United States v. Hector Hernan Hoyos

868 F.2d 1131, 1989 WL 17686
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 6, 1989
Docket87-5060
StatusPublished
Cited by12 cases

This text of 868 F.2d 1131 (United States v. Hector Hernan Hoyos) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hector Hernan Hoyos, 868 F.2d 1131, 1989 WL 17686 (9th Cir. 1989).

Opinions

[1133]*1133ALARCON, Circuit Judge:

Hector Hernán Hoyos (Hoyos) appeals from the judgment of conviction for conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1982). After the denial of his suppression motions, Hoyos entered a plea of guilty conditioned upon his right to appeal the adverse rulings. Subsequently, he filed a motion to withdraw his guilty plea. This motion was also denied.

Hoyos seeks reversal on the following grounds:

(1) He was arrested without probable cause.
(2) The protective sweep of his residence was an unreasonable search.
(3) The district court erred in concluding that probable cause supported the issuance of a search warrant.
(4) The district court abused its discretion in denying his motion to withdraw his guilty plea.

We affirm because we have concluded that each of these contentions is without merit. We address each issue and the facts pertinent thereto under separate headings.

I.

EXISTENCE OF PROBABLE CAUSE TO ARREST HOYOS

On September 12, 1986, Los Angeles County Deputy Sheriff Thomas Mulligan,1 received an anonymous telephone call that informed him that persons living at 356 Eagle Nest, Diamond Bar, California, were dealing in narcotics. The residents did not appear to be employed. Periodically, strangers in new cars would arrive at the residence and stay for short periods of time. Deputy Mulligan was also informed that the Glendale Police Department was at that location approximately five months earlier.

Deputy Mulligan contacted a narcotics investigator at the Glendale Police Department. He was informed that the Glendale Police Department had received information that 356 Eagle Nest was a safe house for storing large amounts of cocaine. The Glendale investigators abandoned their investigation after observing that the Eagle Nest house appeared to be empty and unused.

On the same date, Deputy Mulligan contacted United States Customs, Special Agent Ronald L. Ingleby2 and advised him of the information he had obtained concerning the Eagle Nest location. On September 19, 1986, Special Agent Ingleby observed two men and a woman remove one dozen full, heavy, gray plastic bags from a silver colored Buick automobile and take them into the residence at 356 Eagle Nest.

On September 22, 1986, Deputy Mulligan was assigned to conduct a surveillance of the residence located at 356 Eagle Nest. At 9:30 a.m., Deputy Mulligan observed Misael Pulgarin leave the residence. Deputy Mulligan followed him to a Denny’s Restaurant in the City of Brea.

En route, Deputy Mulligan observed Pul-garin drive slowly, then rapidly increase his speed, make U-turns in the middle of streets, slow down at green lights, and then accelerate through intersections when the lights turned yellow. Deputy Mulligan noted that Pulgarin intermittently used a cellular telephone in the car. Deputy Mulligan stated in his affidavit that “[b]ased upon more than 50 previous occasions of surveillance of narcotics traffickers, [he] recognized this behavior as counter-surveillance driving; that is, an attempt to detect law enforcement surveillance.”

At the restaurant, Pulgarin met Thomas Cuellar. After 15 to 20 minutes, they left in a blue Mazda 626.

On September 23, Deputy Mulligan resumed surveillance of the Eagle Nest residence at 8:00 a.m. Pulgarin left the resi[1134]*1134dence at 8:45 a.m. in a brown Nissan Sen-tra and drove to Hunny’s Restaurant.

Deputy Mulligan observed Pulgarin stop twice to make telephone calls. Each time Pulgarin dialed two sets of numbers and then received a return telephone call. Deputy Mulligan stated in his affidavit in support of the search warrant that it is a common practice among drug traffickers to communicate through the use of a “beeper.” These telephone calls were referred to by Deputy Mulligan as “beeper calls.” At Hunny’s, Pulgarin met Hoyos, who had arrived there in a white Mazda 626. The two men left the restaurant and drove their respective cars to 15603 Starbuck Avenue in Whittier.

On September 24, 1986, Deputy Mulligan began surveillance of the Starbuck residence. At 2:00 p.m., he observed Hoyos drive away in the white Mazda. Deputy Mulligan observed Hoyos drive to a public telephone. He did not travel a direct route on through streets. Instead, Hoyos used residential streets and drove through a school zone. Deputy Mulligan testified that Hoyos did not use the route that “based upon eleven years of familiarity with the area, would have been most direct.” Deputy Mulligan further testified that, based on his experience as a narcotics investigator Hoyos “did so in an effort to detect surveillance.”

At the public telephone, Deputy Mulligan observed Hoyos make two “beeper” calls. Hoyos then pulled behind a building and stayed for twenty to twenty-five minutes. After that he drove to a Del Taco and made one or two more beeper calls.

At 8:50 a.m., on September 25, 1986, Deputy Mulligan returned to the Eagle Nest residence to resume his surveillance. He observed Pulgarin leave at 9:45 a.m. in a gray Plymouth Reliant.

Sergeant Thomas Stover,3 of the Los An-geles Sheriff's Office followed Pulgarin to the Denny’s Restaurant in Brea. Pulgarin made several telephone calls from public telephones en route. He arrived at Denny’s at approximately 10 a.m. Pulgarin waited in a booth for 15 to 20 minutes at which time Cuellar joined him. They remained in the restaurant for 30 minutes.

Pulgarin and Cuellar left the restaurant together and drove to a Sears store in La Habra. Special Agent Ingleby joined the surveillance at the Sears store.

Sergeant Stover and Special Agent Ingle-by followed Pulgarin and Cuellar to the parking lot at the Denny’s restaurant in La Habra. There, Special Agent Ingleby observed Pulgarin and Cuellar meet Hoyos and Leonardo Amaya. Amaya gave Pulga-rin a key. Pulgarin used it to enter a gold Ford pick-up truck. Pulgarin drove the truck out of the restaurant parking lot. Amaya then entered the passenger side of a brown Nissan Sentra driven by Hoyos. Cuellar entered the gray Plymouth Reliant.

The gray Reliant and the brown Nissan followed the Ford pick-up truck into the parking lot of a nearby Coco’s Restaurant. Amaya got out of the brown Nissan and walked over to the Ford pick-up. Pulgarin returned the key to Amaya. Amaya left Coco’s parking lot in the truck.

Special Agent Ingleby followed Amaya to the parking lot of a shopping center in Diamond Bar. There he observed Pulgarin and Cuellar in the gray Reliant. They pulled in behind Amaya. Both vehicles were then driven to the vicinity of the Eagle Nest Residence.

Early that afternoon, Deputy Mulligan observed the gray Reliant and the gold Ford pick-up at the Eagle Nest residence. The pick-up was parked in the middle of the garage. Three-quarters of the truck was inside the garage. The officers observed five persons in the garage, including Pulga-rin, Amaya, and Cuellar. Shortly thereafter, Amaya drove away in the Ford pickup truck.

Sergeant Stover followed Amaya into a K-Mart parking lot.

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United States v. Hector Hernan Hoyos
868 F.2d 1131 (Ninth Circuit, 1989)

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868 F.2d 1131, 1989 WL 17686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hector-hernan-hoyos-ca9-1989.