern of criminal conduct rife with deadly weapons." United States v. Trullo, 809 F.2d 108, 113 (1st Cir.) (display of weapons during stop justified), cert. denied, 482 U.S. 916, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987). Moreover, the restraints placed on Peragallo are not nearly as severe as those in other cases where we nevertheless held no arrests occurred. See United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir.1987) and cases cited supra note 3.

14

Reasonable suspicion "may ripen into probable cause to arrest through the occurrence of facts or incidents after the stop." Greene, 783 F.2d at 1368 (quoting United States v. Medina-Gasca, 739 F.2d 1451, 1453 (9th Cir.1984)). While Peragallo was lawfully stopped, and frisked for weapons, one of the officers saw in plain view what he recognized to be a "street-packed" kilogram of cocaine on the front seat of the car. This gave rise to probable cause to arrest Peragallo for possession with intent to distribute cocaine. Given that the arrest was legal, we affirm the district court's order denying the motion to suppress.

15

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

The officers, in their declarations accompanying the government's opposition to the motion to suppress, stated that these are common tactics used by drug traffickers to detect police surveillance. The district court, crediting the officers' testimony and declarations, agreed that Peragallo was attempting to avoid the police surveillance and pursuit

2

In resolving any factual discrepancies in the case, the district court explicitly credited the officers' testimony: "I believe the testimony and declarations of the officers. I do not believe the testimony and declarations of the defendant." Reporter's Transcript, vol. 2, 66

3

See also United States v. Taylor, 716 F.2d 701, 708-09 (9th Cir.1983) (no arrest when officer, with reason to believe defendant should be considered dangerous, drew gun and ordered defendant, who was seated in a vehicle, to lie face down in a ditch, where he was handcuffed and frisked); United States v. Jacobs, 715 F.2d 1343, 1345-46 (9th Cir.1983) (per curiam) (no arrest when suspect removed from car at gunpoint and ordered to "prone out" on ground); United States v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir.1982) (handcuffing suspect did not convert stop into an arrest), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983)