United States v. Hosvaldo Lopez

482 F.3d 1067 UNITED STATES of America, Plaintiff-Appellee, v. Hosvaldo LOPEZ, Defendant-Appellant. No. 05-30347. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 5, 2006. Filed March 12, 2007. 1 Bryan E. Lessley, Office of the Federal Public Defender, Eugene, OR, for the appellant. 2 Kelly A. Zusman (argued), Charles W. Stuckey (on the brief), and Karin J. Immergut, Office of the United States Attorney, Portland, OR, for the appellee. 3 Appeal from the United States District Court for the District of Oregon; Garr M. King, District Judge, Presiding. D.C. No. CR-04-114-KI. 4 Before W. FLETCHER, and JOHN T. NOONAN, Circuit Judges, and LOUIS H. POLLAK, * District Judge. 5 Opinion by Judge POLLAK; Concurrence by Judge NOONAN. OPINION 6 POLLAK, District Judge. 7 In February 2005, the District Court of Oregon denied defendant Hosvaldo Lopez's pretrial motion to suppress evidence found in his car. Lopez subsequently pled guilty to possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841 (a), but reserved the right to appeal the denial of his motion to suppress. He was sentenced to a term of incarceration of 135 months. He now timely…

Opinion by Judge POLLAK; Concurrence by Judge NOONAN.

OPINION

In February 2005, the District Court of Oregon denied defendant Hosvaldo Lopez’s pretrial motion to suppress evidence found in his car. Lopez subsequently pled guilty to possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841 (a), but reserved the right to appeal the denial of his motion to suppress. He was sentenced to a term of incarceration of 135 months. He now timely appeals from the denial of his pretrial motion to suppress evidence and his resulting conviction. Because we conclude that the police had probable cause to arrest Lopez as an accessory to another crime, and, while in custody, Lopez voluntarily consented to a search of his car, we affirm the District Court’s denial of the motion to suppress and the resulting conviction and sentence.

I.

At a quarter past noon on March 4, 2004, while two law enforcement officers— members of the West Side Interagency Narcotics Team — were interviewing a witness in a narcotics investigation in the front yard of a residence in Hillsboro, Washington County, Oregon, a man drove up, got out of his car and began to approach the group. The…

concurring in the judgment:

What the police knew was that Lopez was not the registered owner of the Ford Focus whose rescue he had aided and whose driver he had then taken steps to follow. What would these facts suggest to a reasonable police officer? The police knew that the gunman had engaged in a desperate enterprise — an attempt to break up a police investigation by directing deadly force at the police themselves. Would such a criminal have used his own car? Not likely. That Lopez didn’t own the Ford Focus didn’t help him a bit. In terms of diluting probable cause it was a zero, just as his submissive behavior was a zero.

What might have dissipated probable cause was a plausible explanation by Lopez of why he engaged in the rescue of the Ford Focus. At the suppression hearing, he offered no less than two accounts of why he dropped off the lady with the keys to the Ford Focus and why he followed her out of the parking lot. The record is barren of evidence that he offered these explanations to the police at the time of his arrest. Lopez’s failure to give an innocent connection with the car must have loomed large in the mind of the police. Only an unreasonably slack officer…