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United States v. Navarro

July 23, 1996

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

RAMON NAVARRO,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94 CR 165 Terence T. Evans, Judge.

Before BAUER, FLAUM and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED JANUARY 10, 1996

DECIDED JULY 23, 1996

When Ramon Navarro was arrested, law enforcement officers found three kilograms of cocaine in his truck. Later, they found thirty-six grams of cocaine in a baggie in his pocket and one ounce of cocaine and other drug paraphernalia at his farmhouse. He was convicted of conspiracy to distribute and to possess cocaine with the intent to distribute; he also was convicted of possession of cocaine. He now appeals the district court's denial of his motion to suppress, its admission of expert testimony at trial, and its denial of a reduction in his offense level under sec. 3B1.2 of the United States Sentencing Guidelines ("U.S.S.G."). As we explain in this opinion, we agree with the district court's rulings and therefore affirm its judgment.

I.

A. Facts

Ramon Navarro was born in California. However, because he was raised in Mexico until he was eleven and attended school only one and one-half years, he claimed that his comprehension of English was poor. Nevertheless, during his twenty-four years of employment with Abbott Laboratories in Chicago, he spoke both English and Spanish on the job. Mr. Navarro owned a farm in Kenosha, Wisconsin, on which he raised horses and farm animals. This farm became the focal point of the drug transaction that is at the core of this case and that led to Mr. Navarro's arrest.

Officer John Siarkiewicz, a twenty-five-year veteran with the Oak Creek Police Department, had been working with the Drug Enforcement Administration ("DEA") Task Force in Milwaukee for nineteen months when this case began to unfold. On October 28, 1994, a confidential informant ("CI") who had assisted the police in prior arrests and drug seizures told Officer Siarkiewicz that a man named Leonel Ruiz would be delivering cocaine in the Milwaukee area during the middle of the next week. According to the CI, Ruiz would leave his home in Waukegan, Illinois and would stop at a farm along the way to pick up the cocaine. Because Ruiz probably did not have a driver's license, the CI suggested that someone else might drive him to Milwaukee. Two other informants also had provided information about Ruiz's drug-dealing activities that was consistent with this CI's report.

A few days later, on November 1, 1994, the CI and Officer Siarkiewicz drove to Waukegan together. The CI identified Ruiz's house and red Nissan automobile; he also pointed out the Kenosha County farm where, he claimed, Ruiz's cocaine supply was located. It was later determined that the farm belonged to Ramon Navarro.

A surveillance team of DEA officers and police watched Ruiz's house on November 2, 1994, but observed nothing of significance. On November 3, 1994, the CI notified the Task Force that something would happen soon. Officer Siarkiewicz and other DEA agents took up surveillance positions near Ruiz's residence. Special Agent William C. Hehr, a DEA agent for twenty-three years, observed from a single-engine plane above the residence. Around noon, Ruiz and a woman came out of Ruiz's house; neither one was carrying anything. The woman opened the gate at the end of the driveway and Ruiz drove away, by himself, in the red Nissan. As both ground and aerial surveilling agents tracked his travel north toward Milwaukee, Ruiz drove through Kenosha County to the farm that the CI had identified as Ruiz's cocaine source. He was observed getting out of his car at the farm and entering the house; he then got back into his car and drove it to a nearby outbuilding. Agent Hehr observed from the air that two individuals stood next to the red car and then got into a black pickup truck and left the farm. The people in the truck were later identified as Ruiz and Navarro. The officer watched the truck drive north and pull into a service station. Picking up the surveillance, Officer Siarkiewicz followed the truck there in his car. At the service station Mr. Navarro's girlfriend, Brenda Wise, joined them and drove the truck toward Milwaukee.

The DEA officers previously had contacted Milwaukee County Deputy Sheriff Richard Angeles to advise him that a shipment of drugs might be transported into the county from the south on I-94. As the black pickup truck travelled toward Milwaukee, the agents apprised Deputies Angeles and Batchelder of the truck's route and progress. The agents instructed them to stop the truck after it entered Milwaukee County. Around 1:20 p.m., the deputies made the stop and asked the driver, Ms. Wise, for identification. Ms. Wise told them that she did not have her driver's license with her. However, she identified herself and introduced Mr. Navarro as the owner of the truck. The deputies returned to their squad car to verify this information; at that time the DEA agents instructed them to place the occupants of the truck under arrest.

