United States v. Griego , 94 F. App'x 781 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 12 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 03-2249
vs. (D.C. No. CR-02-1590-WPJ)
(D.N.M.)
RENALDO R. GRIEGO,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.
Defendant-Appellant Reynaldo R. Griego was charged by indictment with
one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). He moved to suppress the gun, which officers found in a
search subsequent to his arrest, on the ground that officers lacked probable cause
to arrest him. After a suppression hearing, the district court denied the motion.
Mr. Griego pleaded guilty to the indictment, reserving his right to appeal the
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
denial of his suppression motion. He was sentenced to a term of 51 months
imprisonment with a three-year term of supervised release. We have jurisdiction
over this case under 18 U.S.C. § 3731. We affirm.
Background
On September 6, 2001, Albuquerque police officers John Corvino and
Jonathan Sather were patrolling the southeast quadrant of the city. Officer
Corvino had been a police officer for 16 years and Officer Sather was in training.
At approximately 10:30 a.m., as they drove by a building at 4117 Silver SE, they
saw several persons standing inside or near the doorway of a building. There
were several “No Trespassing” signs posted on the building, including one on the
front door, one on the flashing above the door, and two on the west side of the
building between the building and a methadone clinic next door. The officers told
the individuals to leave the area.
Later that day, between 12:30 and 1:00 p.m., Officers Sather and Corvino
again drove past the buiding at 4117 Silver. They saw two of the same people
whom they had seen earlier that day outside the building. These two men were
Defendant Griego and one Jonathan King. Mr. Griego and Mr. King were next to
the “No Trespassing” sign on the front door of the building–King was sitting in
the doorway and Griego was standing next to him, leaning against the building.
-2-
Officer Corvino testified that Mr. Griego and Mr. King were not on the city
sidewalk but in the entranceway to the building. The entranceway is paved in
concrete and is adjacent to an asphalt area that borders the street. According to
Officer Corvino, the entranceway was on private property.
The officers asked the men for identification. A computer check indicated
that Mr. King had given different names and birth dates in prior encounters with
police officers. Officer Corvino decided to arrest Mr. Griego and Mr. King
because they were not conducting business on the property, which was clearly
posted with “No Trespassing” signs, and because the officers had previously
given the men a verbal warning not to loiter in front of the building.
The officers told Mr. Griego and Mr. King that they were under arrest for
criminal trespass. Officer Corvino handcuffed Mr. Griego, patted him down, and
took from him a brown paper bag. Inside the bag, Officer Corvino found drug
paraphernalia and a loaded .22 caliber revolver.
Discussion
Mr. Griego argues on appeal that the district court wrongly denied his
motion to suppress evidence because it erred in making its factual findings and in
deciding that the officers had probable cause to arrest him. In reviewing a district
court’s denial of a motion to suppress evidence, this court reviews the district
-3-
court’s factual findings for clear error, considering the evidence in the light most
favorable to the government. United States v. Rice, 358 F.3d 1268, 1273 (10th
Cir. 2004). The ultimate determination of whether probable cause to arrest
existed is a legal issue that we review de novo. United States v. Edwards, 242
F.3d 928, 933 (10th Cir. 2003).
A. Findings of Fact
Mr. Griego argues that the district court erred in finding (1) that he was
standing in the doorway of the building under the awning at the time of his arrest,
and (2) that the concrete entranceway on which he was standing was private
property.
A district court’s finding of fact is clearly erroneous if on a review of the
evidence as a whole we are “left with the definite and firm conviction that a
mistake has been committed.” United States v. Castorena-Jaime, 285 F.3d 916,
924 (10th Cir. 2002). Even our belief that we, as the trier of fact, would have
come out differently based on the evidentiary record before us is not enough to
disturb the district court’s findings. Anderson v. City of Bessemer City, 470 U.S.
564, 573-74 (1985). As long as the “district court’s account of the evidence is
plausible in light of the record viewed in its entirety,” we will not reverse. Id. at
574. Likewise, “[w]here there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” Id.-4-
The evidence that Mr. Griego was standing in the doorway of the building
under the awning precludes a ruling that the district court’s finding was clearly
erroneous. Mr. Griego’s only significant argument is that the doorway was quite
small, and that if Mr. King were standing therein, Mr. Griego would not have
been able to fit. Officer Corvino, however, testified that Mr. Griego and Mr.
