     06-4813-cr
     United States v. Delossantos

 1                                  UNITED STATES COURT OF APPEALS
 2
 3                                      FOR THE SECOND CIRCUIT
 4
 5                                          -------------
 6
 7                                         August Term 2007
 8
 9   Argued: May 13, 2008                                     Decided: July 25, 2008
10
11                                      Docket No. 06-4813-cr
12
13   --------------------------------------------------X
14
15   UNITED STATES OF AMERICA,
16
17                                          Appellant,
18
19                    - against -
20
21   MARINO DELOSSANTOS,
22
23                                          Defendant,
24
25   FRANCISCO RODRIGUEZ,
26
27                                          Defendant-Appellee.
28
29   --------------------------------------------------X
30
31           Before:         FEINBERG, MINER, and B.D. PARKER, Circuit Judges.
32
33        The United States appeals from an order of the district
34   court granting defendant-appellee’s motion to suppress evidence
35   because the police lacked probable cause for his arrest. The
36   order of the district court is reversed.
37
38                             JAMES R. SMART, Assistant United States Attorney
39                                  (RICHARD J. SCHECHTER, Assistant United
40                                  States   Attorney,   WILLIAM  J.   NARDINI,
41                                  Assistant   United   States  Attorney,   Of
42                                  Counsel, on the brief), for KEVIN J.
43                                  O’CONNOR, United States Attorney for the
44                                  District of Connecticut, New Haven, Conn.,
45                                  for Appellant.
46
 1                  SARAH F. RUSSELL, Assistant Federal Defender, for
 2                       THOMAS G. DENNIS, Federal Defender, New
 3                       Haven, Conn., for Defendant-Appellee.
 4
 5   FEINBERG, Circuit Judge:

 6        Defendant-appellee Francisco Rodriguez was arrested after

 7   driving another man to the scene of a drug deal that turned out

 8   to be a police sting. The United States District Court for the

 9   District of Connecticut (Janet C. Hall, J.) concluded that the

10   police lacked probable cause to arrest Rodriguez and granted

11   his motion to suppress post-arrest statements and evidence

12   obtained from his apartment and car. For the reasons explained

13   below, we reverse the order of the district court.

14

15                              I. BACKGROUND1

16        Defendant Marino Delossantos met an undercover Drug

17   Enforcement Administration (“DEA”) task force agent, Officer

18   Felix Martinez of the Stamford, Connecticut Police Department,

19   in a bar. The two men discussed a possible cocaine deal.

20        At a second meeting, on October 25, 2005, Delossantos told

21   Officer Martinez that he looked familiar and that he suspected

22   Martinez was a Stamford police officer. He nevertheless agreed

23   to “go home” to get a cocaine sample. Agents followed

24   Delossantos’s car to 1315 Howard Avenue, a multifamily


           1
             This summary is drawn from the district court’s findings
      of fact. United States v. Rodriguez, No. 3:06-cr-57(JCH), 2006
      WL 2860633, at *1-4 (D. Conn. Oct. 4, 2006).

                                     -2-
 1   residential building in Bridgeport, Connecticut. Delossantos

 2   entered the building for a few minutes; he then left and drove

 3   to meet Officer Martinez at a Cumberland Farms grocery store

 4   and gas station in neighboring Fairfield. There, Delossantos

 5   got in the officer’s car and gave him the cocaine sample,

 6   telling him he could also get some heroin. During the meeting,

 7   Delossantos also asked Officer Martinez if he knew two people

 8   from Stamford; although the officer did know them, he denied

 9   it. Because of Delossantos’s evident suspicions, the agents

10   decided that they would arrest him at the next meeting.

11        That night, Officer Martinez called Delossantos and asked,

12   in code, to buy cocaine and heroin. They agreed to meet the

13   next day at the Cumberland Farms.

