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The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-1204

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United States of America,

Appellee,

v.

Pedro Enrique Traveasa Oropesa,

Appellant.

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Appeal from the United States

District Court for the

Western District of Missouri.

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Submitted: September 10, 2002

 Filed: January 14, 2003

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Before HANSEN, Chief Judge, RICHARD S. ARNOLD and LOKEN, Circuit Judges.

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HANSEN, Circuit Judge.

Pedro Enrique Traveasa Oropesa appeals the district court's1

 denial of his

motion to suppress evidence following his conditional guilty plea to being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 924(a)(2) & 922(g). We affirm

the district court's denial of Oropesa's motion to suppress.
2

I.

The Kansas City Police Department first learned about Oropesa's drug

activities from Ulises Pomel, who was arrested for drug-related charges in February

2000. Pomel informed Detectives Terence Carter and Gary Gibson that he purchased

one to two ounces of cocaine per week from an individual he knew as "Pedro," who

sold drugs from an automotive garage across from the police station on Linwood and

Troost in Kansas City, Missouri. Pomel told the detectives that he had seen large

quantities of cocaine and marijuana at the shop, which he described as a front for

narcotics distribution as no automobiles were actually worked on at the shop. Pomel

described how drugs were delivered to the shop and seeing other people sell drugs

from the shop for Pedro. Pomel directed Detective Gibson to Pedro's residence on

the corner of 45th and South Park. 

Lamar Brooks was arrested on March 14, 2001, on drug-related charges and

agreed to cooperate with the Kansas City Police Department. Brooks informed a

detective that his drug source was an individual named "Pedro," who resided at 4501

South Park in Kansas City and that Brooks purchased one to two kilograms of

cocaine from Pedro on a daily basis either from Pedro's residence or from an

automotive repair shop located at Linwood and Troost. Brooks stated that the 500

grams of powder cocaine and 280 grams of crack cocaine in his possession when he

was arrested had been purchased from Pedro that same day. Brooks also told the

detective about another supplier, Guadalupe Acosta, and agreed to order two

kilograms of cocaine from Acosta in a controlled buy. On March 22, 2001, Acosta

and two others were arrested while attempting to deliver cocaine to Brooks. 

On April 3, 2001, a detective with the Drug Enforcement Agency Task Force

contacted Detective Carter about an informant who claimed to know about drug sales

by an individual referred to as "Ki Ki," who sold drugs from a residence at 4501

South Park as well as from an automotive repair shop located at Linwood and Troost.
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The source claimed that he/she had purchased ounce-quantities of cocaine from Ki

Ki for the last several years. The source also claimed to have seen kilogramquantities of cocaine at both locations.

The detectives taped a conversation between Brooks and Oropesa on April 3,

2001, during which Brooks asked Oropesa about purchasing powder cocaine.

Oropesa told Brooks that he would have to call back the next day because "things

would be straight" then. (Appellant's Add. 5, Affidavit/Application for Search

Warrant at 3.) Brooks took this to mean that Pedro was about to receive a shipment

of cocaine. The next day, the detectives ran a computer check on 4501 South Park

and confirmed that Oropesa resided there. They showed Brooks a photograph of

Oropesa obtained from police files. Brooks identified the man in the photograph as

Pedro. He also identified photographs of the house located at 4501 South Park and

the automotive repair shop as the locations from which he had purchased cocaine

over the past eight months. 

Based on the information received from Brooks and the April 3 taped telephone

conversation, Detective Carter filed an Affidavit/Application for Search Warrant on

April 4, 2001, swearing to the facts stated above and indicating that Brooks had

proven reliable in other narcotics investigations. A Jackson County, Missouri,

Associate Circuit Judge issued the search warrant the same day, authorizing the

search of Oropesa's residence and automotive shop for a period of ten days from the

date of issuance. Between April 3 and April 12, detectives taped several telephone

conversations between Brooks and Oropesa as Brooks attempted to obtain two

kilograms of cocaine from Oropesa. Although the drugs were never discussed by

name, Oropesa informed Brooks on April 11 that he had gotten rid of his supply to

others because he was unable to reach Brooks but that he would make a call to try to

get some more. When Brooks called back on April 12 to see if Oropesa had the

cocaine, Oropesa told him to stop by the shop to talk about it. Brooks told Detective

Carter that he thought this meant that Oropesa either had the drugs or soon would
2

The Honorable Sarah Hayes, United States Magistrate Judge for the Western

District of Missouri.