The sheriff's deputies then arrested and handcuffed Ruiz and Mr. Navarro. Deputy Angeles told Mr. Navarro that he had received a tip that the truck contained narcotics and asked if he could look inside the pickup. Mr. Navarro gave his consent to search the truck. After placing the two men in the back of the squad car, the deputies searched the truck. Behind the seat of the pickup, Deputy Batchelder found a cardboard case, meant to hold twelve cans of beer, taped shut with duct tape. Inside the case was something wrapped in wax paper; it proved later to be three kilograms of cocaine. At that time, Agent Siarkiewicz arrived. He instructed the sheriff's deputies to transport Mr. Navarro, Ruiz and Wise to the DEA offices in Milwaukee for booking. When Mr. Navarro was patted down, agents found in his pocket a beeper and a baggie containing thirty-six grams of cocaine. Mr. Navarro claimed that Ruiz had given him the cocaine to hold at the moment the police were pulling the truck over to the side of the road.

Mr. Navarro was interviewed by Agent Siarkiewicz shortly thereafter. The DEA agent and Mr. Navarro gave different accounts of that interview. The agent testified that, when the interview commenced, he advised Mr. Navarro of his Miranda rights by reading each one from his advice-of-rights card. He explained that, after each right was read, Mr. Navarro responded that he understood; Mr. Navarro then agreed to waive his rights and to talk to the agent. Officer Siarkiewicz stated that he had no trouble communicating with Mr. Navarro. However, he noticed Mr. Navarro's Spanish accent and therefore offered to provide an interpreter. Mr. Navarro stated that he understood the agent and did not need an interpreter. Mr. Navarro then told the officer that he did not know about the cocaine found in his truck. When Agent Siarkiewicz later asked if officers could search Mr. Navarro's home, he explained that, if Navarro refused, he could seek a search warrant from a judge. Mr. Navarro gave the agent permission; furthermore, he read and signed a consentto-search form after Agent Hehr read the form to him. Agent Hehr described the atmosphere in the interview room as calm and relaxed and stated that he believed Mr. Navarro understood what the agents were saying. Agent Hehr also commented that Mr. Navarro reported that he had a gun in his house and asked whether that would be held against him.

Mr. Navarro's description of this interview was markedly different. He testified that he was not advised of his Miranda rights until the end of the interview and that he did not understand that he had the right to refuse to cooperate. He also testified that the agents shouted at him and that Officer Siarkiewicz told him that, if he did not tell the truth, he would be sentenced to ten to thirty years in prison.

Agents Siarkiewicz and Hehr took Mr. Navarro to the Waukesha County Jail that evening. After the defendant was fingerprinted, the agents mentioned to Mr. Navarro that the beer carton filled with cocaine was being examined in the police lab and that, if Mr. Navarro's fingerprints were found on the carton, it would look bad for him. At that point, Mr. Navarro changed his story. He explained that he had put the carton in the truck, behind the back seat, as Ruiz had requested; therefore, it was possible that his fingerprints would be on the twelve-pack, but he did not know what was in it. He also stated that the agents would find cocaine at his home because Ruiz had given Mr. Navarro an ounce of cocaine when he came to the farm that day. At trial, Mr. Navarro's explanation again changed. He testified that Ruiz had asked him to put duct tape on the end of the beer carton while they were at the farm, but that he had no idea that the carton contained cocaine. He also explained that Ruiz left cocaine at the farm because he did not want it with him when he travelled to Milwaukee.

In their search of Mr. Navarro's farm, the agents found in the master bedroom a scale and one ounce of cocaine in a boot in the closet, $5,000 in envelopes between the mattress and boxspring, a bottle of inositol on top of the dresser, and two handguns in a dresser drawer. In the entryway to the home, the officers found seven corner-cut plastic baggies. In the truck they found another bottle of inositol. The narcotics expert at trial, Chicago DEA Agent Robert Fanter, testified about the packaging, pricing and "tools of the trade" for cocaine trafficking; he explained, for example, the use of inositol, scales, weapons, beepers and corner-cut baggies. Mr. Navarro had explanations for the presence of those items in his home: The $5,000 was from the sale of a horse, the guns were being held for a boarder on the farm, the inositol was a vitamin supplement, and the scale was used to weigh chickens. The defendant also testified that he took Ruiz to Milwaukee because Ruiz needed a ride and because Mr. Navarro wanted to look at a wrecked car that Ms. Wise was considering buying to fix up. This testimony was different from his earlier explanation to Agent Siarkiewicz that he drove Ruiz because Ruiz's hand was in a cast and he was uncomfortable driving.

Mr. Navarro's girlfriend, Brenda Wise, also testified at trial. Her testimony concerning the events of November 3, 1993, conformed with that of Mr. Navarro. When asked whether she would consider Mr. Navarro to be fluent in English, she answered, "Not on big words." R.94 at 283. Both at trial and at the earlier suppression hearing, Ms. Wise made clear that she knew little Spanish and that she and Mr. Navarro communicated in English.

