UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-41164
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ALFREDO DURON,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(M-96-CR-117-4)
August 21, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Juan Alfredo Duron appeals the district court’s denial of his
motion to suppress “any evidence discovered” as a result of his
arrest for drug distribution. Duron contends that this “evidence”
should have been suppressed because the arresting officers lacked
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
probable cause to arrest him. We affirm.
I
On May 22, 1996, Sergeant Antonio Sanchez (“Sanchez”), an
investigator with the Texas Department of Public Safety (Narcotics
Service) (“DPS”), observed Adolfo Moreno-Rios (“Rios”), a suspected
drug trafficker, driving a red Ford pickup truck. Sanchez
testified in district court that he saw Rios meet with a
confidential informant (“CI”) in the parking lot of a Wal-Mart
store.
The CI later told Sergeant Jose Fidencio Guzman (“Guzman”), a
Texas DPS officer who testified at the suppression hearing, that
Rios and the CI had discussed Rios’s supplying seventy pounds of
marijuana to a buyer. The CI had agreed to supply the load
vehicle, a red Ford Taurus, which was to be retrieved from a local
Burger King. After establishing surveillance of the Burger King on
May 23, 1996, an officer watched the red pickup truck drop Duron at
the restaurant. A male, later identified as Jose Angel Rios
(Rios’s son), drove the truck. An officer watched Duron enter the
red Taurus; the surveillance team observed Duron driving the Taurus
to Rios’s residence and parking in the rear of the residence in an
area surrounded by a high wooden fence.
Approximately thirty minutes after arriving at Rios’s
residence, the surveillance team observed the red Taurus leaving
the residence. The vehicle proceeded in the direction of a local
gas station. The team lost the vehicle briefly, but subsequently
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reacquired it parked at the gas station. The team had been unable
to see the driver of the vehicle during the trip to the station and
the driver was not in the vehicle when the officers arrived at the
station.
During the surveillance, Guzman spoke with the CI on a mobile
telephone. The CI reported that the marijuana purchasers suspected
that police officers were in the area and would therefore not
retrieve the car and the marijuana. Based on this information,
Guzman ordered the officers to verify that the car contained
marijuana. The officers found approximately seventy-five pounds of
marijuana in the trunk of the car. Guzman instructed an officer to
drive the red Taurus to the police station.
A few minutes after the Taurus left the gas station, members
of the surveillance team observed the red Ford pickup truck leave
Rios’s residence with three occupants. Shortly thereafter, the
truck drove into the gas station. Guzman instructed the officers
to detain the truck. After the occupants of the truck were
identified as Adolfo Moreno-Rios, Jose Angel Rios and Duron, Guzman
ordered Sanchez to arrest them.
After the district court denied Duron’s motion to suppress,
Duron entered a conditional guilty plea1 to conspiracy to possess
with intent to distribute less than fifty kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. The
1
Duron specifically preserved his right to appeal the
district court’s ruling on his suppression motion.
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district court imposed an eighteen month jail sentence, a three
year term of supervised release, and a $100 assessment. Duron
appeals the district court’s denial of his suppression motion,
arguing that the officers lacked probable cause to arrest him and
that therefore “any evidence discovered” as a result of his arrest
should have been suppressed because such evidence is the product of
an illegal arrest.2
II
“Appellate review of a district court’s ruling on a motion to
suppress based on testimony at a suppression hearing is subject to
the clearly erroneous standard.” United States v. Gonzales, 79
F.3d 413, 419 (5th Cir.), cert. denied, __ U.S. __, 117 S. Ct. 183,
136 L. Ed. 2d 122 (1996). We review questions of law de novo, but
we accept factual findings unless the district court’s findings
were clearly erroneous or influenced by an incorrect view of the
law. Id. Furthermore, we view the evidence in the light most
favorable to the party prevailing below, except where such a view
is either not consistent with the district court’s findings or is
clearly erroneous considering the evidence as a whole. Id.
2
Duron never specifies what “evidence” should have been
suppressed. There is some mention in the suppression hearing
transcripts of statements Duron allegedly made at the police
station after receiving Miranda warnings, but Duron does not
mention these statements, or explain their content, in his
appellate brief. In any event, because we find that the officers
had probable cause to arrest Duron, “any evidence discovered” as a
result of his arrest need not have been suppressed.
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We review de novo the district court’s ultimate legal
conclusion that the police officers had probable cause to arrest
Duron. United States v. Harlan, 35 F.3d 176, 178 (5th Cir. 1994).
Probable cause exists when the facts and circumstances known to the
arresting officer are sufficient to cause a person of reasonable
caution to believe that an offense has been or is being committed
and the arrested person is the guilty person. United States v.
Ramirez, 963 F.2d 693, 698 (5th Cir.), cert. denied, 506 U.S. 944,
113 S. Ct. 388, 121 L. Ed. 2d 296 (1992). Mere association with a
known criminal does not, by itself, create probable cause for
arrest. Id. In order to find probable cause based on association
with persons engaging in criminal activity, some additional
circumstances from which it is reasonable to infer participation in
criminal enterprise must be shown. Id.
We find such additional circumstances in this case. Duron was
not just seen in the company of a suspected drug trafficker.
Officers saw Duron being transported to the location of the load
vehicle in the red pickup truck in which Rios had discussed a drug
transaction with the CI. In addition, officers observed Duron
driving the load vehicle to Rios’s residence, where the vehicle was
to be loaded with marijuana. When the officers later opened the
truck of the load vehicle at the gas station, they discovered over
seventy pounds of marijuana. Finally, Duron accompanied Rios and
his son to the gas station))the location of the marijuana-laden
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load vehicle))in the red pickup truck on the day of the scheduled
drug transaction. Based on this evidence, all of which was known
to Guzman at the time he ordered Duron’s arrest, a reasonable
officer could have believed that Duron was involved in the planned
distribution of over seventy pounds of marijuana. The district
court therefore did not err in denying Duron’s motion to suppress.
AFFIRMED.
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