                                                                                 F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                  JUN 25 1997
                                     TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                          No. 96-2243
 JESSE JOE ALVAREZ,                                   (D.C. No. CR-95-540-MV)
                                                              (D.N.M.)
           Defendant-Appellant.



                                  ORDER AND JUDGMENT*


Before SEYMOUR, PORFILIO, and BALDOCK, Circuit Judges.



       Defendant Jesse Alvarez appeals the district court’s denial of his motion to

suppress evidence. After Defendant’s motion to suppress was denied, he conditionally

pleaded guilty to Felon in Possession of a Firearm, 18 U.S.C. §§ 922(g)(1) and 924(a)(2),

and was sentenced to 57 months incarceration and 3 years supervised release. We have

jurisdiction of this appeal pursuant to 28 U.S.C. § 1291, and we affirm.




       *
                This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
       Defendant advances four claims in his appeal. Defendant asserts that (1) the

district court’s finding that the officers who testified at the suppression hearing were

credible is clearly erroneous; (2) he was arrested without probable cause; (3) we should

create a bad faith exception to the “fellow officer” rule in this case; and (4) his statements

incident to arrest should be suppressed as involuntary and all evidence flowing therefrom

should also be suppressed. Defendant’s first three arguments are all predicated on our

agreement with him that the district court’s factual findings were clearly erroneous.

Accordingly, we will address those together, and then consider his final claim.

       The facts pertinent to this appeal are as follows. Defendant is a gang member in

Albuquerque, New Mexico. On the day in question, a Detective Lewis of the

Albuquerque Police Department received a tip from a confidential informant (CI) that

Defendant was at a car wash in Albuquerque and was carrying a gun. Detective Lewis

conveyed this information to other officers who informed an Officer Yurcisin. Officer

Yurcisin and Detective Lewis both testified that they were aware that Defendant had

previously been convicted of a felony.

       After he received the information concerning Defendant, Officer Yurcisin

proceeded to the car wash and attempted to locate Defendant. He parked his vehicle,

noticed Defendant, and made eye contact with him. When Officer Yurcisin made eye

contact with Defendant, he motioned for Defendant to approach. Rather than

approaching Officer Yurcisin, Defendant turned and began to walk towards a vehicle.


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Officer Yurcisin then hurriedly attempted to overtake Defendant and arrived at the

vehicle at approximately the same time as Defendant. Defendant attempted to enter the

vehicle and resisted Officer Yurcisin’s demands to exit. Realizing that Defendant was

likely armed, Officer Yurcisin slapped Defendant about the head so that he could safely

extract him from the vehicle and subdue him. As the officer placed Defendant on the

ground, Defendant stated that he had a gun. Officer Yurcisin then arrested Defendant and

charged him with misdemeanor possession of a concealed weapon. Defendant was later

charged with the count here at issue, the felony federal offense of felon in possession of a

firearm. We will discuss further testimony from the hearing as is necessary.

       When reviewing a district court’s ruling on a motion to suppress, we view the

evidence in a light most favorable to the district court’s findings. United States v.

Jimenez, 864 F.2d 686, 688 (10th Cir. 1988). Moreover, we accept the district court’s

factual findings and credibility determinations unless they are clearly erroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). However, we do review

de novo the ultimate legal question--whether the police conduct was reasonable under the

Fourth Amendment. United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993).

       Defendant’s first three claims all boil down to a question of whether or not we

should believe the police officers who testified at the suppression hearing. If the officers’

testimony is believed, then Officer Yurcisin had probable cause to arrest Defendant based

on the information he possessed at the time of the arrest. Officer Yurcisin testified that he


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had been told that a reliable CI had seen Defendant with a gun just moments before at the

car wash. Detective Lewis testified that although the CI was relatively new, it had given

him information twice before which had proven accurate. Detective Lewis also testified

that he was aware of Defendant’s status as a felon. Officer Yucisin testified at the

hearing that he also knew of Defendant’s status as a felon. Defendant argues that the

officers’ testimonies are not credible because Officer Yucisin only charged him with state

misdemeanor possession of a concealed weapon, rather than felon in possession of a

firearm. However, Officer Yucisin testified that the tip came from a CI in an ongoing

federal investigation of Defendant’s gang. He stated that he charged Defendant in that

manner in order to avoid compromising the investigation or the CI. It appears to be

undisputed that the investigation was ongoing and, in fact, ten days after Defendant’s

arrest, it resulted in the arrests of 23 people and this felony charge against Defendant.

The district court found the officer’s testimonies to be credible and, based on the record

before us, we do not believe that Defendant has demonstrated that this finding was clearly

erroneous.

       Since we hold that the district court’s findings that Officer Yucisin and Detective

Lewis were credible, there is little question that Officer Yucisin had probable cause to

arrest Defendant at the onset of the encounter. The officers had information that (1)

Defendant was a felon and (2) Defendant possessed a handgun. This constituted a felony

in violation of N.M. Stat. Ann. § 30-7-16 (Michie 1995). See Karr v. Smith, 774 F.2d


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1029, 1031 (10th Cir. 1985) (“Probable cause exists where the facts and circumstances

within an officer's knowledge and of which he had reasonably trustworthy information are

sufficient to warrant a prudent man in believing that an offense has been or is being

committed.”). Accordingly, Defendant’s claim that he was illegally arrested must fail.

Cf. Carroll v. United States, 267 U.S. 132, 156 (1925) ("The usual rule is that a police

officer may arrest without warrant one believed by the officer upon reasonable cause to

have been guilty of a felony . . . .").

       Finally, we find no merit in Defendant’s third assertion--that we should create a

bad faith exception to the “fellow officer” rule. The fellow officer rule requires that,

when determining probable cause, we look to the collective knowledge of the officers

involved in the arrest rather than merely examining the arresting officer’s knowledge.

See Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985). In order for us to entertain

Defendant’s argument on this matter, we must first accept his proposition that the district

court’s finding that the officers who testified at trial were credible is clearly erroneous

and that outrageous conduct occurred that the district court overlooked or ignored. As we

previously stated, we do not believe that Defendant has shown that the district court’s

findings on credibility were clearly erroneous. Moreover, on this record, we see no

evidence of outrageous police conduct. Therefore, Defendant’s third claim must fail.

       Defendant’s last argument is that his statement to Officer Yurcisin that he had a

gun was involuntary. The determination of whether a confession is voluntary is one we


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review de novo. United States v. Perdue, 8 F.3d 1455, 1466 (10th Cir. 1993). As we

have previously decided, there was no illegal detention in this case. Accordingly, the

question is whether Officer Yucisin improperly attempted to elicit information from

Defendant in violation of Miranda v. Arizona, 384 U.S. 436 (1966). A mere detention

does not equate to an interrogation. See Rhode Island v. Innis, 446 U.S. 291, 299 (1980).

In order for a defendant’s Fifth Amendment rights to be violated, he must be subjected to

“coercive police activity,” Colorado v. Connelly, 479 U.S. 157, 167 (1986), or police

behavior “that the police should know [would be] reasonably likely to evoke an

incriminating response.” Innis, 446 U.S. at 301.

       In the case at bar, the evidence showed that the officer was in the process of

subduing him when Defendant stated that he had a gun. The officer’s conduct in

subduing Defendant was reasonable because he had reason to believe that Defendant was

armed. Accordingly, he had a duty to provide for his safety and the public’s safety. This

is neither coercive nor interrogatory behavior. Defendant’s claim on this issue must fail

as well.

       AFFIRMED.

                                                   Entered for the Court,

                                                   Bobby R. Baldock
                                                   Circuit Judge




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