United States v. Verganza

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 14, 2025
• Docket: 24-904
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 14 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-904 D.C. No. Plaintiff - Appellee, 6:21-cr-00308-MC-1 v. MEMORANDUM* PEDRO VERGANZA, AKA Pedro Keny Verganza,

Defendant - Appellant.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, Chief District Judge, Presiding

Submitted December 4, 2024** Portland, Oregon

Before: CALLAHAN, NGUYEN, and SUNG, Circuit Judges.

A jury convicted Appellant Pedro Verganza (“Verganza”) of one count of

possession with intent to distribute methamphetamine and one count of possession

with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (b)(1)(C). Prior to trial, Verganza filed a motion to suppress, which the district

court denied after an evidentiary hearing. Verganza now appeals. We presume the

parties are familiar with the underlying facts and discuss them only as required for

context. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Verganza argues that the district court erred in denying his motion to

suppress because (1) the officers lacked probable cause to seize him based on a tip

from a confidential informant (“CI”), and (2) the subsequent search of the vehicle

was unlawful. We review the denial of a motion to suppress de novo and the

underlying factual findings for clear error. United States v. Brobst, 558 F.3d 982,

991 (9th Cir. 2009).

1. When “considering whether an informant’s tip is sufficient to support a

finding of probable cause or reasonable suspicion, a court must employ a ‘totality-

of-the-circumstances analysis’ that takes into consideration the informant's

‘veracity’ or reliability and his ‘basis of knowledge.’” United States v. Rowland,

464 F.3d 899, 907 (9th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 238

(1983)). Courts look to several factors to determine the reliability of an

informant’s tip, including whether: (1) the informant is known or anonymous; (2)

the informant has a proven track record of reliability; (3) the informant discloses

the basis for his knowledge of the tip; and (4) the tip contains predictive

information that is corroborated by police observation. Rowland, 464 F.3d at 907–

2 24-904 08.

Here, the CI (1) was known, (2) had previously provided corroborated

information about local and out-of-state drug dealers, (3) disclosed the basis of his

knowledge to law enforcement, including the name and phone number of his

contact, and (4) provided predictive information. As the district court noted, it is

significant that law enforcement was able to corroborate details of the drug

delivery in real time, as law enforcement could hear the conversation between the

CI and his contact. Additionally, although the CI’s criminal history includes some

crimes of dishonesty, the circumstances of this case, including the CI’s track

record of providing corroborated information, sufficiently bolster his credibility to

overcome these instances of dishonesty. See United States v. Reeves, 210 F.3d

1041, 1045 (9th Cir. 2000).

Under the totality of the circumstances, the information provided by the CI

was reliable based on the Rowland factors. This is sufficient to establish probable

cause to seize Verganza and the vehicle.

2. The district court found that Ms. Fiallos-Pena, the driver of the vehicle,

and Verganza, the passenger, consented to the search of the vehicle after both were

advised of their Miranda rights. The district court also found that “even if

somehow the consent to the search of the vehicle was not voluntary, . . . the search

was valid pursuant to an automobile exception.” We agree as to both findings.

3 24-904 To establish the validity of consent to search, “the government bears the

heavy burden of demonstrating that the consent was freely and voluntarily given.”

United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997). “Among the

factors that tend to show a lack of voluntariness are: (1) the person was in custody;

(2) the officer had his weapon drawn; (3) the officer failed to administer Miranda

warnings; (4) the officer did not inform the person of his right to refuse to consent;

and (5) the person was told that a search warrant could be obtained.” Id. These

factors, however, are not dispositive: “[w]hether consent to search was voluntarily

given or not is ‘to be determined from the totality of all the circumstances.’” Id.

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).

We will “not disturb a district court’s determination that a person’s consent

to search was voluntary unless that determination was clearly erroneous.” United

States v. Chan-Jimenez, 125 F.3d 1324, 1326–27 (9th Cir. 1997) (citing United

States v. Koshnevis, 979 F.2d 691, 694 (9th Cir. 1992)).

Here, although both Fiallos-Pena and Verganza were in custody at the time

they provided consent, no weapons were directed toward them, and they were both

read their Miranda rights. The record is silent as to whether Fiallos-Pena and

Verganza were told they could refuse consent or if they were informed a warrant

could be obtained. Nonetheless, this is sufficient to support a finding of consent as

“[i]t is not necessary to check off all five factors . . ..” United States v. Patayan

4 24-904 Soriano, 361 F.3d 494, 502 (9th Cir. 2004). Additionally, there is no indication

from the record that the consent was in any way coerced, that Fiallos-Pena and

Verganza ever felt pressured to provide consent, or that the officers acted

improperly when seeking consent.

Because Fiallos-Pena and Verganza consented, the search here was lawful,

and the district court did not err in denying the motion to suppress on that basis.

See Katz v. United States, 389 U.S. 347, 358 n.22 (1967) (“A search to which an

individual consents meets Fourth Amendment requirements.”).

We also agree with the district court that even absent consent from Fiallos-

Pena and Verganza, the search was lawful pursuant to the automobile exception. A

“warrantless search of an automobile stopped by police officers who had probable

cause to believe the vehicle contained contraband” does not violate the Fourth

Amendment. United States v. Ross, 456 U.S. 798, 799 (1982) (citing Carroll v.

United States, 267 U.S. 132 (1925)). As discussed above, the officers had

probable cause to seize Verganza and the vehicle based on a reliable tip from a CI,

corroborated by the observations of officers on scene, that the vehicle was

delivering methamphetamine and heroin. Because there was probable cause to

believe the vehicle contained contraband, the officers were permitted to search the

vehicle and containers therein. United States v. Camou, 773 F.3d 932, 941 (9th

Cir. 2014) (“Under the vehicle exception, officers may search a vehicle and any

5 24-904 containers found therein without a warrant, so long as they have probable cause.”).

AFFIRMED.

6 24-904