                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         February 9, 2006
                                TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-3240
          v.                                                (D. Kan.)
 MIGUEL ANGEL NAJERA,                           (D.C. No. 03-20194-02-CM)

               Defendant-Appellant.


                           ORDER AND JUDGMENT           *




Before BRISCOE , BALDOCK , and TYMKOVICH , Circuit Judges.


      Defendant Miguel Angel Najera was one of several defendants charged

with conspiracy to distribute marijuana. After his motion to suppress was denied,

he pleaded guilty to one conspiracy count. He now challenges on appeal two

aspects of the proceedings below: (1) the denial of his motion to suppress, and (2)

the decision to enhance his sentence by four levels under the United States

Sentencing Guidelines. Because the police had probable cause to arrest him at the

scene of a controlled drug delivery, we affirm the denial of Najera’s motion to


      *
        This order and judgment is not binding precedent, except under the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.
suppress. And because he waived his right to appeal the sentence, we also

dismiss that portion of his appeal.

                                I. BACKGROUND

      Joseph Benfield, a contract trucker delivering a load from El Paso to

Kansas City, contacted police when he suspected his cargo contained illegal

drugs. Benfield was carrying ten pallets of bentonite, an inexpensive, powdered

clay, at the request of a person who identified himself as “Dan.” “Dan” had

instructed Benfield to deliver the bentonite to a business called Concrete

Solutions in Kansas City after hours. “Dan” gave Benfield a contact number that

he could use to reach Concrete Solutions.

      En route, Benfield received an unusual number of calls from “Dan,”

checking to see if everything was okay. He was leery of these calls because he

had carried more valuable freight and had never had customers call to check on

him like this. When he called the number “Dan” had given him for Concrete

Solutions, Benfield heard an answering machine greeting recorded in Spanish.

      He then received a call from someone who identified himself as “Bill

Riley,” who changed the delivery address. He told Benfield to take the bentonite

to a Shell gas station. Riley would flash his lights when Benfield arrived, and

Benfield was to follow him.




                                        -2-
      Suspicious about his load, Benfield contacted law enforcement officers

from a truck stop in southeast Kansas. A trained drug dog alerted on a bag of

bentonite, and officers were able to confirm that the load contained bags of

marijuana by probing the bentonite, removing a portion of marijuana, and field

testing it. Agents would later determine that the load included about 571 pounds

of marijuana.

      Deciding to complete the transaction, a Kansas Highway Patrol trooper took

Benfield’s place at the wheel to execute a controlled delivery. When he arrived at

the gas station, the trooper saw a red pickup truck, which flashed its lights and led

him to Meyers Turf Farm.

      By this time, it was after 7:00 pm on a December night, and Myers Turf

Farm was closed for business. The farm covered about 20 acres and had a few

buildings, but most of it was open farm land in a low-traffic area near Kansas

City. Fences surrounded some, but not all, of the grounds. The pickup led the

semi onto the farm, then the two men in the pickup got out, found a forklift, and

started unloading palates of bentonite into a nearby warehouse. The undercover

driver stayed in the semi, and other state and federal agents hid in various

locations around the farm.

      Within about fifteen minutes, the two men had unloaded five palates from

the truck, and law enforcement officers swept onto the farm. They detained the


                                         -3-
two and moved them toward a mechanic’s garage on the farm to be interviewed

by Special Agent Craig Wurdeman. The driver of the red truck, who earlier had

identified himself as “Bill Riley,” admitted that his name was really Robert

Crumby. The man with him was his brother-in-law Gary Houston. Crumby told

Wurdeman they were unloading the bentonite for someone named “Victor or

Hector,” another employee of Myers Turf Farm who had asked him to unload the

truck. He denied knowing the shipment contained marijuana. Crumby also

disclosed that “Victor” identified another “compadre” as involved in the delivery

and that this was the second time Crumby had unloaded an after-hours delivery

for “Victor” and his “compadre.”

      Another ten or fifteen minutes after Crumby was arrested two unidentified

cars drove in tandem onto the farm: a turquoise Pontiac followed by a white

conversion van. The van was driven by Najera and carried two other passengers.

