405 F.3d 782 (9th Cir. 2005), 03-50550, United States v. Pulliam

Docket Nº:03-50550.
Citation:405 F.3d 782
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Darrell Dominique PULLIAM, Defendant-Appellee.
Case Date:April 21, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 782

405 F.3d 782 (9th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellant,

v.

Darrell Dominique PULLIAM, Defendant-Appellee.

No. 03-50550.

United States Court of Appeals, Ninth Circuit

April 21, 2005

        Argued and Submitted Oct. 8, 2004.

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        Fred A. Rowley, Jr., Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellant.

        Elizabeth A. Newman, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellee.

        Appeal from the United States District Court for the Central District of California Terry J. Hatter, Chief District Judge, Presiding. D.C. No. CR-03-00710-TJH.

        Before: WALLACE, THOMAS G. NELSON, and WARDLAW, Circuit Judges.

        WALLACE, Senior Circuit Judge.

        Following a lawful traffic stop of a car in which Defendant-Appellee Pulliam was a passenger, the police illegally detained him and the car's driver, and illegally searched the car. The search produced a gun, and Pulliam was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

        The government appeals from the district court's order suppressing the gun. The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3731. Because Pulliam lacks standing to object to the vehicle search, and the gun's discovery was not the product of Pulliam's unlawful detention, the gun should not have been suppressed. We therefore reverse and remand.

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        I.

        Officers Algren and Sambrano, both members of the Los Angeles Police Department Gang Enforcement Division, were patrolling in their vehicle through part of the city known for gang activity. Gang crime was expected because it was "Rollin' 60's day," the birthday of the Rollin' 60's gang which operates in that area.

        The officers stopped in front of a building Algren knew to be a gang hangout, because he had responded to calls there and had seen other officers find firearms and drugs in the building. When the officers looked through the front gate into the courtyard, they saw Donte Richards and Pulliam. Algren recognized Richards as a member of the Rollin' 60's gang and knew him to be a parolee. Neither officer recognized Pulliam. Richards and Pulliam looked "surprised" when they saw the officers and began to speak with one another in a "furtive" fashion. Sambrano thought it clear that Richards and Pulliam had intended to walk out of the courtyard but reconsidered when they saw the officers.

        Richards then walked over to the police car and spoke with Algren, while Pulliam stayed in the courtyard. Algren believed this conversation was intended to distract the officers and "suspected that [Pulliam] was a wanted suspect or was armed." The officers drove away when the conversation ended, but quickly positioned themselves to be able to follow the two men. Sambrano thought Richards and Pulliam would likely leave the apartment building in a grey Dodge Stratus car parked nearby. Sambrano concedes that the officers had already decided that they were "going to follow them" and "find a reason to stop them."

        A few moments later, the officers saw the car drive by with Richards driving. After following for two blocks, the officers noticed that the car's left rear brake light did not operate when the car slowed. They also assert that the car rolled through a stop sign. Algren and Sambrano then decided to stop the car, and activated the patrol car's siren and lights. Richards did not immediately respond. He continued driving for approximately 45 seconds covering 150 yards, even though there was room for him to pull over to the curb (a point that Richards disputed). This allegedly caused Algren's suspicion to increase; he feared that Richards and Pulliam would flee either in the car or on foot, or would have a violent altercation with the officers.

        When the car stopped, the officers got out of their car with their weapons aimed low. Richards and Pulliam were ordered out of the car and to walk to the curb, where they were handcuffed and patted down. Algren then went directly to the car, looked under the passenger seat and found a gun. The officers found no weapons or other contraband on Pulliam during the earlier patdown, and did not question either of the men in the brief period before the gun was found.

        Pulliam later admitted to owning the gun, and gave written and audio-taped statements about the offense. He was charged with being a felon in possession of a firearm. Pulliam then filed a motion to suppress the gun and his incriminating statements. In opposition to the motion, the government argued, among other things, that Pulliam, as a mere passenger in the car, had standing to challenge the stop of the vehicle but not the search itself; that the car was lawfully stopped on the basis of the various alleged traffic violations; that the gun was not the "fruit" of Pulliam's detention following the stop; that the officers had reasonable suspicion to detain Pulliam because they suspected that he posed a danger to them; and that the gun inevitably would have been discovered

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during a lawful parole search of Richards.

        The district court held a suppression hearing at which Algren, Sambrano, Richards, and Richards' sister, Monique Robinson, testified. Richards had earlier stated in a declaration that Robinson owns the car and that Pulliam does not drive or have keys to it. At the hearing, Robinson also said Pulliam has no ownership interest in the car and never borrows it from her. Pulliam's counsel elicited testimony from Robinson suggesting that the brake light was working and that the officers might themselves have broken it to manufacture a reason for stopping the car.

        The district court also asked Sambrano about the officers' purpose for each step in their encounter with Pulliam. Sambrano explained that they stopped the car because of the traffic violations; ordered Richards and Pulliam out of the car and patted them down for safety concerns; and detained Richards and Pulliam in order to identify them. The court asked, "You effected a traffic stop. What purpose did you have in identifying the passengers?" Sambrano responded:

The purpose is being that working the gang unit--that one of our ultimate goals to identify persons who either are affiliates or associates with known gang members. And that goes into part with our intelligence to identify the car, the vehicle, that gang members are driving, who they are hanging out with, or who's hanging out with them.

        After hearing arguments from counsel, the district court granted the suppression motion. The court focused on whether there was reasonable suspicion for the stop, found that the taillight was not working, and concluded that this provided authority for stopping the car. But it held that the officers had no reasonable basis for going further, and that the car search was invalid. It also stated that there was no reason to get to the inevitable discovery doctrine.

        II.

        On appeal, the government concedes that the officers lacked authority either to detain Pulliam or to search the car, and it does not presently challenge the district court's ruling suppressing Pulliam's statements. In addition, Pulliam does not contest the district court's ruling that the initial stop of the car was lawful, given the malfunctioning taillight. Nor does he specifically challenge being ordered out of the car. Pulliam contends that the district court properly suppressed the gun as the fruit of a constitutional violation.

        A.

         We review de novo the district court's suppression order and its implicit legal conclusion that Pulliam had standing to seek suppression of the gun; the underlying factual findings are reviewed for clear error. See United States v. Bynum, 362 F.3d 574, 578 (9th Cir.2004) (motion to suppress); United States v. Sarkisian, 197 F.3d 966, 986 (9th Cir.1999) (standing).

         "[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or 'fruit of the poisonous tree.' " Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (citations omitted). "It 'extends as well to the indirect as the direct products' of unconstitutional conduct." Id., quoting Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In this case, we must apply two well-established principles that limit the reach of the exclusionary rule.

         The first is that "[a] person who is aggrieved by an illegal search and seizure

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only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Thus, a person seeking to exclude evidence allegedly obtained in violation of the fourth amendment must have standing to challenge the illegal conduct that led to the discovery of the evidence. "[T]o say that a party lacks fourth amendment standing is to say that his reasonable expectation of privacy has not been infringed. It is with this understanding that we use 'standing' as a shorthand term." United States v. Taketa, 923 F.2d 665, 669-70 (9th Cir.1991) (citation omitted).

         The second principle is that suppression is not justified unless the evidence is " 'in some sense the product of illegal governmental activity.' " Segura, 468 U.S. at 815, 104 S.Ct. 3380, quoting United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). Pursuant to this basic...

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