637 F.2d 630 (9th Cir. 1980), 79-1828, United States v. Huberts

Docket Nº:79-1828, 79-1829.
Citation:637 F.2d 630
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Raymond A. HUBERTS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Shirley L. SHELLEY, Defendant-Appellant.
Case Date:September 12, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 630

637 F.2d 630 (9th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

Raymond A. HUBERTS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Shirley L. SHELLEY, Defendant-Appellant.

Nos. 79-1828, 79-1829.

United States Court of Appeals, Ninth Circuit

September 12, 1980

Argued and Submitted July 3, 1980.

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[Copyrighted Material Omitted]

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Mark W. Perrin, Eugene, Or., for defendants-appellants.

Sidney I. Lezak, U.S. Atty., Portland, Or., Lauren Holland, Eugene, Or., argued for plaintiff-appellee; Larid C. Kirkpatrick, Asst. U. S. Atty., Eugene, Or., on brief.

Appeal from the United States District Court for the District of Oregon.

Before SNEED and NELSON, Circuit Judges, and GRAY, [*] District Judge.

WILLIAM P. GRAY, District Judge:

Appellants Raymond A. Huberts and Shirley L. Shelley were convicted in a stipulated facts trial of violating 18 U.S.C. §§ 371 1 and 472 2 by conspiring to possess and, with intent to defraud, pass counterfeit United States currency. We affirm.

Page 633

I. FACTS

During the afternoon of August 22, 1978, Mr. and Mrs. Ralph Carter, Shelley's mother and stepfather, took Mrs. Carter's twelve-year-old daughter, Janine Doege, to the Douglas County Sheriff's Office and lodged a complaint against Huberts, alleging that he had sexually abused Janine. In response to the complaint, Detective Chirrick stopped Shelley's 1973 Volkswagen van in which both appellants were riding. When informed of the complaint, Huberts voluntarily accompanied Detective Chirrick to the sheriff's office for questioning. In the course of the stop, sheriff's deputies saw, in plain view inside the van, a wallet, a brown leather briefcase, and a paper cutter.

Huberts was questioned by Sergeant Willis at the sheriff's office for half an hour and released. Upset at Huberts' release, the Carters advised Sergeant Willis that the briefcase remaining with Shelley might contain counterfeit currency. Mrs. Carter then told the officer that while the appellant stayed with the Carters for approximately one month, several weeks before August 22, 1978, the following occurred:

1. Mrs. Carter saw a twenty-dollar bill that she thought was counterfeit lying in an open suitcase belonging to Huberts or Shelley.

2. Shelley acknowledged to Mrs. Carter that she and Huberts were involved in the manufacture and distribution of counterfeit currency and that Huberts had made $250,000 in counterfeit twenty-dollar bills in Denver, Colorado.

3. Shelley removed a counterfeit bill from a brown leather briefcase with latches and a combination lock and showed it to Mrs. Carter.

4. Mrs. Carter saw what appeared to be counterfeit currency in a wallet owned by Huberts. The wallet had numerous card slots and the slots contained new twenty-dollar bills folded in 1 1/2-2 inch squares.

5. Mrs. Carter observed a paper cutter in the possession of Huberts and Shelley.

Additionally, Detective Vest had reported previously to Sergeant Willis that Janine had told him that the appellants had been passing counterfeit money during the previous year on the East Coast.

As a result of these allegations and Detective Chirrick's previous observations, the officers again stopped the van when it was occupied only by Shelley. The officers confronted her with the counterfeiting allegations and, over her objection, the officers seized a paper cutter, two wallets, a ladies' blue cloth handbag, a .380 automatic pistol, and a brown leather briefcase. The officers opened the wallets and found what appeared to be a counterfeit twenty-dollar bill.

The brown leather briefcase had a locking mechanism similar to that described by Mrs. Carter. The briefcase was partly open and the officers saw currency through the gap. With the aid of a plastic pen, they "fished out" over $1,300 in genuine currency. Shelley denied ownership or knowledge of the briefcase.

Before arresting Shelley, Detective Vest removed a twenty-dollar bill from the just seized wallet and had it confirmed as counterfeit at a nearby bank. Huberts was located later that afternoon and was returned to the sheriff's office where he was arrested.

That evening, United States Secret Service Agent Huebner arrived at the sheriff's office to conduct the counterfeiting investigation. He and Detective Chirrick opened the leather briefcase by breaking the center latch. They found approximately 200 counterfeit twenty-dollar bills, numerous pieces of identification of both appellants, and the business card of Lawrence Gustafson, a Denver, Colorado attorney.