The Pontiac was driven by Victor Garcia, who got out and walked toward

Wurdeman. Crumby immediately identified him as the one who had asked him to

unload the truck. The three in the van did not get out.

      Suspecting the others were also involved in the drug deal, Wurdeman called

officers to detain them as well. Officers ordered the three men to get out of the

van, handcuffed them, then searched them and the van. The search of Najera

produced the cell phone that Benfield had called earlier with the Spanish greeting.


                                         -4-
Call logs showed numerous calls between Najera’s phone and Crumby’s phone.

      Once the suspects had been detained, the officers took them to DEA

headquarters for further questioning. At the station, Najera refused to answer any

questions, but Garcia told officers that Najera was the “ring leader” of the

marijuana conspiracy.

      Crumby, Garcia, and Najera were indicted for conspiracy to possess

marijuana with the intent to distribute. Najera moved to suppress the evidence

seized during the search, arguing that the search and seizure violated the Fourth

Amendment. The district court rejected this argument, finding the detention was

initially supported by reasonable suspicion, and extension of that detention into a

full arrest was supported by probable cause created by Garcia’s incriminating

statements.

      Najera pled guilty to the offense and was sentenced on June 22, 2004. In

calculating the offense level, the district court included 375 pounds of marijuana

from the earlier, unindicted transaction at the same farm, which resulted in a

guideline range of 87–108 months. The court imposed a low-end sentence of 87

months.

                                  II. ANALYSIS

      On appeal, Najera challenges two aspects of the proceedings below. First,

he renews his argument that the evidence should be suppressed because the search


                                         -5-
and arrest lacked probable cause. Second, he claims his sentence was enhanced in

violation of United States v. Booker , 543 U.S. 220 (2005). We reject both

arguments.

       A. Motion to Suppress

       Najera argues that the officers violated the Fourth Amendment when they

arrested him and searched his car. The government responds that the search was a

proper search incident to arrest. Indeed, the Supreme Court has authorized

evidentiary searches of individuals and (if they are in a vehicle at the time) their

automobiles, incident to a lawful arrest.    See New York v. Belton , 453 U.S. 454,

460 (1981) (upholding the search of passenger compartment of an automobile

incident to a lawful arrest of someone in the vehicle);   Chimel v. California , 395

U.S. 752, 763 (1969) (stating that police may search an arrestee for weapons or

evidence). Thus, the only issue is whether the arrest was supported by probable

cause. We conclude that it was.

       When reviewing an order denying a motion to suppress, we review legal

conclusions de novo and factual determinations for clear error.     See, e.g., United

States v. Bradford , 423 F.3d 1149, 1156 (10th Cir. 2005). “The ultimate

determination of reasonableness under the Fourth Amendment, however, is a

question of law which we review de novo.”          Id.




                                             -6-
       We have noted that, “[t]o be lawful, a warrantless arrest must be supported

by probable cause to arrest.”    United States v. Edwards , 242 F.3d 928, 933 (10th

Cir. 2001) (citation omitted). “Probable cause to arrest exists when an officer has

learned of facts and circumstances through reasonably trustworthy information

that would lead a reasonable person to believe that an offense has been or is being

committed by the person arrested.”     United States v. Guerrero-Hernandez    , 95

F.3d 983, 986 (10th Cir. 1996). Probable cause, however, is a “fluid concept”

that “deals with probabilities” in light of the “totality of the circumstances.”

Maryland v. Pringle , 540 U.S. 366, 371 (2003).

