Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-28-2009
USA v. Del Valle
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3695
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"USA v. Del Valle" (2009). 2009 Decisions. Paper 1470.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3695
UNITED STATES OF AMERICA
v.
JOSE DEL VALLE,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No.06-cr-00667-1)
District Judge: Hon. Harvey Bartle, III
Submitted Under Third Circuit LAR 34.1(a)
April 24, 2009
Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges
(Filed: April 28, 2009)
OPINION
SLOVITER, Circuit Judge.
Jose Del Valle appeals the District Court’s denial of his motion to suppress. We
will affirm.
I.
In early October 2006, DEA agents began conducting surveillance of a house in
Palisades Park, New Jersey, based on information received from an unspecified source.
On October 18, 2006, agents followed a red pickup truck with Illinois plates from the
Palisades Park house to the parking lot of a Lowe’s home improvement store in
Philadelphia. The drive took approximately one hour and twenty-five minutes although
there were other Lowe’s stores located along the way.
After the driver parked and entered Lowe’s, a black sport utility vehicle (“SUV”),
driven by a man later identified as Del Valle, pulled up next to the red pickup. Del Valle
exited his vehicle and entered the red pickup as its driver, while the passenger of the
black SUV took over as its driver. The agents followed Del Valle in the red pickup to a
gated lot in North Philadelphia, where the SUV (now unoccupied) was already parked.
Del Valle, who entered the lot in the red pickup, disappeared from view, and departed
fifteen minutes later. The driver of the black SUV locked the gate and followed the red
pickup back to the Lowe’s parking lot, and Del Valle parked the red pickup where he had
originally found it. He then entered the black SUV, which drove away. The original
driver of the red pickup soon exited Lowe’s, carrying no shopping bags. Approximately
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an hour had elapsed since he entered the store. The agents then followed the red pickup
back to Palisades Park.
Terrance McCabe, a DEA agent with fifteen years in law enforcement (five of
which were with the DEA Task Force), was one of the agents who followed the red
pickup that day. Based on his observations and experience, McCabe believed that he had
witnessed “a vehicle drop for a narcotics transaction,” app. at 61, in which the men “were
dropping th[e] vehicle, either with narcotics in it or with money in it or vice versa,” app.
at 57.
Within the next few days, the agents identified Del Valle from a DMV photograph
and learned from other federal agents that he had been arrested for drugs, was the subject
of an ongoing investigation, and “was known to be a dangerous individual [who]
sometimes carried a weapon.” App. at 178.
On October 29, 2006, DEA agents followed what appeared to be the same red
pickup (now with New York license plates and driven by a different man), to the same
shopping center in Philadelphia.1 The driver entered a Walmart store, and soon thereafter
Del Valle and his co-defendant, Herminio Galindez, arrived in what appeared to be the
same black SUV that Del Valle had driven on October 18, 2006. Del Valle entered the
1
After the red pickup was seized, agents determined that it
was the same vehicle they followed to Philadelphia on October 18,
2006, by matching the vehicle identification numbers from the
Illinois and New York registration documentation.
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driver’s side of the red pickup, and Galindez, who was carrying a black duffle bag,
entered the passenger’s side.
Agent McCabe and Agent Jose Correa were among the agents following Del Valle
and Galindez on this occasion. Agent Correa had approximately ten years experience as a
DEA agent, as well as experience in the narcotics division of the Passaic County Sheriff’s
Office. The agents followed Del Valle as he drove through a residential neighborhood for
approximately twenty minutes in a manner that led Agents McCabe and Correa to believe
that Del Valle was employing the counter-surveillance technique of “squaring the blocks,”
app. at 74, 148, which is used to determine if a vehicle is being followed. At one point,
Del Valle pulled over and Galindez climbed into the vehicle’s extended cabin with the
black duffle bag. This activity led the agents to suspect that the pickup had a secret
compartment. After Del Valle began driving again, he continued to square the blocks
before making an abrupt turn that caused the agents to suspect that he now realized he was
being followed.
The agents then stopped the red pickup, blocking it in on either end with their cars,
and ordered the men to exit the vehicle. When Galindez was removed from the extended
cabin, Agent McCabe saw an open black duffle bag containing what he identified as
kilograms of cocaine, as well as an open “hidden compartment.” App. at 78. When Del
Valle exited the vehicle, he asked Agent Correa, without prompting, “just tell me who
gave me up?” App. at 367. The agents recovered a total of approximately twenty-four
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kilograms of cocaine and $22,000 in cash. After Del Valle and Galindez were arrested,
Galindez waived his Miranda rights and said in Spanish, “You got me with 24 kilos, what
else is there to say?” App. at 379.
Del Valle was charged with conspiracy to possess, with the intent to distribute, five
kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846;
possession, with the intent to distribute, five kilograms or more of cocaine in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A); and aiding and abetting the possession of five
kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 18
U.S.C. § 2.
The District Court denied Del Valle’s motion to suppress the physical evidence and
the statements resulting from the stop of the red pickup. A jury convicted him of all
charges. Because Del Valle had two prior convictions for felony drug offenses, he was
sentenced to life imprisonment, as statutorily mandated by 21 U.S.C. § 841(b)(1)(A). Del
Valle appeals the District Court’s denial of his motion to suppress.
II.
Without challenging any of the District Court’s factual findings, Del Valle argues
that his motion to suppress should have been granted because the vehicle stop did not
comport with the Fourth Amendment.2 Under Terry v. Ohio, “an officer may, consistent
2
The District Court had jurisdiction under 18 U.S.C. §
3231 and we have jurisdiction under 28 U.S.C. § 1291. We review
the District Court’s denial of a motion to suppress for clear error as
5
with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528
U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). “[R]easonable
suspicion can be established with information that is different in quantity or content than
that required to establish probable cause, but also . . . can arise from information that is
less reliable than that required to show probable cause.” Alabama v. White, 496 U.S. 325,
330 (1990). “[C]ourts are not to evaluate factors in isolation, but are instead to evaluate
the totality of the circumstances.” United States v. Nelson, 284 F.3d 472, 475 (3d Cir.
2002).
However, “to rise to a reasonable suspicion, these factors combined must ‘eliminate
a substantial portion of innocent travelers’ or describe ‘behavior in which few innocent
people would engage.’” United States v. Mathurin, — F.3d —, No. 07-4576, 2009 WL
792462, at *8 (3d Cir. 2009) (quoting Karnes v. Skrutski, 62 F.3d 485, 493 (3d Cir.
1995)); see also Nelson, 284 F.3d at 480 (“[A]cts that in isolation may be ‘innocent in
itself’ or at least susceptible to an innocent interpretation, may collectively amount to
reasonable suspicion.” (quoting United States v. Arvizu, 534 U.S. 226, 274 (2002)).
“[C]ourts are . . . to afford to officers the opportunity to ‘draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
to the underlying factual findings and exercise plenary review over
the Court’s application of law to those facts. United States v.
Perez, 280 F.3d 318, 336 (3d Cir. 2002).
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information available to them that “might well elude an untrained person.”’” Nelson, 284
F.3d at 475 (quoting Arvizu, 534 U.S. at 273).
Here, the facts were sufficient to establish reasonable suspicion because “when
viewed collectively and in light of the agents’ experience and training, they amounted to a
particularized and objective basis for suspecting [Del Valle and his co-defendant
Galindez] of criminal activity when the agents stopped the [pickup].” Mathurin, 2009 WL
792462, at *8.
III.
For the above-stated reasons, we will affirm the judgment and sentence of the
District Court.
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