Ten days later Agents Blecha and Huebner interviewed Mrs. Carter. She told them that Shelley had indicated that the appellants had purchased an expensive camera and printing press. The press, she added, was purchased on consignment by an attorney in the Denver area. She informed Agent Blecha orally of the attorney's name. He wrote it down, spelling it phonetically as G-e-s-t-o-f-f-e-r-s-o-n.

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Agent Huebner, who had received the information concerning the Denver attorney from Blecha, relayed the attorney's name to an agent in Denver. However, since Heubner knew the correct spelling from the attorney's business card found in the briefcase, he spelled the name correctly as Gustafson.

The agent in Denver received only the name. He looked up Gustafson's address and telephone number in the Denver telephone directory. From his subsequent conversation with Gustafson, the agent learned that Huberts, using the alias Leslie Farmer, had requested the attorney to purchase some photographic equipment on consignment. Gustafson believed that the firm's name was something like "Rocky Mountain."

The agent, by looking through the telephone directory, located the firm Rocky Mountain Offset Repair and Sales. The agent later showed photographs of the appellants to employees of the firm and they identified Huberts as the purchaser of the press and Shelley as being present during the sale.

The trial court first upheld all the searches, tried Huberts and Shelley on stipulated facts, and found them guilty. However, before sentencing, this court issued its opinion in United States v. Stewart, 591 F.2d 63 (9th Cir. 1979), withdrawn by court order. On the basis of Stewart's application of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) to automobiles, the district court reversed itself, finding probable cause for the stop and arrest of Shelley (and the later arrest of Huberts) and the search of the van, but held that the police had no right to make a warrantless search of the contents of the briefcase. The court therefore ordered the contents of the briefcase suppressed. The Government appealed this order, but subsequently withdrew its appeal when the Supreme Court issued its opinion in Arkansas v. Sanders, 443 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). The Government reindicted Huberts and Shelley. They again were tried on stipulated facts and found guilty.

The appellants now bring this appeal, raising Fourth Amendment search and seizure issues. They contend that (1) the initial stop of the Volkswagen van and a subsequent interview of Huberts at the sheriff's office constituted a detention and arrest made without probable cause; (2) the second stop of the van and subsequent arrest of Shelley was made without probable cause; (3) the "Denver evidence" was "fruit of the poisonous tree"; (4) the Grand Jury considered previously suppressed evidence; (5) the subpoena issued against attorney Gustafson should have been suppressed; and (6) the identification of the appellants by Denver witnesses should have been suppressed. We reject each of these contentions.

II. THE INITIAL STOP AND SUBSEQUENT STATIONHOUSE INTERVIEW

The appellants argue that the stop and interview each constituted a detention, which must be justified by a showing of probable cause. They argue further that the trial record contained no facts from which a reasonable person could conclude that Huberts sexually abused Janine, and therefore, since no probable cause existed, all evidence seized as a result of the illegal detention must be suppressed.

The appellants are correct that specific facts are not revealed in the trial transcript. However, a determination of probable cause is not necessary here, because this case is governed by the principles set forth by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Terry, the Court recognized the conflict between effective law enforcement and the Fourth Amendment's proscription against unreasonable searches and seizures. The Court struck a balance, permitting a "police officer . . . in appropriate circumstances and in an appropriate manner (to) approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." Adams v. Williams, 407 U.S.

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143, 145, 92 S.Ct. 1921, 1922, 32 L.Ed.2d 612, quoting Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. at 1880. The appropriate circumstances have been interpreted to permit a brief detention of a suspect for investigative purposes where the officer forms, on the basis of his experience and from particular objective criteria, the reasonable suspicion that the person may have committed or is about to commit a crime. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975); United States v. Collom, 614 F.2d 624, 628 (9th Cir. 1979); United States v. Post, 607 F.2d 847, 850 (9th Cir. 1979); United States v. Holland, 510 F.2d 453, 455 (9th Cir. 1975), cert. denied, 422 U.S. 1010, 95 S.Ct. 2634, 45 L.Ed.2d 674 (1975). Therefore, we must determine only whether Detective Vest formed a reasonable suspicion from his interviews with the Carters and Janine to justify a brief field detention of Huberts to investigate their charges.

Since the trial judge found...

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