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United States v. Colonia

decided: March 23, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
WILLIAM COLONIA AND FANNY ALVAREZ, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 376 -- Ilana D. Rovner, Judge.

Walter J. Cummings, Daniel a. Manion and Michael S. Kanne, Circuit Judges.

Author: Manion

MANION, Circuit Judge

William Colonia and Fanny Alvarez were arrested as a result of a Drug Enforcement Administration (DEA) surveillance in response to a tip concerning receipt of a large shipment of cocaine. They were convicted in a bench trial of having participated in conspiracy to possess and distribute cocaine and of possession with intent to distribute cocaine. We affirm.

I.

In early May 1987, a confidential informant advised the DEA that William Colonia would receive a shipment of cocaine, and that Fanny Alvarez was involved with Colonia in cocaine distribution. On May 18 DEA agents began surveillance of the vicinity of Colonia's residence. Early that afternoon Colonia and Alvarez exited a Chicago apartment located at 4941 North Wolcott Street, and entered a blue Buick. Followed by agents in separate cars, the Buick traveled a circuitous route until Colonia and Alvarez had reached a parked Oldsmobile. Colonia entered the Oldsmobile and drove off in tandem with Alvarez in the Buick, both driving in an evasive fashion. Colonia then parked the Oldsmobile and re-entered the Buick with Alvarez and returned to the apartment with her. An agent remained at the parked Oldsmobile. A trained narcotics detector dog brought to the car gave an alert for the presence of narcotics.

Later in the afternoon of May 18, Colonia and Alvarez departed the 4941 Wolcott Street address and entered a Pontiac. Agents who were advised of the positive alert to narcotics in the Oldsmobile followed and intercepted the Pontiac. Upon the agents' arrest of Alvarez and Colonia, Alvarez told them she was in the process of purchasing the Pontiac. She declared that she owned a Buick and that her family previously had owned an Oldsmobile. When arrested, Colonia possessed keys to the Oldsmobile he had driven earlier that afternoon.

Both defendants were handed a DEA form card with their Miranda rights printed in Spanish. After Alvarez had read it she passed it to Colonia. At the time of their arrest, a nonoperative mobile telephone was taken from Alvarez.

Alvarez was read and given a waiver of rights form which she refused to sign. The agents then told Alvarez they would obtain a search warrant for her 4941 North Wolcott Street residence. She at first refused to give consent to the search. She was concerned about her children, and asked how long it would be before the police would eventually leave her home. Only after learning that the delay could be several hours did she finally sign the form giving consent to search.

The agents found two children and a baby-sitter in Alvarez's apartment. They also found $19,620 in United States currency, an "OHAUS" Triple Beam Balance Scale under the bed, a Colombian passport in the name of Alvarez, bearing Alvarez's photo, and 1.3 net grams of cocaine atop the refrigerator. The stipulated facts show that Fanny Alvarez was a resident at 4941 North Wolcott Street; that at all times Alvarez leased her apartment she used the name "Olga Silva"; and that the $19,620 in currency included no denominations over $50 and included $16,240 in $20 bills.

In the meantime, a search warrant was obtained for the impounded Oldsmobile. A search of that automobile (the day after the apartment search) revealed cocaine.

Following their trial without a jury the district court, in a thorough and well-reasoned opinion, found Colonia and Alvarez guilty of participation in a conspiracy to possess and distribute cocaine, and of possession with intent to distribute cocaine. On November 10, 1987, both defendants were sentenced to five years incarceration on each of these two counts to be followed by four years of probation, the sentences of these two counts to run concurrently.

II.

A. Alvarez's Motion To Suppress Fruits Of Arrest

Appellant Alvarez asserts that the district court erred in denying her motion to suppress the fruits of her warrantless arrest when it found there had been probable cause for her arrest. The constitutional validity of a warrantless arrest, especially one involving an informant-auto search situation, depends upon the probable cause to effectuate the arrest under the totality of circumstances. Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983); cf. United States v. Benevento, 836 F.2d 60, 67 (2d Cir. 1987), cert. denied, 486 U.S. 1043, 108 S. Ct. 2035, 100 L. Ed. 2d 620 (1988). On review we will uphold the trial court's findings of fact determined after a ...


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