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United States v. Lima

decided: April 27, 1987.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ALEJANDRO LIMA, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 86 CR 340, Susan Getzendanner, Judge.

Wood, Jr., Ripple, and Manion, Circuit Judges.

Author: Ripple

RIPPLE, Circuit Judge.

Alejandro Lima was convicted in district court of a number of federal offenses involving the possession of cocaine and firearms. In his written plea agreement, Lima reserved the right to appeal on the ground that the district court erroneously denied his pretrial motion to suppress certain evidence because it was the fruit of an unconstitutional arrest. We believe that the district court was correct in its determination that there was probable cause to arrest the defendant. Therefore the motion to suppress was properly denied and the judgment of conviction is affirmed.

I. Facts

At approximately 10:35 p.m. on April 28, 1982, Kevin Lane, an undercover agent with the Drug Enforcement Agency (DEA), met with Rudolfo Maceyras at a Chicago restaurant to negotiate a purchase of one pound of cocaine. Other DEA agents were on surveillance outside the restaurant. Inside, Maceyras received a telephone page, made a call, and then told Lane "his guy was on the way over." Shortly thereafter, Barbaro Montalvo joined Maceyras and Lane. Montalvo and Maceyras discussed "going to get the stuff." The three left the restaurant. Maceyras told Lane to follow in his car. Lane followed Maceyras and Montalvo, who were in Montalvo's car, to a park area along Lake Michigan. Very shortly after Montalvo parked there, an Oldsmobile, driven by defendant Lima, pulled up directly behind Montalvo's car. A third smaller car was parked on the other side of the street. By this time it was approximately 11:00 p.m. There were no other vehicles in the immediate vicinity.

Agent Lane was in radio contact with DEA Special Agent Wayne Kowalski. Lane described the cars to Kowalski, but did not say when they had arrived. Lane observed Maceyras and Montalvo get out of their car. He informed Agent Kowalski that one of them, later identified as Montalvo, went over to the driver's side of Lima's car, and that another man left the smaller car carrying a brown paper bag which he put into a phone booth nearby. Lane informed Kowalski that Maceyras was coming over to his (Lane's) car. There Maceyras told Lane that the cocaine was in the phone booth and that he wanted to see the money. After a brief discussion, Lane got out of his car and gave a prearranged arrest signal to the other DEA agents by opening his trunk.

At that point, several unmarked cars carrying DEA agents in plain clothes moved in to make the arrests. At least some of them were using flashing lights*fn1 and sirens. One of the agents, Nancy Colletti, shouted, "Police. You're under arrest." Lima, whose vehicle had been parked behind Montalvo's up to this point, drove away in reverse with no lights on. Agent Kowalski in one car, with flashing lights and siren, pursued him. Another agent followed in another car. Lima drove in reverse at speeds of up to 40 to 45 miles per hour for two blocks. At that point, he was blocked by the two DEA agents' cars. Lima's car then went forward and struck one of the agents' vehicles. As Lima left his car, Agent Kowalski saw a handgun on the front seat. Kowalski handcuffed Lima and went into the car to get the gun. There he found, in addition to the handgun, an assault rifle and ammunition.

Lima does not contest any of these facts. He claims, however, that the firearms, as well as certain statements that he made while in custody, should have been suppressed as fruits of an arrest made without probable cause.

II. Standard of Review

For purposes of review, this court must rely on the district court's factual findings unless they are clearly erroneous. United States v. Goudy, 792 F.2d 664, 668 (7th Cir. 1986). Review of the court's determination of probable cause, however, is de novo, and is conducted in light of the following standard:

The police have probable cause to arrest an individual where "the facts and circumstances within their knowledge and of which they [have] reasonable trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964); United States v. Jones, 696 F.2d 479, 486 (7th Cir. 1982), cert. denied, [462 U.S. 1106], 103 S. Ct. 2453, 77 L. Ed. 2d 1333 (1983). "Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 2335 n.13, 76 L. Ed. 2d 527 (1983). The determination of whether probable cause exists in a given situation involves "the factual, practical considerations of everyday life upon which reasonable, prudent [persons], not legal technicians act." United States v. Watson, 587 F.2d 365, 368 (7th Cir. 1978), cert. denied, Davis v. United States, 439 U.S. 1132, 99 S. Ct. 1055, 59 L. Ed. 2d 95 (1979).

Goudy, 792 F.2d at 668 (quoting United States v. Covelli, 738 F.2d 847, 853 (7th Cir.)), cert. denied, 469 U.S. 867, 105 S. ...


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