                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUL 16 1997
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 96-8093
 v.                                               (D.C. No. CR-034-03B)
                                                        (D. Wyo.)
 PLACIDO DOMINGUEZ-MORENO,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.


      Defendant-Appellant Placido Dominguez-Moreno pled guilty to one count

of conspiracy to distribute marijuana. Pursuant to Fed. R. Crim. P. 11(a)(2), the

plea was conditional upon Dominguez-Moreno’s appeal of his motion to suppress,

which was denied by the district court. Dominguez-Moreno claimed that he was

arrested without probable cause, and that incriminating evidence found after his


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
arrest was a fruit of his arrest. Because we conclude that there was probable

cause for Dominguez-Moreno’s arrest, we affirm both the denial of the motion to

suppress and the conviction.

                                BACKGROUND

      In February 1996, George Mazzuca, a confidential informant for the

Wyoming Division of Criminal Investigation (DCI), contacted DCI agents with

information concerning a drug transaction involving Jose Luis Garcia-Aviles.

Mazzuca informed the DCI agents that Garcia-Aviles was seeking to distribute

marijuana in Colorado and Wyoming, and had contacted Mazzuca in hopes of

completing a sale. Mazzuca had previously informed the DCI that Garcia-Aviles

was a significant supplier of cocaine and marijuana, and the DCI had elsewhere

learned that Garcia-Aviles had been arrested in Nebraska with $100,000 and a

large quantity of cocaine.

      On March 11, 1996, Garcia-Aviles contacted Mazzuca and offered to sell

him marijuana. Mazzuca agreed to purchase twenty pounds of marijuana at a

price of $1,000 per pound. Mazzuca then informed the DCI of the pending drug

sale. On March 13, 1996, in a call monitored by the DCI, Mazzuca telephoned

Garcia, who was staying in Denver, Colorado, to make further arrangements for

the sale. Mazzuca and Garcia-Aviles agreed to meet at a McDonald’s restaurant

located on Interstate 25 near Cheyenne, Wyoming, although it is unclear whether


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the intended rendezvous point was in Cheyenne or in Chugwater, Wyoming.

Additionally, during this conversation, Mazzuca and Garcia-Aviles agreed to a

reduced purchase price for the marijuana of $700 per pound. The meeting was to

take place at approximately 4:00 that afternoon, and Garcia informed Mazzuca

that he would be driving a black Ford Thunderbird.

      The DCI established surveillance points south of Cheyenne near the

Colorado-Wyoming border. Although Garcia-Aviles only mentioned the black

Thunderbird in his telephone conversation with Mazzuca that day, Mazzuca had

previously informed the DCI that Garcia-Aviles brought the marijuana into the

United States using both a black Thunderbird with New Mexico plates and a gray

Oldsmobile with Chihuahua, Mexico plates. At approximately 3:15 p.m, DCI

offers observed two vehicles matching Mazzuca’s description driving northbound

on I-25. The vehicles appeared to be driving in tandem, as each vehicle was

driving at 60 miles per hour, fifteen miles per hour below the posted speed limit,

and each would change lanes from time to time at approximately the same time as

the other.

      The vehicles drove past the exit for the Cheyenne McDonald’s and

continued northbound on I-25. The DCI decided to stop the vehicles at milepost

22 on I-25. Because Mazzuca had informed the DCI that Garcia-Aviles generally

traveled with weapons close at hand, the DCI decided that it would conduct a


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“felony stop.” At approximately 3:40 p.m, DCI agents stopped the vehicles and,

after approaching the vehicles with weapons drawn, asked the occupants to exit

the vehicles. Upon exiting the vehicles, the occupants were immediately

handcuffed.

      Dominguez-Moreno was the driver and sole occupant of the black

Thunderbird, the vehicle Mazzuca had told the DCI would be used in the drug

transaction. Garcia-Aviles and Noe Garcia-Avarca were in the Oldsmobile.

Garcia-Aviles’ appearance was consistent with the description given the DCI by

Mazzuca: a short, heavyset man wearing western attire and western boots.

      Because the weather was cold, windy, and rainy, the DCI only conducted a

cursory search of the vehicles during the stop on I-25. No contraband or weapons

were found during this preliminary search. However, the vehicles were taken to

DCI headquarters for further investigation. A subsequent search of the

Thunderbird uncovered 26 pounds of marijuana wrapped in 33 bricks.

