United States v. M. Velazquez-Rivera ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1185
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Melvin Luis Velazquez-Rivera, *
*
Defendant - Appellant. *
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Submitted: December 15, 2003
Filed: April 27, 2004
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Before WOLLMAN, JOHN R. GIBSON, and RILEY, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
Melvin Luis Velazquez-Rivera appeals from his conviction for conspiracy to
distribute 500 grams of cocaine and possession of one kilogram of cocaine with intent
to distribute it. He argues that police lacked probable cause to arrest him and
therefore the district court1 should have suppressed evidence seized from a Ford
pickup truck that was impounded upon Velazquez's arrest. He also contends that the
prosecution practiced race discrimination in using a peremptory strike on a
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
veniremember with a Hispanic surname. Finally, he contends that the district court
erred in admitting evidence that the reason police were surveilling a certain address
was that they had a tip from a confidential informant that there would be a drug
delivery at the address. We affirm the convictions.
The probable cause issue was decided after a suppression hearing, and we take
the facts from that hearing, as well as the fuller version given at trial. See United
States v. Corona-Chavez, 328 F.3d 974, 979 n.5 (8th Cir. 2003) ("This court
considers the entire record, including trial testimony, in reviewing denial of a motion
to suppress.") On March 25, 2002, Minneapolis police received a tip from a
confidential informant that a blue Ford pickup truck would deliver a load of cocaine
from Chicago to 3308 19th Avenue South in Minneapolis. One of the officers was
familiar with the address because he had participated in an undercover narcotics
transaction there. The police set up surveillance at the address. At 2:55 p.m. on
March 25, they saw a blue Ford pickup with Minnesota plates pull up behind the
apartment building at that address, with just one person in it. The driver, Miguel
Angel Montesino-Rivera,2 got out, walked up to the apartment building, and went
inside. Just then, police received a phone call from the confidential informant saying
that the truck had a large amount of cocaine in it. Montesino and Velazquez came out
of the building, drove the pickup to a McDonald's to eat, and returned to the
apartment at 19th Avenue South. Another man came out of the building, got in the
pickup, and left with Montesino and Velazquez. The police followed. The pickup
drove to 2323 16th Avenue South, where the third man went inside for a while; when
he came back, Velazquez and Montesino dropped him off at 3308 19th Avenue South
before going on their way. As police followed behind them, Velazquez turned around
and looked straight at the unmarked police car; after that, Montesino appeared to
realize that he was being followed and began driving faster and making sharp turns.
2
Because of the similarity of names between Montesino-Rivera and Velazquez-
Rivera, we will refer to them as Montesino and Velazquez.
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They drove to 5717 31st Avenue South, another apartment complex, parked in back,
and walked quickly to the building, with the police behind them yelling, "Police,
Narcotics, Stop." Montesino and Velazquez quickly unlocked the door and ran
inside. When police gained access to the building, they found Velazquez and
Montesino in the hallway, where Velazquez was doing something to his cell phone.
They later found a discarded memory chip from the cell phone in the hallway. Police
noticed that Velazquez had changed his shirt, and they found the old shirt discarded
in the hallway. They also found Montesino trying to throw the keys to apartment 201
under the door of apartment 215.
Police arrested Montesino and Velazquez. They then impounded the pickup
and conducted an inventory search, finding more than a kilogram of cocaine inside.
They obtained a warrant to search apartment 201, where they found cocaine and drug
paraphernalia.
Velazquez moved to suppress the evidence found in the truck and the
apartment, contending that those searches resulted from his arrest, for which police
did not have probable cause. The magistrate judge3 to whom the motion was referred
concluded that there was probable cause to arrest Velazquez consisting of the
following: the tip from the informant that a truck loaded with cocaine would arrive
at the 19th Avenue South location, which was corroborated when the truck arrived
as predicted and the informant called at the same time to say the truck was arriving;
Montesino's evasive driving maneuvers after he and Velazquez appeared to realize
they were being followed by the police car; and Velazquez's discarding his black t-
shirt while the police were trying to get into the building at 31st Street. The district
court conducted a de novo review of the magistrate's report and accepted the
recommendation to deny the motion to suppress.
3
Magistrate Judge Arthur J. Boylan of the District of Minnesota.
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I.