14        DEA agents surveilling 1315 Howard Avenue the next morning

15   saw Delossantos and another man, later identified as defendant-

16   appellee Rodriguez, leave the building’s front porch and get in

17   the car that Delossantos had driven the previous day. Agents

18   saw Rodriguez drive the car toward Interstate 95, then lost

19   sight of it. Half an hour later, at 11:15 a.m., Officer

20   Martinez spoke to Delossantos on his cell phone, and

21   Delossantos asked for more time; Martinez said he could hear

22   “car sounds” and another person in the background. When they

23   spoke again at 12:20 p.m., Martinez could again hear “road




                                   -3-
 1   noise” and another person. Both times, Martinez believed

 2   Delossantos was in a car.

 3        Agents saw both men return in the car to 1315 Howard

 4   Avenue at 12:30 p.m. Delossantos entered the building while

 5   Rodriguez walked behind the car and disappeared from view. They

 6   returned to the car about ten minutes later, and Rodriguez

 7   again drove them in the direction of the Cumberland Farms.

 8   Agents followed the car.

 9        Delossantos called Officer Martinez en route and told him,

10   in Spanish, to follow his car to another location when he

11   arrived. The phrase Delossantos used was variously translated

12   as “I don’t want to do it there” or “Let’s go some place else”

13   (by Martinez) and “I don’t want to be there” (by defendants’

14   translator). During the call, Martinez could hear Delossantos

15   speaking to another person in Spanish. Martinez asked

16   Delossantos to wait for him at the Cumberland Farms. When the

17   car pulled into the gas station, agents immediately surrounded

18   it and arrested both Delossantos and Rodriguez.

19        In response to questioning, Rodriguez told the agents that

20   he lived at 1315 Howard Avenue. He further consented to a

21   search of his apartment and car, which revealed drugs and other

22   evidence. Delossantos independently told the agents that he

23   shared an apartment with Rodriguez and that the drugs were his,

24   not Rodriguez’s. Delossantos also told the agents that


                                   -4-
 1   Rodriguez agreed to drive Delossantos knowing Delossantos was

 2   engaged in drug dealing.

 3        A federal grand jury returned an indictment against

 4   Delossantos and Rodriguez in March 2006, charging them with

 5   conspiracy to distribute 500 or more grams of cocaine and 100

 6   or more grams of heroin, and charging Delossantos with

 7   substantive possession counts. Delossantos pled guilty to the

 8   conspiracy counts in July 2006. In August 2006, the grand jury

 9   returned a superseding indictment that added substantive

10   possession counts against Rodriguez.

11        Rodriguez moved to suppress his post-arrest statements and

12   the evidence seized from his apartment and car. He was granted

13   leave to file a late motion to suppress evidence. The district

14   court held an evidentiary hearing on the suppression motion on

15   August 23, 2006. By order dated October 4, 2006, the district

16   court granted the suppression motion. The Government timely

17   brought this interlocutory appeal. Rodriguez’s trial has been

18   stayed pending this appeal; he is currently on pretrial

19   release.

20

21                              II. DISCUSSION

22   A. Governing Law

23        On appeal from the grant of a suppression motion, we

24   review the district court’s factual findings for clear error,


                                     -5-
 1   viewing them in the light most favorable to the Government, but

 2   we analyze de novo the existence of probable cause. United

 3   States v. Howard, 489 F.3d 484, 490-91 (2d Cir. 2007). The

 4   Government bears the burden of proof as to establishing

 5   probable cause. United States v. Elgisser, 334 F.2d 103, 110

 6   (2d Cir. 1964).

 7        The main question we must resolve is whether Rodriguez was

 8   legally arrested. If he was not, the evidence derived from his

 9   post-arrest statements and the consensual search of his

10   apartment and car must be suppressed as the fruit of an

11   unlawful arrest. Wong Sun v. United States, 371 U.S. 471, 485-

12   86 (1963).2

13        Rodriguez argues that his arrest was invalid under the

14   Fourth Amendment, which protects “[t]he right of the people to

15   be secure in their persons . . . against unreasonable searches

16   and seizures.” A warrantless arrest is unreasonable under the

17   Fourth Amendment unless the arresting officer has probable

18   cause to believe a crime has been or is being committed.

