927 F. 2d 611 - United States v. Lovio-Martinez

MEMORANDUM*

Juan Diego Lovio-Martinez entered a conditional guilty plea to possessing marijuana with intention to distribute, reserving his right to appeal denial of his motion to suppress. He argues that the arresting officers lacked probable cause to arrest and that the marijuana was tainted because it was seized as a result of the illegal arrest. We conclude there was probable cause to arrest and affirm denial of the motion.

* On July 2, 1989, an Arizona police officer saw an apparently disabled car parked off the road, with two men standing in front of it. When the officer turned his squad car around to approach the car, the two men ran off into the trees. After he approached the car and saw bundles inside it, he radioed a description of the two men and set off after them.

Border Patrol Agent Fresquez arrived at the scene and looked inside the car. He observed bundles he thought contained marijuana. Photographs submitted during the suppression hearing show four oblong bales of compressed dried plant material wrapped in transparent plastic, secured with masking tape. The back seat had been removed, and the area was filled with the bundles. Agent Fresquez looked at the footprints around the car and noted they were made by one person wearing tennis shoes and one wearing boots. Agent Fresquez began searching for the two men while monitoring the transmissions of the helicopter that was tracking them. Approximately half an hour after the men fled, Agent Fresquez saw Lovio-Martinez and his codefendant1 about a mile from the car. Fresquez testified both men wore plaid shirts, one wearing tennis shoes and one wearing boots. He approached the two men and asked them what they were doing. They told him they were just out walking. Agent Fresquez searched and handcuffed the two men and placed them in his patrol car. The police officer later identified them as the two men he observed fleeing from the car. When the car was searched, the officers discovered the bundles in the back seat and the trunk contained approximately 411 pounds of marijuana.

Lovio-Martinez was indicted for knowingly and intentionally possessing more than 100 kilograms of marijuana with intent to distribute. He entered a conditional guilty plea, and now appeals denial of his motion to suppress the marijuana seized from the car.

Whether there was probable cause to arrest is a legal question we review de novo. United States v. Del Vizo, 918 F.2d 821, 826 n. 6 (9th Cir.1990); United States v. Ricardo D., 912 F.2d 337, 342 (9th Cir.1990).

Lovio-Martinez claims the marijuana was seized as the result of an illegal arrest because the arresting officer lacked probable cause. Because the arrest was illegal, he argues, the evidence seized in connection with the arrest must be suppressed. This argument has no merit.

An arrest must be supported by probable cause. Brinegar v. United States, 338 U.S. 160 (1949). "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, 918 F.2d at 825 (quoting United States v. Delgadillo-Valasquez, 856 F.2d 1292, 1296 (9th Cir.1988)). Evidence seized as the result of an illegal arrest is subject to the Fourth Amendment exclusionary rule and hence is inadmissible at trial. Ricardo D., 912 F.2d at 342 (citing Wong Sun v. United States, 371 U.S. 471 (1963)).

At the time that Agent Fresquez took Lovio-Martinez into custody, he had probable cause to believe the car contained marijuana, based on his observation of the bundles of dried plant material. He was also aware of the following facts: (1) two men dressed in plaid shirts, one shirt darker than the other, had been seen fleeing from a car; (2) the footprints leaving the car showed that one man was wearing tennis shoes and the other boots; (3) a helicopter had been tracking the two men as they emerged from the brush towards Agent Fresquez's car; (4) the two men Agent Fresquez saw emerging from the desert wore plaid shirts, one darker than the other; (5) one of the men wore tennis shoes, the other wore boots; and (6) the two men appeared within one mile and half an hour of the disappearance of two men seen fleeing from the marijuana-laden car. Given his knowledge of these facts, Agent Fresquez had sufficient trustworthy information that warranted his belief the two men he arrested had committed a crime. Since there was probable cause for the arrest, there is no merit to Lovio-Martinez's contention the marijuana seized from the car should have been suppressed.

AFFIRMED.