UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALONSO GOMEZ,
Plaintiff-Appellant,

v.                                                                    No. 97-1025

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-95-3346-JFM)

Submitted: March 31, 1998

Decided: April 20, 1998

Before MURNAGHAN, ERVIN, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John A. Austin, Towson, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Earle B. Wilson, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Alonso Gomez appeals from the district court's orders granting
summary judgment to the United States and denying his motion to
alter, revise, or amend the judgment filed pursuant to Fed. R. Civ. P.
59. For the following reasons, we affirm.

A district court's grant of summary judgment, as a question of law,
is reviewed de novo. See Higgins v. E.I. DuPont de Nemours & Co.,
863 F.2d 1162, 1167 (4th Cir. 1988). A summary judgment movant
must demonstrate that "there is no genuine issue as to any material
fact and that [it] is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In consid-
ering a motion for summary judgment, a district court should view the
evidence in light of the pleadings, drawing all facts and inferences in
favor of the non-moving party. See Anderson, 477 U.S. at 255 (citing
Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970));
Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
The non-moving party is entitled to have the credibility of all its evi-
dence presumed. See Miller v. Leathers, 913 F.2d 1085, 1087 (4th
Cir. 1990).

Before the non-moving party must face the burden of demonstrat-
ing the existence of a triable issue of fact, the movant must meet its
burden of showing the absence of evidence to support the non-
movant's case. See Celotex, 477 U.S. at 325; Cray Communications,
Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 393-94 (4th Cir.
1994). The existence of some alleged factual dispute between the par-
ties will not defeat an otherwise properly supported summary judg-
ment motion. See Anderson, 477 U.S. at 247; Thompson Everett, Inc.
v. National Cable Advertising, L.P., 57 F.3d 1317, 1323 (4th Cir.
1995). Rather, the evidence must be sufficient to"return a verdict" at
trial for the party opposing the entry of judgment. Anderson, 477 U.S.
at 249. The non-moving party "cannot create a genuine issue of mate-
rial fact through mere speculation or the building of one inference
upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).

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The evidence, viewed in the light most favorable to Gomez,
showed that in November 1990, Drug Enforcement Agency (DEA)
Agent Kenneth Johnston received information that a Colombian male,
who was subsequently identified as David Lucumi, wished to pur-
chase twenty kilograms of cocaine in Baltimore, Maryland. On
November 26, 1990, DEA Agent Emil Marrero initiated contact by
telephone with Lucumi to commence a reverse undercover purchase
of cocaine, whereby Marrero would sell drugs to Lucumi. Over the
next two days, Marrero and Lucumi engaged in several telephone
conversations to plan the sale of the cocaine. Lucumi and Marrero
arranged to meet in the Fells Point area of Baltimore.

While traveling to Baltimore on November 28, Lucumi spoke to
Marrero over a cellular phone about consummating the drug transac-
tion. When Lucumi arrived at the designated location, he was driving
an Oldsmobile and Gomez was accompanying him in the passenger
seat of the vehicle. They came with another individual later identified
as Horacio Zapata, who followed them to Baltimore in a mini-van.
Marrero observed Lucumi and Gomez approach him as he sat on a
park bench. However, only Lucumi continued to approach Marrero.

After discussing the drug purchase money, Marrero and Lucumi
walked to Lucumi's vehicle so that Lucumi could display the drug
purchase money to Marrero. When they arrived at Lucumi's vehicle,
Gomez was standing on the passenger side of the vehicle. Lucumi
told Gomez to "open it." After Lucumi made this command, Gomez
entered the vehicle through the passenger door and sat down; Marrero
heard a "pop" sound. Believing that the trunk had opened when he
heard the "pop" sound, Marrero walked towards the trunk of
Lucumi's vehicle. Lucumi redirected Marrero to a hidden compart-
ment containing money, which had been opened in the left rear inte-
rior corner of Lucumi's vehicle. Gomez remained in Lucumi's vehicle
when the money was shown to Marrero. After the money was dis-
played by Lucumi, he and Marrero walked to another vehicle ostensi-
bly to retrieve the cocaine, and thereafter, Marrero gave a signal and
Lucumi was arrested. Shortly thereafter, Gomez and Zapata were
arrested.

In December 1990, a magistrate judge held a preliminary hearing
and found that there was probable cause to hold Gomez for the action

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of the grand jury for the offense of conspiracy to possess cocaine with
intent to distribute. Gomez was indicted and later convicted after a
jury trial for conspiracy to possess cocaine with intent to distribute,
in violation of 21 U.S.C. § 846 (1994). See United States v. Gomez,
No. 91-5101 (L) (4th Cir. June 29, 1992) (unpublished). Lucumi pled
guilty to the same offense. Id.

Gomez appealed his conviction to this court claiming that the evi-
dence submitted to the jury was insufficient to establish the existence
of a conspiracy in which he participated, and thus, the trial court erred
in denying his motion for a judgment of acquittal. Id. This court found
that, viewed in the light most favorable to the Government, the evi-
dence was sufficient to allow a rational trier of fact to conclude that
Gomez knew of, and participated in, the conspiracy. Id. Gomez subse-
quently moved for a new trial on the basis of newly discovered evi-
dence. Gomez submitted that Lucumi would testify that, after
Lucumi's arrest, he told DEA agents that Gomez had no knowledge
of and was not involved in the cocaine transaction. The district court
granted the motion on September 24, 1993, and thereafter, the Gov-
ernment, with the district court's leave, dismissed the indictment
against Gomez on September 30, 1993. Thus, Gomez's sentence and
conviction were nullified and vacated.