19   Devenpeck v. Alford, 543 U.S. 146, 152 (2004); United States v.

20   Watson, 423 U.S. 411, 417 (1976). Probable cause exists where

21   the arresting officer has “‘knowledge or reasonably trustworthy

22   information of facts and circumstances that are sufficient to


           2
             The Government does not contest the district court’s
      conclusion that the evidence against Rodriguez would not have
      been inevitably discovered absent his arrest.

                                   -6-
 1   warrant a person of reasonable caution in the belief that the

 2   person to be arrested has committed or is committing a crime.’”

 3   Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (quoting

 4   Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).

 5        The Supreme Court has repeatedly stated that the probable-

 6   cause standard is “a ‘practical, nontechnical conception’ that

 7   deals with ‘the factual and practical considerations of

 8   everyday life on which reasonable and prudent men, not legal

 9   technicians, act.’” Maryland v. Pringle, 540 U.S. 366, 370

10   (2003) (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)).

11   Because the standard is fluid and contextual, a court must

12   examine the totality of the circumstances of a given arrest.

13   Id. at 371; Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.

14   2006). These circumstances must be considered from the

15   perspective of a reasonable police officer in light of his

16   training and experience. United States v. Moreno, 897 F.2d 26,

17   31 (2d Cir. 1990), abrogated on other grounds by Horton v.

18   California, 496 U.S. 128 (1990).

19

20   B. Analysis

21        The district court found that at the time of the arrest

22   the agents knew or had reasonably trustworthy information as to

23   the following facts: (1) Delossantos had suspicions about the

24   undercover officer’s true identity; (2) the morning of the


                                   -7-
 1   planned drug buy, Rodriguez drove Delossantos from 1315 Howard

 2   Avenue, where the agents reasonably believed Delossantos was

 3   storing drugs, towards Cumberland Farms, the agreed-on meeting

 4   place; (3) Rodriguez and Delossantos were the only people in

 5   the car; (4) shortly afterwards, Delossantos asked for more

 6   time while another person was audible in the background; (5)

 7   after the request for more time, Rodriguez drove Delossantos

 8   back to 1315 Howard Avenue; (6) shortly afterwards Rodriguez

 9   drove Delossantos a third time from 1315 Howard Avenue to the

10   Cumberland Farms; and (7) while the car was en route,

11   Delossantos called the undercover officer to express discomfort

12   with the chosen meeting place.

13        We think the agents had probable cause to arrest Rodriguez

14   based on these facts. The Supreme Court has said that it is

15   reasonable to believe that “a car passenger . . . will often be

16   engaged in a common enterprise with the driver, and have the

17   same interest in concealing the fruits or the evidence of their

18   wrongdoing.” Wyoming v. Houghton, 526 U.S. 295, 304-05 (1999);

19   see also United States v. Patrick, 899 F.2d 169, 172 (2d Cir.

20   1990) (holding that after drugs were discovered in defendant’s

21   backpack, agents had reasonable basis to believe that co-

22   defendant “was not just a mere innocent traveling companion but

23   was traveling and acting in concert” with defendant). Here,

24   Rodriguez drove Delossantos on multiple trips, including the


                                      -8-
 1   final trip to the drug-buy location. More specifically, the

 2   Supreme Court has also said that it is reasonable to infer that

 3   if one person in a vehicle is engaged in drug dealing, so are

 4   the other passengers, because drug dealing is “an enterprise to

 5   which a dealer would be unlikely to admit an innocent person

 6   with the potential to furnish evidence against him.” Pringle,

 7   540 U.S. at 373. Here, the agents could have reasonably

 8   inferred that Delossantos was unlikely to be accompanied by an

 9   innocent person because Delossantos was already suspicious and

10   thus had reason to worry about the prospect of a witness

11   against him.

