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927 F2d 611 United States v. Bazua-Aviles

927 F.2d 611

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Guillermo Ernesto BAZUA-AVILES and Jesus Maria
Bonillas-Santamaria, Defendants-Appellants.

Nos. 90-10141, 90-10169.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 18, 1991.
Decided Feb. 28, 1991.

Appeal from the United States District Court for the District of Arizona; CR-88-0226-ACM, Alfredo C. Marquez, District Judge, Presiding.

D.Ariz.

AFFIRMED.

Before SCHROEDER, PREGERSON and THOMAS G. NELSON, Circuit Judges.

1

MEMORANDUM*

2

Appellants Guillermo Bazua-Aviles and Jesus Bonillas-Santamaria were convicted of various drug trafficking and weapons possession counts. Each was sentenced to 20 years in prison. In this consolidated appeal, Bazua and Bonillas challenge their convictions. We affirm.

FACTS

3

DEA agents received tips from two separate informants that a residence in Tucson was being used as a "stash house" to process and distribute marijuana. Agents began surveillance of the residence in May 1988 and observed what they considered to be suspicious behavior. Approximately two months later, another tip stated that a drug deal was imminent and that individuals had just entered the suspected stash house carrying a paper bag. DEA surveillance was reestablished. Agents saw one individual leave the house carrying a paper bag, place the bag in a vehicle, and then reenter the house. Shortly after, Bazua and Bonillas left the house, entered the vehicle and drove off.

4

DEA agents radioed ahead to border patrol agents, telling them to stop and search the vehicle. When the border patrol agents signaled the vehicle to stop, the driver, Bazua, began speaking on a mobile telephone before pulling over. Agents also testified that they saw Bonillas lean forward as they approached the vehicle. A pat-down search revealed a loaded .45 caliber semi-automatic pistol concealed in Bazua's waistband. Agents then searched the car and found a semi-automatic pistol under the seat on Bonillas' side and a paper bag containing a small amount of marijuana in the console of the vehicle.

5

Shortly after the appellants' arrest, DEA agents entered and secured the suspected stash house. A search warrant was then obtained and executed. Agents found over 1,000 pounds of marijuana, processing equipment, and numerous weapons and ammunition, including a loaded automatic rifle, inside the house.

6

Bazua and Bonillas were each convicted by a jury of possession of marijuana with intent to distribute; conspiracy to possess with intent to distribute; and two counts of using and carrying firearms during the commission of a drug trafficking offense. Each was sentenced to 20 years in prison under the Federal Sentencing Guidelines.

DISCUSSION

7

Appellants' primary contention is that the district court erred in declining to suppress the evidence obtained from the stop of Bazua's vehicle. We hold that probable cause existed to stop and search the vehicle and we therefore affirm.

8

In order to stop and search a moving vehicle, law enforcement officers must have probable cause to believe that the vehicle contains contraband or other evidence of illegal activity. Chambers v. Maroney, 399 U.S. 42 (1969). Probable cause arises "when police officers have facts and circumstances within their knowledge sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime." United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir.1985). To determine that probable cause exists, the reviewing court must conclude that criminal activity is "probably shown" by the relevant facts and circumstances. United States v. Traylor, 656 F.2d 1326, 1330 (9th Cir.1981). Less stringent requirements are applied to vehicle searches than to searches of houses or offices, because automobiles involve a lesser expectation of privacy. See, e.g., California v. Carney, 471 U.S. 386, 390-92 (1985).

9

Here, the totality of the circumstances created probable cause to justify the stop and search of Bazua's vehicle. First, agents had received two separate tips describing the residence from which the vehicle left as a stash house. One tip came from an informant who had actually been inside the residence and who thus had firsthand knowledge; the second tip came from a citizen informant who personally met with police. These tips were sufficiently reliable to contribute to a finding of probable cause, particularly since they were corroborated by each other and by subsequent police investigation. See Illinois v. Gates, 462 U.S. 213, 233-34, 243-44 (1983). In addition, agents observed the behavior of those associated with the house and concluded that it fit the pattern of activity associated with drug trafficking. Numerous individuals were seen entering and leaving the house; the windows of the house were sealed shut with opaque material unlike normal curtains; vehicles leaving the house engaged in evasive driving. We have held that such behavior fits the pattern of activity of certain drug traffickers and is properly considered in assessing probable cause. See, e.g., United States v. Del Vizo, 918 F.2d 821, 826-27 (9th Cir.1990); United States v. Espinosa, 827 F.2d 604, 610 (9th Cir.1987), cert. denied, 485 U.S. 968 (1988). Finally, appellants' unusual behavior before driving away, such as Bonillas' blessing himself before entering the car, supported the reasonable inference that the appellants were about to consummate a drug sale.

