United States v. Hosvaldo Lopez

482 F.3d 1067, 2007 WL 725641, 2007 U.S. App. LEXIS 5709
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 12, 2007
Docket05-30347
StatusPublished
Cited by268 cases

This text of 482 F.3d 1067 (United States v. Hosvaldo Lopez) 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. Hosvaldo Lopez, 482 F.3d 1067, 2007 WL 725641, 2007 U.S. App. LEXIS 5709 (9th Cir. 2007).

Opinions

Opinion by Judge POLLAK; Concurrence by Judge NOONAN.

OPINION

POLLAK, District Judge.

In February 2005, the District Court of Oregon denied defendant Hosvaldo Lopez’s pretrial motion to suppress evidence found in his car. Lopez subsequently pled guilty to possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a), but reserved the right to appeal the denial of his motion to suppress. He was sentenced to a term of incarceration of 135 months. He now timely appeals from the denial of his pretrial motion to suppress evidence and his resulting conviction. Because we conclude that the police had probable cause to arrest Lopez as an accessory to another crime, and, while in custody, Lopez voluntarily consented to a search of his car, we affirm the District Court’s denial of the motion to suppress and the resulting conviction and sentence.

I.

At a quarter past noon on March 4, 2004, while two law enforcement officers— members of the West Side Interagency Narcotics Team — were interviewing a witness in a narcotics investigation in the front yard of a residence in Hillsboro, Washington County, Oregon, a man drove up, got out of his car and began to approach the group. The witness, however, motioned the man away, and when one of the officers called the man back, the man turned and drew a gun on the officers. According to the officers, the man appeared to try to fire the weapon but then returned to his car — -a green Ford Focus— and sped away.

Based on the two officers’ description of the suspect, an alert was immediately issued for police to look for “an adult, male Hispanic in his 20s, thin build, taller, wearing a white sweater, and armed with a firearm.”1 An accurate description of the [1070]*1070attempted shooter’s getaway car — including its make, model, and license plate number — was also provided.

At approximately a quarter to one in the afternoon — about half an hour after the front-yard encounter — -the Ford Focus was found nearby, in the parking lot of a Fred Meyer store.2 Based on the license plate number, the police secured the name of the registered owner — Roberto Lopez Ga-mez — and his physical description, which included Gamez’s height and weight, from the Department of Motor Vehicles.3

The police staked out the area. About eight hours later, their vigilance was rewarded. Officers observed a white, 1990s Ford Taurus with tinted windows enter the parking lot and park near the Ford Focus. A female passenger, later identified as Alicia Polish, got out of the Ford Taurus, got into the Ford Focus, started it, and drove off, leaving through the west exit of the parking lot and entering the adjoining road. The Ford Taurus also departed; the driver was observed to be a Hispanic male, approximately twenty years old. Although the Ford Taurus left the parking lot through the southeast exit, it then turned onto the road on which the Ford Focus was traveling and proceeded to follow the Ford Focus at a distance of approximately four hundred yards.

Officers stopped both cars, using a “high risk traffic stop” technique involving multiple police cars, officers, and the pointing of firearms. The driver of the Ford Taurus was ordered out of the car at gunpoint, while surrounded by several police cars and officers. He was told to lie on the ground and was placed in handcuffs. Next, he was patted down for weapons; none were found. The police located his wallet and found a driver’s license in the name of Hosvaldo Lopez, the defendant-appellant in this action. Lopez was then detained inside one of the patrol cars. The government alleges, and Lopez does not deny, that, during this process, he twice verbally consented to a search of his car (although the police did not, at that time, conduct such a search). Shortly thereafter, he was asked to accompany police officers to the Hillsboro Police Department.4 Lopez was transported to the [1071]*1071station in the back of a patrol car and, upon arrival, was placed in the custody of detectives. According to police testimony, Lopez was fully cooperative and compliant throughout.

At the station, Lopez was advised, in Spanish, of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and his right to refuse to consent to a search of his Ford Taurus. Following questioning, he was asked to provide written consent to a search of his vehicle, which he did. During their subsequent search, police found a secret compartment behind the back seat of the car, which contained illicit drugs, cash, and a loaded firearm.

It was ultimately determined that the alleged attempted shooter—the suspect sought on March 4, 2004—was Roberto Lopez Gamez, the registered owner of the Ford Focus, and not appellant Hosvaldo Lopez.

II.

Lopez’s pretrial motion to suppress argued that, under the Fourth and Fifth Amendments, his stop, detention, and ensuing custody constituted an illegal seizure and that any statements or other evidence obtained from him or from his vehicle must be excluded as fruits of that illegality, or as evidence derivative therefrom. The District Court denied Lopez’s motion, holding that (a) the officers had the reasonable suspicion required for an investigative Terry stop (see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), and (b), given that Lopez “substantially fit the description of the suspect,” “the arresting officers had probable cause to take defendant into custody.” The District Court also found that, at the police station, Lopez validly waived his Miranda rights and voluntarily consented to the search of his car.

On appeal, Lopez concedes that the police possessed reasonable suspicion to stop his car, but he maintains that the police lacked probable cause to arrest him and that evidence obtained as a result of that arrest must be suppressed. The government maintains that the arrest was supported by probable cause. According to the government, “[i]t was reasonable to believe that the defendant was either the person involved in the earlier attempted shooting of the police officers or that he was an accessory after the fact, in violation of 18 U.S.C. § 3.”5

III.

“In general, we review determinations of motions to suppress de novo.” United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.1994) (citing United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993)). This court reviews de novo whether probable cause to arrest Lopez existed, as the question raises mixed questions of law and fact. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Carranza, 289 F.3d 634, 640 (9th Cir.2002).

“We may affirm a district court’s denial of a motion to suppress on any basis supported in the record.” United States v. Ruiz, 428 F.3d 877, 880 (9th Cir.2005); United States v. Albers, 136 F.3d 670, 672 (9th Cir.1998).

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Cite This Page — Counsel Stack

Bluebook (online)
482 F.3d 1067, 2007 WL 725641, 2007 U.S. App. LEXIS 5709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hosvaldo-lopez-ca9-2007.