B. Judicial Decisions

Ramon Navarro was indicted on two counts: conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. sec. 846 and 18 U.S.C. sec. 2; and possession with intent to distribute cocaine, in violation of 21 U.S.C. sec. 841(a)(1) and 18 U.S.C. sec. 2. *fn1 In pretrial motions Mr. Navarro sought to suppress physical evidence and statements. He also moved for disclosure of certain evidence, including expert testimony, and of the identity of confidential informants. Following an evidentiary hearing on the motions, the magistrate judge issued a Report and Recommendation recommending that all Mr. Navarro's motions be denied. The magistrate judge found that Mr. Navarro had consented knowingly and voluntarily to a search of his property and that he voluntarily had waived his Miranda rights, thereby rendering his statements knowing and voluntary. In addition, because Mr. Navarro's counsel had stated that his motion and demand for disclosure were moot, the magistrate judge denied the motion as moot. The district court adopted the magistrate judge's Report and Recommendation in its entirety.

Mr. Navarro's jury trial began on February 7, 1995. After a three-day trial, the jury found Mr. Navarro guilty on both counts. On April 25, 1995, the district court sentenced Mr. Navarro to two seventy-eight-month terms of imprisonment to run concurrently, four years of supervised release, and a $2,900 fine. Mr. Navarro appeals the district court's denial of the motions to suppress evidence and statements, its admission of Agent Fanter's expert testimony at trial, and its denial of an offense level reduction for minimal or minor participation in the conspiracy under U.S.S.G. sec. 3B1.2.

II.

DISCUSSION

A. Pretrial Issue: Suppression of Evidence and Statements

Mr. Navarro submits that his Fourth and Fifth Amendment rights were violated by the law enforcement officers who initially stopped and searched his truck, interrogated him at the Milwaukee DEA office, and searched his farm. As a result, he asserts, all the evidence obtained directly from those acts, as well as any leads derived from the evidence found, should have been suppressed by the district court.

The district court's denial of Mr. Navarro's motion to suppress evidence from the stop and search of Mr. Navarro's truck was based upon its finding that probable cause existed to believe that Mr. Navarro's vehicle contained contraband. Our review of that determination is de novo.

[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996).

The Supreme Court stated that it is not possible to articulate a precise definition of "probable cause" or "reasonable suspicion" because they are "fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed," id. at 1661, but noted that probable cause exists "where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Id. (citing Brinegar v. United States, 338 U.S. 160, 175-76 (1949) and Illinois v. Gates, 462 U.S. 213, 238 (1983)). We defer to the findings of the district court with respect to matters of historical fact because that court had occasion to hear the witnesses and to observe their demeanor. United States v. Willis, 61 F.3d 526, 529 (7th Cir. 1995), cert. denied, __ S. Ct. __, 1996 WL 328292, 64 U.S.L.W. 3837 (U.S. June 17, 1996). "When there are two permissible views of the evidence, the fact-finder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 574 (1985).

1. The Initial Stop, Arrest and Search of Truck

Mr. Navarro first submits that the cocaine found in his truck should have been suppressed because the police lacked probable cause to stop and to search his truck and to arrest him. According to Mr. Navarro, the information given by the informants was scanty; moreover, it focused on Ruiz without naming Mr. Navarro or relating his involvement in Ruiz's drug trafficking activities. Mr. Navarro points out that there was no corroboration of the informant's claim that Ruiz did not have a driver's license and there was no observation of anyone putting a package with drugs into Mr. Navarro's truck or Ruiz's car. Mr. Navarro concedes that there are circumstances in which an anonymous tip would be sufficiently reliable to provide reasonable suspicion for an investigatory stop, but only, he insists, if the tip is corroborated by independent police work. Mr. Navarro's challenge thus focuses our attention on the reliability of the confidential informants' tips in this case and on the corroboration of that information by the DEA task force and other officers involved in the search and arrest.

a.

A vehicle may be stopped and searched without a warrant if there is probable cause to believe the vehicle contains contraband or other evidence of illegal activity. United States v. Young, 38 F.3d 338, 340 (7th Cir. 1994) (citing Carroll v. United States, 267 U.S. 132, 153-56 (1925)). The search of the vehicle may be "as thorough as a magistrate could authorize in a warrant 'particularly describing the place to be searched.' " United States v. Ross, 456 U.S. 798, 800 (1982). Probable cause exists if, under the totality of the circumstances, "including the 'veracity' and 'basis of knowledge' of persons supplying hearsay ...


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