United States v. Rudolph Garcia

593 F.2d 77

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 23, 1979
• Docket: 78-1337
• Status: Published

Opinions

LAY, Circuit Judge.

Rudolph Garcia appeals from his conviction of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He contends that evidence which was seized at the time of his arrest should have been suppressed because his arrest was without probable cause or, in the alternative, because the search following his arrest was made pursuant to a search warrant which was issued on the basis of an affidavit which contained intentional, or reckless, misstatements which were material to the establishment of probable cause. We affirm.

A preliminary hearing was held on July 19, 1977. At that hearing Agent Gregory Hopps of the Minnesota Bureau of Criminal Apprehension testified that he received a tip from a confidential informant that Barry Lee Brashear, a white male, would be arriving at approximately 11:00 P.M. on July 12, 1977, at the Minneapolis-St. Paul International Airport on a flight from Houston, Texas. A physical desc iption of Brashear was supplied by the informant. The informant also stated that Brashear would possibly be accompanied by another male. No description of this male was given.

Agent Hopps, and other narcotics agents, stationed themselves at the Minneapolis-St. Paul International Airport at the appointed time. At approximately 11:00 P.M., he observed two white males exiting from the blue concourse, where passengers from a Braniff flight from Houston, as well as other flights, had disembarked. One of the males, later identified to be Barry Lee Brashear, fit the description which Hopps had been given. The other male was later identified to be Garcia. Two females approached the men, and one embraced Brash-ear. The four then walked to the first floor of the airport to the Braniff baggage carousel. Hopps testified that another agent observed Brashear pick up a white piece of luggage from the carousel and Garcia pick up a brown piece of baggage. During this time, neither man exhibited any furtive, evasive or suspicious behavior.

After picking up the luggage, the four individuals walked back to the main floor of the terminal, through an unmarked door, and into a Northwest Orient Airlines crew lounge. This lounge is not marked as a restricted area. At that point, Agent Hopps and other surveillance agents arrested Brashear and Garcia, and asked them for identification. The two suitcases which Garcia and Brashear were carrying, as well as shoulder bags which they wore, were seized. Garcia and Brashear were detained until search warrants were obtained and a search of their luggage executed.¹ Three ounces of cocaine were found in Garcia’s suitcase; an address book containing Brash-ear’s name and phone number was found in his shoulder bag.

The affidavit which Hopps submitted in support of the search warrant contained additional information which was not included in his testimony at the preliminary hearing. In his affidavit, Hopps stated that Brashear, whose physical description and criminal record were corroborated prior to the airport surveillance, “would be” accompanied by a male named “Rudy;” that “Brashear and Rudy would be” in possession of cocaine; and that Brashear and Rudy would be met at the airport by a white female named Janice Nelson. According to Hopps’ affidavit, the tip also contained a physical description of Janice Nelson, and this description matched one of the white females who met Garcia and Brashear. Hopps also stated that he heard the other female address the described female as Janice, and that this latter female, later identified as Janice Nelson was the one who embraced Brashear. The affidavit also contains a lengthy recitation of accurate information which the informant had previously given on other occasions.

The government and defense counsel stipulated in the district court that the court should consider the facts set forth in the preliminary hearing as well as the facts set forth in Hopps’ affidavit. In doing so Mr. Peterson, counsel for the defendant, stated to the court:

Well, I guess the Court could assume that if Agent Hopps’ were called to testify he probably would parrot his affidavit, but his testimony at the preliminary hearing, in some areas, is inconsistent with the facts which have been set forth in his affidavit.

Garcia now contends on appeal (1) that the officer did not have sufficient facts to constitute probable cause for Garcia’s arrest; and alternatively, (2) that the affidavit in support of the warrant contained intentional, or at least reckless, misrepresentations which were material to the establishment of probable cause. We reject both arguments.

The information given to Agent Hopps by the reliable informant was sufficiently verified by Hopps and was further corroborated by the actions of Brashear and Garcia. Under the circumstances we conclude, as did the trial court, that the officers possessed probable cause to justify the arrest. Cf. United States v. Buckhanon, 505 F.2d 1079 (8th Cir. 1974).

It is true that the testimony of the officers at the preliminary hearing does not go into detail as to the underlying facts leading to the arrest.² However, the affidavit amplifies those facts. This in itself does not prove, as the defense assumes, that the additional facts within the affidavit were reckless misrepresentations. The defendant stipulated that Agent Hopps would testify that the facts within the affidavit were the facts upon which he acted to make the arrest. If this is so, it remained incumbent on the defendant to prove that these facts were misrepresented. In discussing a defendant’s burden in a similar situation the Court’s observations in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) are appropriate here:

There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.

Id. at 2685.

Clearly, Garcia has the burden to establish the falsehood of the affidavit. He has not done so on the present record.

The judgment of conviction is affirmed.

1 . During oral argument, counsel for the Government stated that the arrest was made at approximately 11:00 P.M., and the search warrant was obtained four hours later.

2 . The objection by the Government to questions concerning the arrest and search were properly sustained by the magistrate at the preliminary hearing. Rule 5.1(a), Fed.R. Crim.P., which governs the conduct of the preliminary hearing, states that objections to unlawful searches are not relevant at the preliminary hearing.