Velazquez contends that the motion to suppress should have been granted
because there was not probable cause to arrest him and the searches followed from
the arrest. On appeal of the denial of a motion to suppress evidence, we review the
district court's findings of fact under the clear error standard and we conduct de novo
review of its conclusions of law. United States v. Corona-Chavez, 328 F.3d 974, 978
(8th Cir. 2003). The existence of probable cause is a mixed question of fact and law
reviewed de novo. Ornelas v. United States, 517 U.S. 690, 696-99 (1996). Probable
cause to make a warrantless arrest exists when, considering all the circumstances,
police have trustworthy information that would lead a prudent person to believe that
the suspect has committed or is committing a crime. United States v. Hartje, 251 F.3d
771, 775 (8th Cir. 2001).
The facts that support a conclusion of probable cause include those cited by the
magistrate judge: the tip from the confidential informant that was corroborated before
the police officers' eyes when the truck pulled up where the informant said it would
and the informant called simultaneously to confirm that fact, see United States v.
Sherrill, 27 F.3d 344, 347 (8th Cir. 1994) (informant's tip was factor supporting
probable cause where tip corroborated by police investigation); Montesino and
Velazquez's apparent attempts to elude the police by evasive driving; and Velazquez's
discarding of his t-shirt in an apparent attempt to disguise himself. Added to this list
are the facts that one officer had personal knowledge that drugs were being traded at
the South 16th address; Velazquez and Montesino hurried into the 31st Street
apartment with the police yelling for them to stop; Velazquez removed and threw
away the memory chip from his cell phone; and Montesino threw the keys to
apartment 201 under the door of apartment 215 as the police were forcing their way
into the building. Cf. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (flight is factor
that, together with other factors, supports conclusion of reasonable suspicion); United
States v. Schaafsma, 318 F.3d 718, 722 (7th Cir. 2003) (flight contributed to probable
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cause); United States v. Wadley, 59 F.3d 510, 510-12 (5th Cir. 1995) (same); United
States v. Dotson, 49 F.3d 227, 231 (6th Cir. 1995) (same).
As a counterweight to all these facts, Velazquez argues that the confidential
informant was not shown to be reliable because the informant indicated that the truck
would be blue, whereas one police report stated that the truck that actually pulled up
to the apartment was green; the informant did not give the license plate of the truck;
and the truck had Minnesota plates, whereas the informant said the cocaine was from
Illinois. None of these discrepancies is material. The truck was apparently a color
that could be called blue, since the witnesses at trial described it as blue, even as they
were viewing a photograph of the truck. A license plate number is not necessary for
the informant's tip to be considered reliable, especially in light of other corroboration
of the tip. Finally, a truck with Minnesota plates could have come from Illinois, so
the final discrepancy is no discrepancy at all.
Velazquez also argues that his presence as a passenger in a truck that was
believed to be hauling cocaine does not create probable cause that he possessed or
conspired to possess or distribute the cocaine, citing United States v. Di Re, 332 U.S.
581 (1948). In Maryland v. Pringle, 124 S. Ct. 795, 802 (2003), the Supreme Court
held that presence as a passenger in a car carrying drugs and $763 established
probable cause to arrest the passenger, where no one in the car offered any
information about the ownership of the drugs or money; the Court distinguished Di
Re on the ground that in Di Re the government had information linking one of the
other passengers in the car to the contraband, whereas in Pringle there was no
information as to who among the three passengers owned the contraband. 124 S. Ct.
at 801. In this case, no one clarified who owned the drugs in the truck because both
occupants fled from the truck to the house without stopping to talk to the police.
Thus, Velazquez's presence in a truck police reasonably (and accurately) suspected
was carrying commercial quantities of cocaine was an important factor in giving the
police probable cause to arrest him.
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Moreover, other facts in addition to presence in the truck combined to create
probable cause to arrest Velazquez. One officer had personal knowledge that the
South 16th address was being used for drug transactions. Velazquez appeared to be
actively involved in eluding police, both while in the truck, and then while fleeing
into the apartment while police were shouting and chasing him. Velazquez tried to
disguise himself by changing out of the black t-shirt, he tried to dispose of the
memory chip in his cell phone, and his companion Montesino threw the keys to
apartment 201 under someone else's door. This evidence is sufficient to show that
police had probable cause to arrest Velazquez.
II.
Velazquez contends that the district court failed to conduct a proper Batson v.
