                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 23, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 11-2017
          v.                                           (D. New Mexico)
 JORGE ERALDO AISPURO-                        (D.C. No. 1:10-CR-01006-JEC-2)
 ARISTEGUI,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ and HOLMES, Circuit Judges, and EAGAN, ** District Judge.


      Defendant Jorge Eraldo Aispuro-Aristegui pleaded guilty in the United

States District Court for the District of New Mexico to possession of heroin with

intent to distribute and conspiracy to commit the offense. See 21 U.S.C.

§§ 841(b)(1)(B), 846. His plea reserved his right to appeal the district court’s

denial of his motion to suppress. Defendant filed a timely appeal and argues that




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
       Honorable Claire V. Eagan, Chief Judge, United States District Court,
Northern District of Oklahoma, sitting by designation.
there was not probable cause for his arrest. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

I.    BACKGROUND

      We recite the “evidence in the light most favorable to the district court’s

ruling.” United States v. Cortez-Galaviz, 495 F.3d 1203, 1205 (10th Cir. 2007).

On March 22, 2010, Agent Jarrell Perry 1 of the Drug Enforcement Administration

(DEA) was at the Albuquerque bus station watching passengers exit a bus en

route from El Paso to Denver. He saw a man, later identified as Oscar Raul

Villanueva, walk through the bus station carrying only a small black satchel and

not stopping to get checked luggage. Mr. Villanueva’s shoes had a bulge at the

top, which led Agent Perry to believe that the shoes may contain illegal drugs.

He caught up to Mr. Villanueva, showed his badge, and requested permission to

ask some questions. After a brief conversation in Spanish, Mr. Villanueva

consented to a search of his shoes. Agent Perry discovered what appeared to be a

tape-wrapped bundle of about a kilogram of heroin. He knew that a kilogram of

pure heroin could sell for more than $50,000, and as much as triple that if diluted

with additives. Based on his training and experience, including experience at the


      1
       Although we must view Agent Perry’s testimony at the suppression
hearing in the light most favorable to the government (indeed, the district court
explicitly found that his testimony was credible), we have previously raised
serious questions about his veracity. See United States v. Rangel, 519 F.3d 1258
(10th Cir. 2008). It was disappointing to read in the record of this case that over
two years later the matter was still under investigation.

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same bus station with passengers who had concealed heroin in their shoes, he

concluded that the bundle was “definitely a distributable amount” that was to be

delivered to another person. R., Vol. 3 at 18. As Agent Perry reached for his

handcuffs, Mr. Villanueva attempted to run, but he was quickly caught and

restrained.

      An off-duty Sandoval County sheriff’s sergeant, Rudy Villarreal, identified

himself and offered to assist. He read Mr. Villanueva his Miranda rights in

Spanish, and Mr. Villanueva agreed to cooperate. Mr. Villanueva told the

officers that he would receive a direct-connect phone call from the person who

was supposed to pick him up, that he was to deliver the shoes (which he knew

contained drugs) to that person, that he would receive $1,000 for doing so, and

that he would then promptly leave town. He did not, however, provide a

description, name, or address of the person who was to pick him up.

      After making these statements, Mr. Villanueva showed Agent Perry a black

cell phone that he was carrying. Agent Perry saw that there had been a recently

missed direct-connect phone call, and Mr. Villanueva confirmed that it was from

the number of the person who was supposed to pick him up. Mr. Villanueva

agreed to call the number and let the person know that he was at the bus station

waiting to be picked up. By this time, another DEA agent, Kevin Small, had

arrived on the scene. Mr. Villanueva made the call and told the agents that the

person on the other end of the line had said that he would be coming in a few

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minutes, but Mr. Villanueva did not describe what the person’s vehicle would

look like. Mr. Villanueva was told to approach the vehicle but not enter it.

      Within a few minutes a Chevy Malibu drove up and parked directly behind

Agent Small’s vehicle near the bus station. It was the only vehicle that had

arrived, and Mr. Villanueva was the only passenger standing outside the bus

station. Agent Small observed Defendant make a gesture in Mr. Villanueva’s

direction, and Mr. Villanueva indicated to Sergeant Villarreal that the driver was

the person who was going to pick him up. Mr. Villanueva, whose handcuffs were

hidden by a jacket, approached the vehicle and spoke with the driver (Defendant)

through the passenger-side window. Agent Perry could not hear what was said

but observed Mr. Villanueva turn and look at Sergeant Villarreal and then glance

toward where he was standing inside the bus station. Next Mr. Villanueva opened

the passenger-side door and began to sit in the Malibu, whose engine was still

running. Agents Perry and Small immediately approached the driver’s side of the

Malibu with their guns drawn, removed Defendant from the vehicle, and arrested

him. Defendant made no attempt to flee. Agents Perry and Small drove

Mr. Villanueva and Defendant to the DEA office in Albuquerque, where

Defendant waived his Miranda rights and answered some questions.