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have them because in the past, other people sometimes delivered the drugs to Oropesa

soon after Brooks arrived for his purchase.

Following the April 12 taped call, Kansas City police executed the search

warrant at Oropesa's residence and business. Detective Gibson arrested Oropesa, who

was at the business when the search warrant was executed. Detective Gibson told

Oropesa that he had a search warrant for his business and recited to Oropesa his

Miranda rights. Oropesa was taken to the police station, where he was read his

Miranda rights in Spanish, and he told detectives that he owned a 9mm pistol, which

he kept under his bed for protection. No drugs or paraphernalia were found at either

search location, but a 9mm semi-automatic pistol was found under a bed at the

residence.

Oropesa was charged with conspiring to distribute cocaine and being a felon

in possession of a firearm. Oropesa moved to suppress both the evidence obtained

from the searches and the statements that he made following his arrest, arguing that

the search warrant and his arrest were both invalid. The district court adopted the

report and recommendation of the magistrate judge,2

 who held an evidentiary hearing

and recommended denying the motion. Oropesa pleaded guilty to the felon-inpossession charge, conditioned on his right to appeal the denial of his motion to

suppress. The drug charge was dismissed. 

II.

Oropesa argues that the evidence seized from his residence, including the gun,

should be suppressed because the search warrant was invalid as lacking probable

cause. We review the district court's factual findings supporting its denial of a
3

More recently, the Supreme Court explained the different standards of review

to be applied to probable cause determinations between cases involving warrantless

searches, which are reviewed de novo, and cases in which a search is conducted

pursuant to a warrant, which are given deference. See Ornelas v. United States, 517

U.S. 690, 698-99 (1996) . "The Fourth Amendment demonstrates a strong preference

for searches conducted pursuant to a warrant, and the police are more likely to use the

warrant process if the scrutiny applied to a magistrate's probable-cause determination

to issue a warrant is less than that for warrantless searches." Id. at 699 (internal

quotation and citation omitted).

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motion to suppress evidence for clear error, and we review its legal conclusions de

novo. United States v. Terry, 305 F.3d 818, 822 (8th Cir. 2002). Ultimately,

however, we are reviewing the state associate circuit judge's determination that

probable cause existed to issue the warrant, a determination to which we give "great

deference." Illinois v. Gates, 462 U.S. 213, 236, 238-39 (1983) ("[T]he duty of a

reviewing court is simply to ensure that the magistrate had a 'substantial basis for .

. . conclud[ing]' that probable cause existed." (citing Jones v. United States, 362 U.S.

257, 271 (1960)) (alterations in original)).3

 The issuing judge's task in turn "is simply

to make a practical, common-sense decision whether, given all the circumstances set

forth in the affidavit, . . . there is a fair probability that contraband or evidence of a

crime will be found in a particular place." Gates, 462 U.S. at 238. Whether probable

cause exists depends upon the totality of the circumstances. Id.

Oropesa argues that the affidavit was false to the extent that it indicated that

a shipment of cocaine was on its way to Oropesa because the statement "things would

be straight" was never stated in the April 3 recorded telephone conversation. He

argues that the affidavit was also misleading because Detective Carter testified at the

suppression hearing that "'[d]rugs could or could not be there,'" (Appellant's Br. at 22

(citing Suppression Hrg. Tr. at 70, ll. 1-8)), but Detective Carter did not include this

information in the affidavit. Oropesa argues that without the false information, and

considering the omitted misleading information, the affidavit contained only stale

information and that there was nothing in the affidavit from which the court could
4

Detective Carter actually testified that Brooks told him that the drug shipment

"could be there or it could be on the way." (Suppression Hrg. Tr. at 70, l. 3.)