In the present case, Gomez filed a complaint against the United
States raising claims related to the facts surrounding his arrest on
November 28, 1990, and subsequent incarceration. He claimed that he
was maliciously prosecuted, falsely arrested and illegally and unlaw-
fully imprisoned continuously from November 28, 1989, through Sep-
tember 24, 1993, that he suffered from the infliction of emotional
distress, and suffered injury and damages based upon the Defendant's
prima facie tort. Gomez filed a motion for summary judgment. The
Government moved to dismiss or, in the alternative, for summary
judgment, and opposed Gomez's motion for summary judgment. The
district court granted summary judgment to the Government and
denied Gomez's motion. Gomez filed a motion to alter, raise, or
amend the judgment pursuant to Fed. R. Civ. P. 59, which the district
court denied. Gomez timely appeals.

On appeal, Gomez claims that the district court erred by granting
summary judgment when there existed an abundance of disputed

                    4
material facts, and basing the decision to grant summary judgment
upon a consideration of two disputed facts that were not dispositive
of the determination of the issue of probable cause to arrest. Gomez
correctly acknowledges that to prevail on the summary judgment
motion, he must prove that the DEA agents who arrested him acted
without probable cause. He erroneously states, however, that the issue
of probable cause rests upon whether Gomez knew about the hidden
compartment containing the money prior to it being opened by
Lucumi in his and Marrero's presence.

A review of relevant case law on probable cause, which Gomez
fails to refer to in his argument on appeal, reveals that whether proba-
ble cause to arrest existed is determined from the perspective of the
arresting officer at the time of the arrest. Probable cause exists if at
the time of the arrest the facts and circumstances within the officer's
knowledge would justify a prudent man's belief that the arrestee had
committed or was committing an offense. See Beck v. Ohio, 379 U.S.
89, 91 (1964); United States v. Williams, 10 F.3d 1070, 1073-74 (4th
Cir. 1993). Probable cause is evaluated based on the totality of the cir-
cumstances. See Illinois v. Gates, 462 U.S. 213, 238 (1983).

While probable cause requires more than "bare suspicion," it
requires less than the evidence necessary to convict. See Brinegar v.
United States, 338 U.S. 160, 175 (1949). It is an objective standard
of probability that reasonable and prudent persons apply in everyday
life. "In dealing with probable cause, however, as the very name
implies, we deal with probabilities. These are not technical; they are
the factual and practical considerations of everyday life on which rea-
sonable and prudent men, not legal technicians, act." Id. Because
probable cause is an objective test, we examine the facts within the
knowledge of arresting officers to determine whether they provide a
probability on which reasonable and prudent persons would act; we
do not examine the subjective beliefs of the arresting officers to deter-
mine whether they thought that the facts constituted probable cause.
See United States v. Han, 74 F.3d 537, 541 (4th Cir.), cert. denied,
___ U.S. ___, 64 U.S.L.W. 3807 (U.S. June 3, 1996) (No. 95-8891).
The determination of whether given facts amount to probable cause
is a legal one that we review de novo. See United States v. Wilhelm,
80 F.3d 116, 118 (4th Cir. 1996). Of course, the factual determina-

                     5
tions themselves are given deference. See United States v. Gray, ___
F.3d ___, No. 96-4617, 1998 WL 76243, at *3 (4th Cir. 1998).

As the district court noted in this case, it is undisputed that, from
the perspective of Marrero at the time of Gomez's arrest, Lucumi had
engaged in conversations with Marrero about consummating a drug
transaction over his cellular phone on the trip to Baltimore with
Gomez sitting next to him and Lucumi told Gomez to"open it"
around the same time that the secret compartment in the vehicle, con-
taining the drug purchase money, popped open. We find that these
undisputed facts provided the DEA agents with probable cause to
arrest Gomez. It is immaterial that the parties dispute: (1) whether
Lucumi had told Gomez and Zapata that he was driving to Baltimore
to sell the Oldsmobile, (2) whether Gomez accompanied Lucumi in
his capacity as a mechanic in case the vehicle developed mechanical
problems or in case it was necessary for Gomez to verify to the poten-
tial purchaser that proper servicing had been done, (3) whether
Gomez believed that Marrero was the person who was to buy the
vehicle, (4) whether Gomez had no prior knowledge of the contem-
plated cocaine transaction, (5) whether Gomez had no knowledge of
the hidden compartment or the money in the vehicle, (6) whether
Gomez believed that Lucumi was directing him to open the passenger
door when Lucumi said "open it," (7) whether Gomez opened the hid-
den compartment, or (8) whether Lucumi controlled the hidden com-
partment from the driver's side of the vehicle. It is also irrelevant that
Lucumi told the DEA agents after his arrest that Gomez was unaware
of the illegal purpose of the trip to Baltimore because the agents were
not obligated to credit Lucumi's statement. Thus, the claims Gomez
raises in this action are meritless and the district court correctly
granted summary judgment to the United States.

Accordingly, we affirm the district court's orders granting sum-
mary judgment to the United States, denying Gomez's motion for
summary judgment, and denying Gomez's Rule 59 motion.

AFFIRMED

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