490 F.2d 378 (9th Cir. 1974), 73-1656, United States v. Strickler

Docket Nº:73-1656.
Citation:490 F.2d 378
Party Name:UNITED STATES of America, Appellee, v. James Edward STRICKLER, Appellant.
Case Date:January 11, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 378

490 F.2d 378 (9th Cir. 1974)

UNITED STATES of America, Appellee,


James Edward STRICKLER, Appellant.

No. 73-1656.

United States Court of Appeals, Ninth Circuit.

January 11, 1974

Richard H. Levin, Paul A. Turner (argued) Los Angeles, Cal., for appellant.

U.S. Atty. William D. Keller, Eric A. Nobles, Vincent M. Von Der Ahe, Asst. U.S. Attys. (argued) Los Angeles, Cal., for appellee.

Before HUFSTEDLER and GOODWIN, Circuit Judges, and THOMPSON, [*] District Judge.


HUFSTEDLER, Circuit Judge:

Strickler appeals from his conviction for offenses relating to the distribution of cocaine. (21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 2.) We reverse for error in denying Strickler's motion to suppress a hand gun and an inculpatory statement. Evaluation of the two seizures, both of which occurred after

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three police patrol cars had surrounded Strickler's parked automobile and one officer, with gun drawn, had approached Strickler and ordered him to raise his hands, requires discussion of two issues: (1) Did the police conduct in approaching Strickler's automobile constitute an arrest or was it merely an investigatory detention within the meaning of Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Adams v. Williams (1972) 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; (2) before the officers confronted Strickler, were the facts known to them sufficient to justify their detention of him?

In November 1972, undercover state police began negotiating with several of Strickler's codefendants to purchase cocaine. Delivery of the cocaine was eventually set for the morning of December 12, 1972, at the residence of codefendant McDaniel, on Cherrywood Street, south of the intersection of Cherrywood and Rodeo Road.

On December 12, the McDaniel residence was placed under surveillance. Officer Stevens, who was participating in the stakeout at a location approximately 150 yards from the Cherrywood-Rodeo Road intersection, testified that he saw a black-over-tan 1968 Cadillac traveling westbound on Rodeo Road at 2:45 p.m. The vehicle entered the Cherrywood-Rodeo Road intersection, slowed, and pulled over toward the north curb of Rodeo Road. Officer Stevens observed three people in the car, but he could not determine whether they were men or women. During the five or six seconds in which he could see the car, Stevens noticed that the occupants turned their heads in a southwesterly direction, that is, in the direction of the McDaniel residence. Stevens saw no one get into or out of the Cadillac.

Shortly after the car had disappeared from view, Officer Stevens saw a woman, later identified as appellant's wife, Velma Strickler, walking from the intersection area toward the McDaniel residence. Stevens had been informed by one of the police undercover agents that a woman was going to make the cocaine delivery to the McDaniel residence. As he was watching her, Officer Stevens saw a car that appeared to be the Cadillac he had seen moments earlier. The Cadillac drove eastward, in light traffic, through the intersection and continued on out of sight. Stevens then radioed his observations to other mobile units in the area.

Officer Ripley received the radio communication and proceeded toward the Cherrywood-Rodeo Road intersection until he saw a 1968 Cadillac, which fit the broadcast description, parking on Rodeo, east of Cherrywood. Two persons were in the vehicle, a man in the driver's seat (appellant Strickler) and a man in the rear seat (codefendant Parham); both men were looking in the direction of the McDaniel residence on Cherrywood.

Officer Ripley watched the two men in the car for approximately 30 minutes, at which time he received directions on his police radio from an unidentified source to 'approach' the occupants of the Cadillac. Police cars then drove to the front and rear of the Cadillac. Officer Ripley drove a third squad car to the side of the Cadillac, and the officer riding with him pointed a gun at the occupants of Strickler's car and ordered them to raise their hands. Officer Ripley left the patrol car, went to the driver's side of the Cadillac, and inspected the interior of the vehicle. He saw a revolver near Strickler's foot. Ripley then ordered Strickler out of the car, handcuffed him, and formally advised him that he was under arrest for possession of the gun found in the automobile. Strickler and Parham were taken handcuffed to the McDaniel residence, where the other codefendants had just been placed under arrest. Strickler was there overheard saying to Parham, 'Foolproof, huh.'

In Adams v. Williams (1972) 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, the Supreme Court upheld the seizure of the occupant of a parked car based on less

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than probable cause. 1 The Court thus made explicit what had been merely implied in Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889-- forcible street encounters may be initiated by the police if 'reasonable' within the meaning of the Fourth Amendment. 2 The...

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