       The central issue in this case is whether the totality of the circumstances

pointed specifically to Najera or whether he was implicated by his mere presence

at the scene of the crime. Indeed, we have recognized that “mere propinquity to

others independently suspected of criminal activity does not, without more, give

rise to probable cause.”    United States v. Vazquez-Pulido   , 155 F.3d 1213, 1216

(10th Cir. 1998) (quoting    Ybarra v. Illinois , 444 U.S. 85, 91 (1979)). “However,

where there are facts in addition to one’s association with someone engaged in [or

some place associated with] criminal activity, . . . we must consider whether the

‘totality of the circumstances’ known at the time of the arrest established probable

cause.” Id. at 1216–17 (citing United States v. Hillison , 733 F.2d 692, 697 (9th

Cir. 1984) (“In order to find probable cause based on association with persons


                                            -7-
engaging in criminal activity, some additional circumstances from which it is

reasonable to infer participation in criminal enterprise must be shown.”), and

United States v. Ramirez , 963 F.2d 693, 698–99 (5th Cir. 1992) (holding that

police had probable cause to arrest defendant who was seen in the company of

drug suspects, was seen meeting suspects while they engaged in a drug

conspiracy, and whose behavior was consistent with the inference he was part of

the conspiracy).

      In this case, a number of facts beyond Najera’s mere presence at the farm

gave the police probable cause to believe that he was involved in the drug

transaction. First, the officers knew that someone other than Crumby was

involved in the transaction because Benfield had called a number associated with

the conspiracy and reached a Spanish answering machine greeting. Crumby

confirmed that other people were involved when he told Agent Wurdeman that he

was unloading the truck for “Victor or Hector,” who was coordinating things for

his “compadre.” Thus, when Garcia and Najera arrived together so promptly after

Crumby started unloading the drugs, it was obvious they arrived in connection

with the delivery. Crumby immediately confirmed that Garcia was the one who

had asked him to unload the truck.

      Other facts at the time of delivery also support a finding of probable cause.

Although Crumby identified only Garcia by name, it was not unreasonable for the


                                        -8-
officers to conclude that Najera and his passengers were also involved in the drug

deal. It was evening in early December, and the turf farm was located in a remote

part of town. The farm was closed for the day, so Najera could not have been

there on legitimate business.   1
                                    The two vehicles arrived together and parked in a

way that suggested they were traveling as a pair. Crumby had told the officers

that “Victor” was working on the drug deal with his “compadre.”

       Najera, nonetheless, argues that “showing up      after a controlled delivery is

mere coincidence until investigation shows otherwise.” Appellant Br. at 16.

While this may be true in circumstances where an individual has plausible

business at a place where crime happens to be afoot, that is not the situation faced

by the drug enforcement officers here. The business was closed and off the

beaten path. The only reason for Najera’s presence was in connection with the

drug transaction, and nothing points to an innocent explanation or even

coincidence. Moreover, but for the police interruption of Crumby’s work, Garcia

and Najera likely would have arrived to witness the delivery still in progress.



       1
          Najera argues that the police did not actually know the farm was closed
until after they had arrested Najera. The farm owner confirmed the farm was
closed and that while Crumby often worked late, the others had no business being
there. The timing of this conversation, however, is irrelevant. As a matter of
fact, the farm was obviously closed, and the circumstances support the officers’
inference that Garcia and Najera had no legitimate reason to be there. Moreover,
the record reflects that Benfield had instructions to deliver the shipment after
hours.

                                             -9-
       And, as we have noted, the fact that Najera traveled in tandem with Garcia,

whom Crumby did identify, suggests he was involved in the drug deal. Unlike a

passenger who might just have been “along for the ride,” Najera was driving in a

separate vehicle. It is highly unlikely that Garcia would have invited an innocent

companion to follow him in a separate car while he checked on a drug delivery in

process. 2

       Najera argues that his case is indistinguishable from United States Supreme

Court precedent holding proximity to persons or places implicated in a crime does

not establish probable cause. In   Ybarra v. Illinois , 444 U.S. 85 (1979), the

Supreme Court held that police lacked probable cause to search a bar patron who

happened to be at the bar when a search warrant was executed. The court stated

that “mere propinquity” to the suspect or the premises was insufficient to create

probable cause to search Ybarra.    Id. at 91. Unlike Ybarra, however, Najera was

not merely present by virtue of his patronage of a legitimate business. As

discussed above, the turf farm was closed and out of the way. The timing of his




       2
         In addition to these facts, we also note that after the individuals were
taken to the police station, Garcia identified Najera as the ringleader in the drug
conspiracy, confirming the belief that Najera was involved in the transaction. The
district court relied on this identification to hold that the police had probable
cause to arrest Najera, but we do not rely on that statement since it was not made
at the turf farm.

