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921 F2d 281 United States v. Gonzales

921 F.2d 281

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 87-1127.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 8, 1990.*
Decided Dec. 20, 1990.

Before GOODWIN, Chief Judge, and SCHROEDER and BRUNETTI, Circuit Judges.

1

MEMORANDUM**

2

Luis Gonzales appeals his conviction, following a jury trial, for one count of conspiracy to distribute and one count of possession with intent to distribute heroin in violation of 21 U.S.C. Secs. 846 and 841(a)(1). Gonzales contends that the district court erroneously denied his motion to suppress evidence because his detention by a Drug Enforcement Agency (DEA) agent was an arrest based on less than probable cause. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

I. Facts

3

Gonzales's arrest on November 26, 1986 was the culmination of an undercover investigation in which a confidential informant, Patrick, acted as a contact between DEA agents and Gonzales's codefendants. On the day Gonzales was arrested, agents had arranged to purchase eight ounces of heroin from Gonzales's codefendants. Patrick told the agents that the supplier would wait at a Denny's restaurant while the deal was consummated. Before the sale, Special Agent Mendosa was briefed and dispatched to the Denny's to locate and arrest the supplier. Patrick had described the supplier as a Mexican male of about 40 wearing grey pants. Patrick also described the distinctive car in which the supplier had arrived at the restaurant.

4

Mendosa went to the restaurant and immediately noticed Gonzales, who matched the description. Mendosa checked the vicinity for other persons meeting the same description and found none. He also checked the parking lot and found the white Cadillac the informant had described. Mendosa observed Gonzales, who remained in or near an outdoor phone booth, for about 40 minutes, and called DEA headquarters to confirm the description he had received before finally approaching the suspect.

5

Mendosa approached Gonzales in a convenience store with his gun drawn. He identified himself, took from Gonzales a brown paper sack, conducted a pat-down search, and then asked him his name. When Gonzales said he spoke no English, Mendosa asked in Spanish for identification. After Gonzales replied that he had none, Mendosa took from Gonzales's pants pockets two wallets he had felt during the pat-down search and a set of keys. One of the wallets belonged to Gonzales's codefendant, who Mendosa knew had just been arrested in San Francisco. The keys fit the car Patrick had described.

II. Probable Cause

6

We review de novo the district court's determination of probable cause. United States v. Del Vizo, No. 89-50141, slip op. 13729, 13739, n. 6 (9th Cir. Nov. 8, 1990) (citing United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1295 (9th Cir.1988)). "Probable cause exists when the police know 'reasonably trustworthy information sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense' " Del Vizo, No. 89-50141, slip op. at 13739 (quoting Delgadillo-Velasquez, 856 F.2d at 1296). "When there has been communication among agents, probable cause can rest upon the investigating agents' 'collective knowledge.' " Del Vizo, No. 89-50141, slip op. at 13739 (quoting United States v. Bernard, 623 F.2d 551, 560-61 (9th Cir.1979)).

7

We conclude that Mendosa had probable cause to make an arrest when he approached Gonzales. Mendosa knew that a drug transaction was in progress in San Francisco while the supplier waited at Denny's. Gonzales matched the description Mendosa had been given, and he appeared to be waiting. The unusual car Mendosa had been told to look for was parked in the Denny's lot. These facts were enough to lead a reasonable person to believe that Gonzales was the supplier. We hold that Mendosa had probable cause to arrest Gonzales. See Del Vizo, No. 89-50141, slip op. at 13743.

III. Arrest

8

Because we conclude that Mendosa had probable cause to arrest Gonzales before their initial encounter, we need not consider whether Gonzales's initial detention amounted to an arrest or an investigatory stop. The search was lawful in either case.

9

AFFIRMED.

**

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

*

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