10

Because the record contains probable cause to believe that Bazua's vehicle contained contraband and that the appellants were about to engage in a drug transaction, the stop and search of the vehicle was constitutionally permissible. Accordingly, the district court did not err in denying appellants' motion to suppress the evidence found as a result of the stop.

11

In a related argument, appellants contend that the district court erred in refusing to suppress evidence found at the stash house. We reject this contention as well. The circumstances we have described above, in conjunction with the weapons and marijuana found in Bazua's vehicle, created probable cause to search the suspected stash house. U.S. v. Tate, 795 F.2d 1487, 1491 n. 6 (9th Cir.1986) (anonymous tip, corroborated by police observations and location of residence created probable cause). Nor did the district court err in concluding that exigent circumstances justified the warrantless entry and securing of the stash house. It was reasonable for officers to believe that Bazua had warned the occupants of the house that the drug deal had gone awry and that therefore evidence in the house would be removed or destroyed shortly, that other suspects would flee, or that agents might be met with a violent response. United States v. Hicks, 752 F.2d 379, 384 (9th Cir.1985); United States v. Robertson, 606 F.2d 853, 859 (9th Cir.1979).

12

Appellants also contend that the district court erred in refusing to grant their motions of acquittal on firearms charges. Count 4 of the indictment charged Bonillas with possession of the pistol found beneath the passenger seat of the vehicle; Count 5 charged Bazua and Bonillas with possession of an automatic rifle found in the stash house. Appellants claim that there was insufficient evidence to establish that they in fact possessed or used those firearms. We disagree.

13

In evaluating the appropriateness of the denial of a motion for acquittal, we consider whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt, viewing the matter in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).

14

Here, there was sufficient evidence to support the jury's finding that Bonillas possessed the pistol. The pistol was found beneath the car seat where Bonillas was riding; when agents signaled the car to pull over, they saw Bonillas lean forward. In addition, a co-defendant testified that he had seen Bonillas in possession of "a small black gun" similar in appearance to the pistol found in the car. The jury could also reasonably infer that the pistol was to be used to facilitate the drug deal; the pistol was within easy reach of Bonillas as the vehicle drove away. United States v. Mason, 658 F.2d 1263, 1270-71 (9th Cir.1981) (holstered weapon on car seat, pistol on floor were used to facilitate bank robbery even though never displayed or brandished).

15

The record also contains sufficient evidence to support the jury's finding that the appellants possessed the automatic rifle found at the stash house. We have held that a conviction for possession of a weapon during the commission of a drug offense under 18 U.S.C. Sec. 924(c)(1) may be pursued under a conspiracy theory. United States v. Johnson, 886 F.2d 1120, 1123 (9th Cir.1989), cert. denied, 110 S.Ct. 1830 (1990). In Johnson, the defendant was convicted of conspiracy after a crack house was raided. No direct evidence was presented showing that Johnson possessed weapons found at the crack house, or that she even knew of the weapons' existence. However, the court held that she could be convicted of firearms possession under the Pinkerton rule. 886 F.2d at 1123; see Pinkerton v. United States, 328 U.S. 640 (1946).

16

Here, the appellants were convicted of conspiracy to possess with intent to distribute marijuana. The automatic rifle was found at the stash house which was the center of the conspiracy and over which both defendants had control. Appellants were properly convicted of possessing the rifle under a Pinkerton theory as a crime committed during the conspiracy. We affirm their convictions under 18 U.S.C. Sec. 924(c)(1).

17

The remainder of the appellants' contentions are without merit. We affirm the appellants' convictions on all grounds.

18

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