      After Defendant was indicted, he moved to suppress all evidence seized and

statements made as a result of his arrest. The motion was denied, and he entered

into a plea agreement permitting him to appeal the denial of the suppression

                                         -4-
motion. He now appeals, contending that his arrest was not supported by

probable cause.

II.   DISCUSSION

      Defendant argues that his arrest violated the Fourth Amendment, and

therefore his postarrest statements must be suppressed as fruit of the poisonous

tree. See Wong Sun v. United States, 371 U.S. 471, 487–88 (1963). Because we

hold that Defendant’s arrest was lawful, we need not address whether his

postarrest statements were fruit of the arrest.

      In reviewing the denial of Defendant’s motion to suppress, “we . . . accept

the district court’s factual findings unless clearly erroneous” and “apply de novo

review to the district court’s determination of reasonableness under the Fourth

Amendment.” United States v. Turner, 553 F.3d 1337, 1344 (10th Cir. 2009).

The Constitution requires that arrests by law enforcement officers be supported by

probable cause. See U.S. Const. amend. IV; United States v. Vazquez-Pulido, 155

F.3d 1213, 1216 (10th Cir. 1998). “Probable cause to arrest exists only when the

facts and circumstances within the officers’ knowledge, and of which they have

reasonably trustworthy information, are sufficient in themselves to warrant a man

of reasonable caution in the belief that an offense has been or is being

committed.” Cortez v. McCauley, 478 F.3d 1108, 1116 (10th Cir. 2007) (en banc)

(internal quotation marks omitted).




                                         -5-
      Defendant does not challenge the district court’s factual findings. Rather,

he argues that there was no probable cause because the agents (1) knew only that

Defendant came to the bus station to give Mr. Villanueva a ride—a completely

innocent and legal activity, and (2) had no reason to trust Mr. Villanueva and

therefore had no reliable information linking him with Defendant in illicit

activity. We are not persuaded.

      The central issue is whether the officers could reasonably believe

Mr. Villanueva’s statement that he was to be paid for delivering his shoes to the

person picking him up. If that statement was true, then the Malibu driver was not

merely one who happened to have associated with a criminal. See United States

v. Hansen, 652 F.2d 1374, 1388 (10th Cir. 1981) (“[A]ssociation with known or

suspected criminals is not enough in itself to establish probable cause.”).

      To be sure, the officers had no knowledge whether Mr. Villanueva was

ordinarily a trustworthy source of information. But this was no mere bald

accusation that the Malibu driver was a drug dealer. Mr. Villanueva’s account

was in large part corroborated. See United States v. Quezada-Enriquez, 567 F.3d

1228, 1233 (10th Cir. 2009) (“When there is sufficient independent corroboration

of an informant’s information, there is no need to establish the veracity of the

informant.” (brackets and internal quotation marks omitted)). He was

transporting a very valuable quantity of heroin in his shoes. His lack of luggage

suggested a brief visit. His description of how he would be met was confirmed by

                                         -6-
Agent Perry’s observation of a missed direct-connect call on Mr. Villanueva’s

phone and the arrival of the Malibu in response to Mr. Villanueva’s call to that

number. And the scenario described by Mr. Villanueva was fully consistent with

Agent Perry’s training and experience with similar individuals found carrying

drugs in their shoes at that bus depot. See Ornelas v. United States, 517 U.S. 690,

700 (1996) (“[A] police officer may draw inferences based on his own experience

in deciding whether probable cause exists.”); United States v. Wicks, 995 F.2d

964, 972–73 (10th Cir. 1993) (similar). Indeed, the circumstances may have

sufficed to establish probable cause to believe that the Malibu driver was

Mr. Villanueva’s partner in crime even without considering Mr. Villanueva’s

statements. Thus, the arresting officers could reasonably rely on

Mr. Villanueva’s statements.

      “Although [Defendant’s] actions could theoretically have been innocent, we

believe a prudent, cautious and trained police officer more likely would have

construed those actions as indicating [that Defendant] was [involved in the

crime].” United States v. Sparks, 291 F.3d 683, 688 (10th Cir. 2002); see United

States v. Valencia-Amezcua, 278 F.3d 901, 906 (9th Cir. 2002) (“In drug

investigations, the court may consider the experience and expertise of the officers

involved. This experience and expertise may lead a trained narcotics officer to

perceive meaning from conduct which would otherwise seem innocent to the




                                        -7-
untrained observer.” (internal quotation marks omitted)). Taken as a whole, the

information available to the agents gave them probable cause to arrest Defendant.

III.   CONCLUSION

       We AFFIRM the judgment of the district court.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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