      After his indictment for conspiracy to possess with intent to distribute

marijuana and possession with intent to distribute marijuana, Dominguez-Moreno

filed a motion to suppress the marijuana based on the contention that the DCI did

not have probable cause to arrest him, and thus the marijuana was tainted by the

illegal arrest. After the district court denied that motion, Moreno entered a

conditional guilty plea to one count of conspiracy to possess with intent to


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distribute marijuana. Dominguez-Moreno now appeals the denial of his

suppression motion. We have jurisdiction under 28 U.S.C. § 1291.

                                   DISCUSSION

      In reviewing a district court decision that suppresses evidence, we review

the district court’s findings of historical fact under the clearly erroneous standard.

United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). However, the

district court’s ultimate determination as to whether a Fourth Amendment

violation occurred is reviewed de novo. Id.

      The United States concedes that Dominguez-Moreno was arrested when the

vehicle he was driving was stopped on I-25 and he was placed in handcuffs.

Thus, the only issue before us is whether the DCI had probable cause to effect

that arrest. We conclude that there was probable cause to arrest Dominguez-

Moreno.

      By the time Dominguez-Moreno was arrested, the DCI knew: Garcia-Aviles

had entered the United States with large quantities of marijuana that he intended

to sell in Wyoming and Colorado; that he was using two vehicles, a black

Thunderbird and a gray Oldsmobile, to transport drugs; that he had arranged to

travel from Denver to Wyoming via I-25 on the afternoon of March 13, 1996 to

sell twenty pounds of marijuana to Mazzuca, and that he might be accompanied

by others; that the two vehicles known to be used by Garcia to transport marijuana


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were observed on I-25 north of the Colorado-Wyoming border, traveling in

tandem at a speed substantially below the posted speed limit; that a person

matching Garcia-Aviles’ description was an occupant of one of the cars; and, that

Dominguez-Moreno was the sole occupant of the Thunderbird, the vehicle that

Garcia-Aviles had told Mazzuca would be used in the drug transaction that

afternoon. This information gave the DCI agents probable cause to believe that a

crime was being committed by the occupants of the two cars, and thus to arrest

Dominguez-Moreno as one of the occupants.

      The cases cited by Dominguez-Moreno do not support his position that

there was no probable cause to support the arrest. Dominguez-Moreno was not

arrested because of his mere presence at the scene of a crime. Compare Ybarra v.

Illinois, 444 U.S. 85, 91 (1980) (holding that a person’s “mere propinquity” to

persons suspected of criminal activity does not provide probable cause to search

that person). Rather, he was driving a car specifically identified by Mazzuca as

the one to be used to transport drugs for a drug deal, in volitional and obvious

tandem with a car driven by a person Mazzuca had identified as a drug dealer and

who the DCI had strong reason to believe was on his way to a drug deal.

      We recognize that United States v. Melendez-Garcia, 28 F.3d 1046 (10th

Cir. 1996) involves facts somewhat similar to those in this case, and that we

stated in dicta in that case that “no [probable cause] argument could be made on


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this record.” Id. at 1052. However, in addition to the fact that the government

did not contend that the arrest was predicated on probable cause in that case, the

officers in Melendez-Garcia had less information, and less reliable information,

about the occupants of the vehicles than did the officers in this case. First, the

information in Melendez-Garcia was provided by a confidential informant, id. at

1049, whereas here the DCI had worked with Mazzuca in the past and knew that

he was reliable. D. Ct. Order at 26.

      Further, the information in Melendez-Garcia did not provide any particular

indication that the occupants of the vehicle would be armed and dangerous, and

that a felony stop was needed to secure the vehicles, whereas here Mazzuca

informed the DCI that Garcia-Aviles would be armed. The reliability of the

information provided by Mazzuca was further buttressed because the DCI

monitored the telephone conversation between Mazzuca and Aviles-Garcia during

which the drug deal was set up, and was able to obtain very specific information

about the time frame within which the drug deal would take place and the types of

vehicles that would be used. Compare Melendez-Garcia, 28 F.3d at 1049

(officers knew drugs would be transported within “the next few days”). In fact,

we have held that the quality and quantity of information about the defendant

present in this case is sufficient to support a conviction. United States v. Lopez-




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Gutierrez, 83 F.3d 1235, 1244 (10th Cir. 1996). A fortiori, then, such information

is adequate to support a probable cause determination.

      Because Moreno’s arrest was valid, the subsequent search of the

Thunderbird was valid as well.

                                 CONCLUSION

      For the foregoing reasons, we AFFIRM the denial of Moreno’s motion to

suppress, and therefore AFFIRM the conviction upon his conditional guilty plea.

The mandate shall issue forthwith.


                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




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