12        We disagree with Rodriguez and the district court that

13   this case is analogous to United States v. Di Re, 332 U.S. 581

14   (1948), which also involved the attempted sale of contraband

15   (in Di Re, counterfeit gas ration coupons) from a car. The

16   police in Di Re, acting on an informant’s tip, arrested all

17   three occupants of the car –- the driver, the informant sitting

18   in the back seat, and the defendant Di Re in the passenger

19   seat. Id. at 583. The Supreme Court held that the officers

20   lacked probable cause to arrest Di Re for either possession or

21   conspiracy, because while the informant held counterfeit

22   coupons in his hand and told the officers he got them from the

23   driver, Di Re was neither seen holding coupons nor named by the

24   informant as having any. Id. at 592.


                                   -9-
 1        We think Di Re is distinguishable from the facts here. The

 2   Court in Di Re was careful to note that “[t]he argument that

 3   one who ‘accompanies a criminal to a crime rendezvous’ cannot

 4   be assumed to be a bystander” is indeed “forceful enough in

 5   some circumstances.” Id. at 593. The Court said this argument

 6   was “farfetched” with respect to Di Re because (among other

 7   reasons) the informant fingered the driver, but not Di Re, as a

 8   culprit prior to the arrests. Id. at 593-94. There was no

 9   equivalent singling out of Delossantos but not Rodriguez.3 See

10   Pringle, 540 U.S. at 374 (distinguishing Di Re on the sole

11   basis that “[n]o such singling out occurred in this case”).

12   Furthermore, the evidence against Rodriguez at the time of his

13   arrest was stronger than that against Di Re. Whereas Di Re was

14   merely seen sitting in the suspect’s vehicle when officers

15   approached, the agents here saw Rodriguez ferry Delossantos

16   between the likely drug-stash location and the transaction

17   point and heard Delossantos discuss details of the transaction




           3
             Rodriguez’s argument that Officer Martinez effectively
      singled out Delossantos but not Rodriguez, because he “knew that
      Delossantos was the guilty person,” is specious. In Di Re, the
      informant had reason to know whether Di Re was guilty, so his
      silence concerning Di Re was properly understood as exculpatory.
      Here, Officer Martinez did not have preexisting information
      about Rodriguez’s involvement.

                                   -10-
 1   (albeit in veiled terms) with Rodriguez evidently sitting

 2   beside him.4

 3        We are also unpersuaded by Rodriguez’s attempts to

 4   minimize, qualify, or explain away individual facts that tend

 5   to establish his participation in the crime. Rodriguez argues,

 6   among other things, that he and Delossantos might have returned

 7   to 1315 Howard before the meeting not to retrieve drugs but

 8   simply because Delossantos may have “had other things to do”;

 9   that Rodriguez might not have been in the car when Delossantos

10   spoke to the undercover officer; that while Rodriguez was

11   spotted on the building’s front porch, there was no evidence he

12   had ever been inside; and that Rodriguez might have been

13   unaware of the purpose of the trip and the meaning of

14   Delossantos’s comments, having been brought along as nothing

15   but an “innocent dupe.” These omissions and hypothetical




           4
             Two other Supreme Court cases cited by Rodriguez, Ybarra
      v. Illinois, 444 U.S. 85 (1979), and Sibron v. New York, 392
      U.S. 40 (1968), are even less relevant. In Ybarra, police
      obtained a warrant to search a bar and its bartender yet decided
      to additionally search all the patrons inside, 444 U.S. at 88-
      89; in Sibron, police stopped the defendant simply after
      observing him speaking with known heroin addicts, 392 U.S. at
      45. These cases establish that a person’s presence at a crime
      scene or association with criminal suspects do not, without
      more, amount to probable cause to arrest. But as we have
      explained above, the agents’ suspicions of Rodriguez were not
      based solely on his association with Delossantos but on the
      objective likelihood that the two men were engaged in a common
      criminal endeavor.

