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Using counter-surveillance and no warrant

From PoliceOne columnist Quinlan Publishing

Police arrest suspect without a warrant in proximity to drug buy

(Excerpted from Quinlan's Narcotics Law Bulletin)

Citation: U.S. v. Barrera-Medina, 9th U.S. Circuit Court of Appeals, No. 03-10455 (2005)

The 9th U.S. Circuit has jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Manuel and Hernandez met with Detective Robles to negotiate the price of pseudoephedrine. Officers conducting surveillance thereafter followed Manuel and Hernandez's Lincoln Navigator to an apartment complex and observed them walking into an apartment. Shortly thereafter, the officers witnessed about five Hispanic men walking out of the apartment complex and getting into a Dodge Intrepid and a Chrysler Concorde parked just a couple of cars away.

The next day, Manuel, Hernandez, and Barrera-Medina showed up for the drug buy in the Lincoln Navigator and the same Chrysler Concorde from the day before. As the two vehicles pulled away, the Intrepid followed. Officers followed the three vehicles, turned on their lights and sirens, and pulled them over, with the Dodge Intrepid pulling over first.

Hernandez-Munguia, Perez-Estrada, Timoteo, and Ortiz-Villalobos (the Intrepid Defendants) were all in the Dodge Intrepid when police arrested all of them for their suspected connection to the drug buy. A search of the Dodge Intrepid yielded guns, plastic wrap of the sort that drug dealers used to wrap money used in drug buys, and a day planner that included a business card of the motel where the suspected drug buy occurred.

Further, searches of the Intrepid Defendants' cell phone call records demonstrated that 16 calls had been made to and from the Intrepid Defendants during the four-hour time span of the drug buy.

The Intrepid Defendants - as well as the other conspirators - were convicted for various drug and firearms offenses.

On appeal, the Intrepid Defendants argued that there was not enough evidence to link them to the drug buy when the officers pulled them over. In particular, they argued that the probable cause to pull them over was based solely upon their proximity to the crime and that there was evidence indicating that the Intrepid Defendants were not conducting counter-surveillance -- often individuals involved in drug transactions provided counter-surveillance and security for their accomplices. The Intrepid Defendants reasoned that since the stop was not lawful, all evidence derived from the stop must be suppressed, and they must be acquitted.

DECISION: Affirmed.

The court looked into the circumstances of the warrantless arrest of the Intrepid Defendants and found that the officer arresting them believed they were involved in the drug buy when he pulled the car over. Further, the arresting officer explained that it was common in the drug trade to have associates provide counter-surveillance and security.

In examining the reasoning for the arresting officer's belief, the court found that the officer's belief was based on three facts:

1) The Lincoln Navigator was parked next to the Chrysler Concorde and the Dodge Intrepid, which -- when the Chrysler Concorde showed up with the Lincoln Navigator the next day for the drug buy -- led the police to believe that the men walking to the Chrysler Concorde and Dodge Intrepid the day before the drug buy may be somehow related to the drug buy;

2) the driver of the Dodge Intrepid drove erratically around the area of the drug buy before, during, and after the drug buy in-- this led the officer to believe that the occupants of the Dodge Intrepid may be surveilling the area for the dealers; and

3) the Dodge Intrepid followed the Lincoln Navigator and Chrysler Concorde immediately after the drug buy, which led the officer to believe that the occupants were involved.

With these facts in mind, combined with the officer's reasonable beliefs and his experience and expertise, the court found that there was probable cause.

The Intrepid Defendants' argued that they were often not in view of the other two cars during the drug buy and that they were the first to stop for the police. The court concluded that this argument was unpersuasive. At all times when the Dodge Intrepid was not parked in view, there were no other cars in the areas where the car could have parked in view. Thus, it made sense not to call attention by parking in those lots. Further, they obviously were more likely to stop first for the police, since they were not carrying any drugs themselves.

The court ruled the warrantless arrest and subsequent search was lawful, and that all evidence derived from the initial stop, therefore, was lawful also. In addition, the evidence discovered in the search confirmed that the Intrepid Defendants had participated in the conspiracy.

The convictions were affirmed.

see also: U.S. v. Hoyos, 892 F.2d 1387 (1989).

see also: Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979).

Quinlan's Arrest Law Pop Quiz

Question: An officer responds to a dispatch notice that an armed bank robbery has occurred. The officer heads in the direction of the criminal's probable path and meets up with a civilian following the vehicle. The officer finds out from the civilian that the suspect is heading past the train tracks and out of the officer's jurisdiction. The officer continues to pursue nonetheless. The suspect eventually is apprehended on the highway by the officer.

Is the arrest lawful, even though the officer arrested the suspect out of his jurisdiction?

Answer: Probably.

At least in this case, the court found that the officer was responding to an exigent circumstance, namely an armed robbery. Further, the court found that the officer continued the civilian's hot pursuit, so the arrest was proper as the natural outcome to a hot pursuit within emergency and time-sensitive circumstances.

The fact that the officer met up with the civilian by following nothing more than a hunch was immaterial.

Look for this issue to be analyzed in greater detail in the September issue of Quinlan's Arrest Law Bulletin.

DISCLAIMER: This quiz is intended for informational purposes only and should not be construed as legal advice. The answers to these questions are based on current state and federal case law; however, particular states may be more restrictive of officer conduct. Whenever you are unclear about proper procedure, ask an attorney in your jurisdiction.

About the author

Quinlan Publishing Group in Boston offers critical and timely law enforcement information to its newsletter subscribers through a variety of publications. Summaries of important court cases, legal compliance information, technology updates, grants and funding information, news updates and helpful tips make up the content of these monthly newsletters. The newsletter titles are: Investigative Stops Bulletin; Search & Seizure Law Bulletin; Narcotics Law Bulletin; Police Department Disciplinary Law Bulletin; Police Grievances Law Bulletin; Arrest Law Bulletin; and Law Enforcement Management Bulletin.
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