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have concluded that drugs were present at Oropesa's residence at the time of the

warrant application.

First, we dismiss the notion that the failure to include Detective Carter's alleged

belief that "[d]rugs could or could not be there" made the affidavit misleading. The

appellant's quotation is inaccurate,4

 and the referenced testimony involved a

conversation between Detective Carter and Brooks that occurred on April 12, after

the warrant was issued on April 4. Whether Detective Carter was unsure whether

drugs would be present on April 12 when the warrant was executed is irrelevant to

whether he believed on April 4, when he applied for the warrant, that drugs would be

present. Excluding reference to a conversation that had not yet taken place did not

make Detective Carter's affidavit misleading. 

We also believe that the affidavit did not contain false statements. During the

evidentiary hearing on Oropesa's motion to suppress, Detective Carter testified that

although the phrase "things would be straight" was not heard in the recording,

portions of the recorded conversation were inaudible, and Brooks told Detective

Carter that the statement was made. (Appellee's Add., Report and Recomm. at 11.)

The magistrate judge found Detective Carter's testimony credible. Oropesa offered

no evidence to support his assertion that the statement was not made, other than the

fact that it was not recorded. Given the deference we accord the district court's

factual findings, particularly as to witness credibility, see Terry, 305 F.3d at 822, we

will not disturb the court's finding that Oropesa told Brooks that "things would be

straight" the next day.

Oropesa next argues that even considering all of the information contained in

the affidavit, there were insufficient facts from which the issuing court could
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conclude that drugs would probably be present at his home and business.

Summarizing, the affidavit stated that Brooks, a reliable informant, had identified

Oropesa from a photo; that Brooks named Oropesa as the source of 500 grams of

powder cocaine and 280 grams of crack cocaine that Brooks had purchased three

weeks prior to the date of the warrant application; that Brooks told officers he had

made regular purchases of kilogram-quantities of cocaine from Oropesa over the

previous eight months; that Detective Carter first learned of Oropesa from another

informant who had named Oropesa as his source one year prior to the warrant

application, and that the first informant described seeing large quantities of drugs at

Oropesa's automotive shop, witnessed others purchasing drugs at Oropesa's

automotive shop, described the drug operation from the automotive shop, and

directed detectives to Oropesa's residence on the corner of 45th and South Park; that

a third informant, whose reliability was unproven, had described Oropesa's business

and home as a regular source for his/her supply of drugs, that the informant claimed

to have seen kilogram-quantities of drugs at both locations, and that the informant

described two hidden compartments in the residence; and that during a taped

telephone conversation between Brooks and Oropesa the day prior to the affidavit

application, Oropesa told Brooks that "things would be straight" the next day, which

Brooks told Detective Carter meant that Oropesa would have the drugs. 

Not only had Brooks proved to be a reliable informant, as evidenced by the

arrest of Brooks' second drug source just two weeks earlier, two other informants

corroborated Brooks' information that Oropesa sold drugs out of his home and

automotive shop. Although the other two informants' information was less timely,

the informants still provided corroboration for Brooks' information. See United

States v. Gabrio, 295 F.3d 880, 883 (8th Cir. 2000) (holding that an informant's tip

provides probable cause if corroborated by independent evidence), cert. denied, 123

S. Ct. 390 (2002). Further, Brooks was more than a mere informant providing a tip.

He was working with the detectives in an attempt to set up a controlled buy. Given

the totality of the circumstances as described in Detective Carter's affidavit, we
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conclude that the state circuit judge had a "substantial basis for . . . conclud[ing] that

probable cause existed." Gates, 462 U.S. at 238-39 (internal quotations omitted). 

Even without the taped telephone conversation, we believe that the totality of

the circumstances provided probable cause to support the search warrant. Brooks was

arrested three weeks prior to the date of the affidavit and identified Oropesa as his

source of cocaine, stating that he had purchased the cocaine in his possession from

Oropesa on the day of his arrest and that he had purchased kilogram-quantities of

cocaine from Oropesa during the eight months prior to his arrest. As stated before,

Brooks had proved to be a reliable informant, and his story that Oropesa sold drugs

from his residence and automotive shop was corroborated by two other informants.