                                   -11-
 1   explanations are persuasive in varying degrees, but they do not

 2   alter the existence of probable cause.

 3        First, the Supreme Court has instructed us not to consider

 4   individual facts in isolation but to examine the totality of

 5   the circumstances. Pringle, 540 U.S. at 371. In United States

 6   v. Arvizu, 534 U.S. 266 (2002), a border patrol agent who

 7   stopped defendant’s vehicle testified about a number of small

 8   details that might have each been explained away but that

 9   collectively aroused his suspicions. The Court held that, in

10   declining to give weight to any observation “that was by itself

11   readily susceptible to an innocent explanation,” the lower

12   court engaged in erroneous “divide-and-conquer analysis.”5 Id.

13   at 274; see also United States v. Fama, 758 F.2d 834, 838 (2d

14   Cir. 1985) (“The fact that an innocent explanation may be

15   consistent with the facts alleged . . . does not negate

16   probable cause.”). For the same reason, we cannot discount

17   facts one by one simply because Rodriguez has suggested

18   hypothetical explanations for them that are consistent with his

19   innocence.

20        Second, although Rodriguez posits innocent explanations

21   for his conduct, we must evaluate the facts in light of the


           5
             Although Arvizu involved the existence of reasonable
      suspicion to make a traffic stop rather than of probable cause
      to arrest, the opinion is relevant here because both standards
      require us to examine the totality of the circumstances. See
      United States v. Yusuf, 461 F.3d 374, 390 n.15 (3d Cir. 2006).

                                  -12-
 1   training and experience of the arresting agents. See Moreno,

 2   897 F.2d at 31. “‘[S]ome patterns of behavior which may seem

 3   innocuous enough to the untrained eye may not appear so

 4   innocent to the trained police officer who has witnessed

 5   similar scenarios numerous times before.’ As long as the

 6   elements of the pattern are specific and articulable, the

 7   powers of observation of an officer with superior training and

 8   experience should not be disregarded.” United States v. Price,

 9   599 F.2d 494, 501 (2d Cir. 1979) (alteration in original)

10   (quoting United States v. Oates, 560 F.2d 45, 61 (2d Cir.

11   1977)); see also United States v. $557,933.89, More or Less, in

12   U.S. Funds, 287 F.3d 66, 85 (2d Cir. 2002). In this case, the

13   agents testified that, in their experience, a drug dealer

14   rarely brings along an uninvolved bystander during drug deals

15   or speaks about the details of transactions in the presence of

16   a bystander, even in code. The agents also testified that a

17   dealer who is uneasy about a transaction will often bring an

18   associate for assistance and protection. We are bound to give

19   these observations, which are supported by the agents’ training

20   and experience, their due weight.

21        Finally, while Rodriguez’s explanations might well be

22   plausible enough to engender reasonable doubts about his guilt,

23   the standard for probable cause is lower than that for

24   conviction. United States v. Juwa, 508 F.3d 694, 701 (2d Cir.


                                  -13-
 1   2007); United States v. Fisher, 702 F.2d 372, 375 (2d Cir.

 2   1983). Thus, “innocent behavior frequently will provide the

 3   basis for a showing of probable cause; to require otherwise

 4   would be to sub silentio impose a drastically more rigorous

 5   definition of probable cause than the security of our citizens

 6   demands.” Gates, 462 U.S. at 244 n.13. We think the arresting

 7   agents had reason to think Rodriguez’s involvement in the drug

 8   deal was, at minimum, probable. See id. at 231 (emphasizing

 9   that probable cause deals in “probabilities” rather than “hard

10   certainties” (internal quotation marks omitted)).

11

12                           III. CONCLUSION

13        Because we find that the agents had probable cause to

14   arrest Rodriguez, there was no reason to suppress the evidence

15   against him. The order of the district court is reversed, and

16   the case is remanded for further proceedings consistent with

17   this opinion.




                                  -14-