                                         -10-
arrival and his obvious connection to Garcia, who had been implicated in the

conspiracy, distinguish this case from    Ybarra .

       Similarly, United States v. Di Re , 332 U.S. 581 (1948), is of little help to

Najera. The Supreme Court in      Di Re concluded that police lacked probable cause

to arrest a passenger in the car where the confidential informant, who was

driving, identified a second passenger, but not the first, in a criminal enterprise.

Here, however, Crumby did not identify Garcia to the exclusion of other

participants in the scheme. First, unlike the circumstances in   Di Re , where a

confidential informant had the incentive and obligation to incriminate everyone

involved in the crime, Crumby would not be expected to identify Najera. In         Di

Re, the circumstances suggested an inference that the informant was identifying

the sole member of the conspiracy. Crumby’s identification bears no such

implication. Crumby simply identified Garcia as his contact person and further

implicated another individual as well. Unlike a confidential informant, who

would have known many of the internal details of the conspiracy, Crumby denied

knowing anything about the drugs and, by implication, who besides Garcia was in

the distribution chain.

       Moreover, Crumby told officers that someone besides Garcia was involved.

Nothing suggests that Crumby was aware of or intended to reveal the entire scope

of the conspiracy. To the contrary, his identification of “Victor’s” associate only


                                           -11-
as “compadre” suggests he did not know specifically who else might have been

involved. Rather than limiting the scope of the conspiracy to Garcia, Crumby’s

statements make clear that others were involved.

       In summary, numerous facts beyond casual or coincidental association tied

Najera to the drug delivery. For these reasons, we hold that the police had

probable cause to arrest Najera and the others based on the circumstances

developed at the turf farm.

       B. Sentencing Enhancements

       In addition to appealing his motion to suppress, Najera challenges the

district court’s decision to enhance his sentence pursuant to the United States

Sentencing Guidelines under      United States v. Booker , 543 U.S. 220 (2005). The

government relies primarily on     United States v. Hahn , 359 F.3d 1315 (10th Cir.

2004), in responding that Najera waived his right to appeal his sentence. Since

the briefs were filed, we issued a decision in      United States v. Maldonado , 410

F.3d 1231 (10th Cir. 2005), where we dismissed a         Booker claim pursuant to an

appeal waiver with language identical to the waiver in this case.     3
                                                                          We see nothing


       3
           Najera’s plea agreement stated:

       Defendant knowingly and voluntarily waives any right to appeal or
       collaterally attack any matter in connection with this prosecution,
       conviction and sentence, except the defendant is allowed to appeal the
       Court’s denial of his motion to suppress evidence seized based upon the
                                                                       (continued...)

                                             -12-
to distinguish this case from   Maldonado and, therefore, dismiss the appeal of

Najera’s sentence.

                                    CONCLUSION

       For these reasons, we AFFIRM the district court’s decision to deny

Najera’s suppression motion and DISMISS Najera’s appeal of his sentence.

                                                 Entered for the Court

                                                 Timothy M. Tymkovich
                                                 Circuit Judge




       3
         (...continued)
       defendant’s claim that DEA agents lacked reasonable suspicion to
       detain the defendant and the Court’s denial of defendant’s motion to
       dismiss. The defendant is aware that Title 18, U.S.C. § 3742 affords a
       defendant the right to appeal the conviction and sentence imposed. By
       entering into this agreement, the defendant knowingly waives any right
       to appeal a sentence imposed which is within the guideline range
       determined appropriate by the court. . . . In other words, the defendant
       waives the right to appeal the sentence imposed in this case except to
       the extent, if any, the court departs upwards from the applicable
       sentencing guideline range determined by the court.

R. at 199–200. The only difference between this language and the language in
Maldonado is that Najera retained his right to challenge the suppression issue.

                                          -13-