Given the ongoing nature of a large-scale drug distribution operation, Brooks'

information was not stale and supported the conclusion that there was a fair

probability that evidence of drugs would be present on the day Detective Carter

applied for the warrant. See United States v. Hartje, 251 F.3d 771, 775 (8th Cir.

2001) (holding that a drug transaction one month prior to the warrant application was

not stale information in light of the ongoing nature of the crime), cert. denied, 534

U.S. 1116 (2002).

III.

Oropesa next argues that the statements he made after his arrest should be

suppressed because his warrantless arrest was illegal. The Fourth Amendment

requires that a warrantless arrest be supported by probable cause, which "exists when

at the moment of arrest police have knowledge of facts and circumstances grounded

in reasonably trustworthy information sufficient to warrant a belief by a prudent

person that an offense has been or is being committed by the person to be arrested."

Hartje, 251 F.3d at 775. We review the district court's factual findings for clear error
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Missouri law provides that "all persons arrested and confined in any jail or

other place of confinement by any peace officer, without warrant or other process, .

. . shall be discharged from said custody within twenty hours from the time of such

arrest, unless they shall be charged with a criminal offense . . . and be held by warrant

to answer to such offense." Mo. Ann. Stat. § 544.170 (West 2002).

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and the existence of probable cause to make the warrantless arrest de novo. Terry,

305 F.3d at 824. 

Oropesa argues that the government's assertion that Oropesa was arrested

pursuant to an investigative twenty-hour hold5

 was pretextual because the notion of

a twenty-hour hold was not mentioned until the suppression hearing. We must again

caution police officers and point out to the government that Missouri's twenty-hour

hold statute does not provide any authority to arrest persons without a warrant and

hold them in custody for twenty hours. See United States v. Clarke, 110 F.3d 612,

614 (8th Cir. 1997) ("The Missouri statute, first of all, does not purport to give

anyone a power to arrest. That statute is concerned not with the authority to arrest but

with the rights of persons who have already been arrested."). Even if the arresting

officer sought to arrest Oropesa pursuant to a twenty-hour hold, the officer still had

to have probable cause to arrest Oropesa without an arrest warrant. Thus, the officer's

post-arrest reliance on the twenty-hour hold as justification for the arrest is irrelevant;

the test is whether, based on a totality of the circumstances, the facts known to the

arresting officer at the time of the arrest objectively provided probable cause to arrest

the individual. See United States v. Sherrill, 27 F.3d 344, 347 (8th Cir.), cert. denied,

513 U.S. 1048 (1994). 

Detective Gibson knew that Brooks, a reliable informant, had identified

Oropesa from a photo; that Brooks named Oropesa as the source of 500 grams of

powder cocaine and 280 grams of crack cocaine that Brooks had purchased one

month prior to the date of the arrest; that Brooks had told officers he had made

regular purchases of kilogram-quantities of cocaine from Oropesa for eight months;
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that another informant had named Oropesa as his source of drugs and described

seeing large quantities of cocaine at Oropesa's residence and business; and that police

officers had recorded telephone conversations during which Brooks attempted to set

up a purchase of cocaine from Oropesa over a period of several days prior to the

arrest, which culminated in Oropesa telling Brooks to meet him at the automotive

shop on the day of the arrest. The information contained in the search warrant and

the content of the April 12 taped telephone conversation provided Detective Gibson

with "knowledge of facts and circumstances grounded in reasonably trustworthy

information sufficient to warrant a belief by a prudent person that" Oropesa had

committed an offense. Hartje, 251 F.3d at 775; see also Sherrill, 27 F.3d at 347

(holding warrantless arrest supported by probable cause where police relied on

information from a reliable informant that defendant had been dealing crack from his

residence and police corroborated the tip through surveillance). Oropesa's

warrantless arrest was supported by probable cause, and the district court correctly

denied his motion to suppress statements made following his arrest.

IV.

The judgment of the district court is affirmed. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.