Kentucky, 476 U.S. 79 (1986), inquiry into the prosecution's peremptory strike of
venirewoman Vickie Ramirez. Velazquez contends that the district court did not
allow him to prove that the nondiscriminatory reasons offered by the prosecution for
its decision to strike Ms. Ramirez were pretextual and that the district court failed to
make a finding on this issue. Our review of the record disproves both of these
contentions.
Under Batson, a party who opposes a peremptory strike may make a prima
facie case of discrimination by showing that the circumstances support an inference
that a peremptory challenge was based on race discrimination. U.S. Xpress Enters.,
Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809, 812-13 (8th Cir. 2003). If the objecting
party makes a prima facie case, the proponent of the strike must give a
nondiscriminatory explanation for the strike. Id. The district court then must decide
the ultimate question of whether there was purposeful discrimination. Elmahdi v.
Marriott Hotel Servs., Inc., 339 F.3d 645, 651 (8th Cir. 2003); Hall v. Luebbers, 341
F.3d 706, 713 (8th Cir. 2003). Since the district court's findings will largely turn on
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credibility, we should give those findings "great deference." Batson, 476 U.S. at 98
n. 21; Elmahdi, 339 F.3d at 651 (reviewing district court's findings for clear error).
The record shows every step was observed in due order. Velazquez's counsel
objected to the striking of Ms. Ramirez, stating that although counsel did not know
if Ms. Ramirez was of Hispanic origin, she had a Hispanic surname. The prosecutor
expressed doubt as to whether striking someone with a Hispanic surname established
a prima facie case under Batson, but he nevertheless proceeded to the second step.
He stated that he struck Ms. Ramirez because she was a nurse and he followed a rule
of striking teachers and nurses; that she was highly educated and therefore might
dominate the jury; and that she appeared particularly kind and sympathetic, qualities
he considered undesirable in a juror. He also mentioned that he had also stricken a
nursing assistant who did not fall into a protected category under Batson. The court
asked Velazquez's counsel, "Anything else, Mr. Gray?" and counsel replied, "Her
name is Ramirez and she got struck." The court ruled:
Well, I'm going to overrule the objection on the Baton [sic] challenge.
I don't think you made a showing that the striking was for other than
legitimate reasons, and I'm satisfied with the Government's explanation
for the strike is sufficient to take it out from under Baton [sic].
Assuming without deciding that Velazquez made a prima facie case of Batson
discrimination, the record establishes that Velazquez was given the opportunity to
develop the record and the district court made findings that the government's
proffered nondiscriminatory reasons were genuine. The district court's findings were
not clearly erroneous. The Batson argument has no merit.
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III.
Velazquez contends that the district court erred in admitting testimony that the
police set up surveillance at 3308 19th Avenue South because they had an informant's
tip that drugs were about to be delivered there.
We review the district court's admission of evidence for abuse of discretion.
United States v. Brown, 110 F.3d 605, 609 (8th Cir. 1997). Even if the district court
erred in admitting the evidence, we will not reverse if the admission of the evidence
was harmless. Id.
An out-of-court statement used to explain why police took a certain action in
their investigation is not hearsay. United States v. Beck, 122 F.3d 676, 682 (8th Cir.
1997); United States v. King, 36 F.3d 728, 732 (8th Cir 1994). The testimony
explaining how the police came to be surveilling the 19th Avenue address is therefore
not hearsay.
Velazquez's brief essentially concedes as much, but contends that the district
court erred in failing to give a limiting instruction. We review for abuse of discretion
the district court's decision about whether to give a limiting instruction, United States
v. Wells, 347 F.3d 280, 286 (8th Cir. 2003), and we will not reverse if the denial of
the instruction was harmless, see King, 36 F.3d at 732-33.
The testimony did not name or describe Velazquez. Velazquez was not the
driver of the truck the informant predicted would arrive at 19th Avenue. The
informant's statement, even if taken for its truth, would only establish that the truck
had drugs in it, a fact which was established at trial far more directly by the evidence
that police found cocaine inside the truck. Although it is desirable to give a limiting
instruction when testimony is admitted for a limited purpose, see United States v.
Chapman, 345 F.3d 630, 633 (8th Cir. 2003), cert. denied, No. 03-8948, 2004 WL
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322686 (March 22, 2004), in light of the strong evidence that a truck carrying drugs
did indeed arrive at the 19th Avenue address and the fact that the informant's
statement did not inculpate Velazquez, we perceive neither an abuse of discretion nor
harm from the failure to give a limiting instruction.
We affirm Velazquez's convictions.
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