United States v. Della Rocco

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50363
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PAUL JOSEPH DELLA ROCCO,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:18-CR-237-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*
Paul Joseph Della Rocco appeals his conviction for possession with intent
to distribute 50 grams or more of methamphetamine, 21 U.S.C. § 841(a)(1),
(b)(1)(A), on the ground that the district court erred in not granting his motion
to suppress evidence. We AFFIRM.
On September 14, 2018, Sergeant Abel Sanchez and Officer Gerald
Ornelas of the Ector County Sheriff’s Office were involved in a traffic stop of

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 3, 2020

Lyle W. Cayce
Clerk
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Jenny Hofer in which they seized a large quantity of methamphetamine. Hofer
identified Della Rocco as her supplier and stated that he was from El Paso or
Arizona. She also identified other traffickers in the area who were familiar to
the officers. Based on this information, the officers agreed to release Hofer
pending her cooperation with law enforcement.
On October 5, 2018, Hofer informed Sanchez that Della Rocco had
contacted her the night before. Della Rocco had agreed to travel to Odessa,
Texas, to deliver methamphetamine to Hofer at a restaurant. According to
Sanchez, negotiations for this transaction began prior to Hofer’s arrest, and
Sanchez had nothing to do with the agreement or its terms. Hofer met Sanchez
at the Sheriff’s Office where Hofer was given a recording device (which did not
permit live audio) and was instructed to meet Della Rocco according to their
arrangement.
Sanchez followed Hofer to the restaurant. Other officers were
conducting surveillance nearby and identified Della Rocco’s vehicle with an
Arizona license plate in the restaurant’s parking lot. Shortly after Hofer
entered the restaurant, she contacted Sanchez to alert him that the
methamphetamine was inside Della Rocco’s vehicle. As Della Rocco left the
restaurant and arrived at his vehicle, officers recognized him from the
photograph and detained him. A search of his vehicle yielded
methamphetamine and drug-trafficking paraphernalia.
Della Rocco moved to suppress the evidence in part on the ground that
authorities lacked probable cause to search his vehicle because Hofer was not
a reliable source. The district court denied the motion and held that Hofer was
reliable in part because Sanchez and Ornelas had previous interactions with
Hofer in which she did not provide them with false information. Further, the
officers were aware of other individuals Hofer had named who were involved
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in trafficking. Finally, Hofer provided specific information about the drug
transaction that authorities were able to corroborate.
Della Rocco’s sole issue on appeal is that the district court erred by
finding Hofer reliable. He argues that was unreliable because she uses and
deals drugs, had never served as an informant, and had a significant incentive
for providing information to the authorities. When considering a district
court’s ruling on a motion to suppress, this court reviews the district court’s
findings of fact for clear error and its conclusions of law de novo. United States
v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010). The clearly erroneous standard is
especially strong where a denial of a motion to suppress is based on live oral
testimony because the district court observed the demeanor of the witnesses.
Id. The evidence is viewed in the light most favorable to the prevailing party,
here, the Government. Id. at 269. As long as a factual finding is plausible
based on the record as a whole, it is not clearly erroneous. See United States
v. Raney, 633 F.3d 385, 389 (5th Cir. 2011).
Hofer’s tip provided authorities with reasonable suspicion because it had
indicia of reliability — credibility, specificity, corroboration, and recency —
under the totality of the circumstances. See United States v. Powell, 732 F.3d
361, 369–70 (5th Cir. 2013). In Powell, the authorities relied on a tip from an
individual who concealed his status as a drug dealer. Id. at 370. Although the
court held that the informant had questionable credibility, it nevertheless
found the tip sufficiently reliable under the totality of the circumstances
because it was “very specific” and “exceedingly fresh” (i.e., recent). Id.
Although Hofer was a drug dealer and thus had less credibility, there is
nothing in the record to indicate that she withheld anything from the officers
like the informant in Powell. Id. at 370. The officers here testified that Hofer
had not previously provided false information to them and that she was able
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to confirm the identities of other individuals in the drug-trafficking business.
Hofer also provided specific information about her impending drug transaction
with Della Rocco, which the authorities verified. Hofer identified Della Rocco
in a photograph and identified the restaurant where the transaction would
occur. Furthermore, she previously stated that Della Rocco was possibly from
Arizona, and authorities noted that his vehicle had an Arizona license plate.
Finally, while not all of the information Hofer provided to the officers was as
“fresh” as the information in Powell (twenty-one days here contrasted with two
hours in Powell, 732 F.3d at 371), crucial details were provided on the same
day as the transaction, including where and when Hofer would meet Della
Rocco. The district court did not err in finding Hofer reliable under the totality
of circumstances. See Gomez, 623 F.3d at 268–69; Powell, 732 F.3d 369–71 .
AFFIRMED.
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