King were standing next to each other in the doorway of the building. III R. at
41-42, 46-47. The district court found his testimony credible. Id. at 126. Its
finding is not clearly erroneous.
Moreover, we agree with the district court that even if Mr. Griego were not
standing in the doorway, but in front of the building’s windows, he would still be
on private property. See id. at 126. There was ample evidence before the district
court to support a finding that the concrete area on which Mr. Griego was
standing was private property and not part of the sidewalk. As the district court
noted, if the sidewalk were to run in a straight line parallel to the street,
maintaining the same width as it did in front of the methadone clinic next door,
the concrete entrance area would not be part of the sidewalk. Id. at 107.
Moreover, Officer Covino testified that the entrance area was private property.
Id. at 55. After reviewing photographs of the vicinity submitted by Mr. Griego,
we cannot say the district court’s finding was clearly erroneous.
-5-
B. Probable Cause to Arrest
Probable cause to arrest exists only when the “facts and circumstances
within the arresting officer’s knowledge and of which he or she has reasonably
trustworthy information are sufficient to lead a prudent person to believe that the
arrestee has committed or is committing an offense.” Romero v. Fay, 45 F.3d
1472, 1476 (10th Cir. 1995). Although “[p]robable cause does not require facts
sufficient for a finding of guilt . . . , it does require more than mere suspicion.”
United States v. Morris, 247 F.3d 1080, 1088 (10th Cir. 2001).
Probable cause is measured against an objective standard. Beck v. Ohio,
379 U.S. 89, 96 (1964). The subjective belief of an individual officer as to
whether there was probable cause for making an arrest is not dispositive. Florida
v. Royer, 460 U.S. 491, 507 (1983); United States v. Treto-Haro, 287 F.3d 1000,
1006 (10th Cir. 2002). Thus, the primary concern is “whether a reasonable
officer would have believed that probable cause existed to arrest the defendant
based on the information possessed by the arresting officer.” Olsen v. Layton
Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (internal quotation marks and
alterations omitted).
Mr. Griego argues that Officer Corvino did not have probable cause to
arrest him for criminal trespass. New Mexico law defines criminal trespass as
“knowingly entering or remaining upon posted private property without
-6-
possessing written permission from the owner or person in control of the land.”
N.M. Stat. Ann. § 30-14-1(A).
Mr. Griego is correct to note that the New Mexico criminal statute requires
as an element that the intruder know that his act was unlawful. Exploiting this
requirement, Mr. Griego argues that (1) while the officers told Mr. Griego to
move on and leave the area, they did not inform him that he was standing on
private property; and (2) the posted “No Trespassing” signs only informed Mr.
Griego that entry into the building was prohibited, but not that standing in front
of the building was also prohibited. As noted above, however, probable cause
does not require facts sufficient for a finding of guilt. We are only concerned
with whether the facts and circumstances would lead a reasonably prudent person
to believe that the Mr. Griego was committing a criminal trespass. Thus, the
relevant probable cause inquiry on the question of notice is whether a reasonable
person in Officer Corvino’s position had reasonable grounds to believe that Mr.
Griego received the notice, not whether Mr. Griego believed such notice had been
given. See United States v. Kincaid, 212 F.3d 1025, 1029 (7th Cir. 2000).
A reasonable person in Officer Corvino’s position could infer that Mr.
Griego had notice. “No Trespassing” signs were posted in the area in which Mr.
Griego was standing. Officer Corvino had asked Mr. Griego and the other people
who were loitering in the area to leave, directing their attention to the “No
-7-
Trespassing” signs. Upon seeing Mr. Griego in the building’s entrance area
again, then, Officer Corvino had reason to believe that Mr. Griego was standing
on private property, that he knew it was private property, and that he had no
permission to be there. Officer Corvino’s arrest of Mr. Griego and subsequent
search of him did not violate the Fourth Amendment.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-8-