United States v. Pedro Prieto-Villa

910 F.2d 601 UNITED STATES of America, Plaintiff-Appellee, v. Pedro PRIETO-VILLA, Defendant-Appellant. No. 89-50150. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 4, 1989. Decided Aug. 6, 1990. Michael D. Abzug, Los Angeles, Cal., for defendant-appellant. Patrick K. O'Toole, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before BROWNING, FERGUSON and BOOCHEVER, Circuit Judges. FERGUSON, Circuit Judge: 1 Pedro Prieto-Villa was arrested when police encountered him in an apartment they visited and searched in the course of an investigation into a drug-smuggling conspiracy. Prieto entered a conditional plea of guilty to possession of cocaine with intent to distribute. He appeals the district court's denial of his motion to suppress the cocaine found on his person and his post-arrest statements, and the computation of his sentence under the Sentencing Guidelines. Codefendants Alfredo Apodaca Villegas, who was also arrested in the apartment, and Gabriel Salas-Moreno, who was arrested a day earlier at the border, have appealed their convictions, and the judgment of…

Pedro Prieto-Villa was arrested when police encountered him in an apartment they visited and searched in the course of an investigation into a drug-smuggling conspiracy. Prieto entered a conditional plea of guilty to possession of cocaine with intent to distribute. He appeals the district court’s denial of his motion to suppress the cocaine found on his person and his post-arrest statements, and the computation of his sentence under the Sentencing Guidelines. Codefendants Alfredo Apodaca Villegas, who was also arrested in the apartment, and Gabriel Salas-Moreno, who was arrested a day earlier at the border, have appealed their convictions, and the judgment of the district court with regard to them has been affirmed by an unpublished memorandum disposition of this court.

After the suppression hearing, the district court issued an order which stated that there was probable cause for the arrest of Prieto but which made no factual findings regarding the circumstances which gave rise to this conclusion. Federal Rule of Criminal Procedure 12(e) requires the judge to state his essential findings on the record. The determination of probable cause to arrest is heavily dependent on the…

concurring:

I do not read the majority opinion as ruling out the admissibility of the cocaine *611 found on Prieto under the inevitable discovery doctrine. If the officers had reasonable suspicion permitting a Terry stop and did not perform a pat-down search prior to Prieto’s arrest, and if the vial of cocaine would have been discovered inevitably during a pat-down search for weapons, the evidence need not be suppressed. See United States v. Andrade, 784 F.2d 1431 , 1433 & n. 3 (9th Cir.1986) (where government shows by a preponderance of the evidence that cocaine discovered pursuant to an illegal search would have been discovered inevitably during a routine DEA inventory search, cocaine was properly admitted).