U.S. v. Jacobs, 83-5024

Citation715 F.2d 1343
Decision Date12 September 1983
Docket NumberNo. 83-5024,83-5024
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Peggy Ann JACOBS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Jay L. Lichtman, Los Angeles, Cal., for defendant-appellant.

Darrell W. MacIntyre, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, CHOY and FERGUSON, Circuit Judges.

PER CURIAM:

The government met its burden of demonstrating the reliability of the descriptions of the bank robber and the escape vehicle dispatched over the police radio. The declarations of the victim teller and the other eyewitness reflected no uncertainty regarding the descriptions they gave to the investigating officer who made the radio dispatch. In these circumstances, the government was not required to make an independent showing of the eyewitnesses' reliability. See United States v. Hammond, 666 F.2d 435, 439 (9th Cir.1982).

A law enforcement officer may make an investigative stop of a suspicious individual to maintain the status quo while obtaining more information even though the officer lacks probable cause to arrest the individual. See Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Such a stop requires only "founded suspicion." United States v. Bautista, 684 F.2d 1286, 1288 (9th Cir.1982); Wilson v. Porter, 361 F.2d 412, 415 (9th Cir.1966). Deputy Boyett had adequate grounds for stopping defendant: (1) defendant's vehicle fit the radio dispatched description of the escape car (a 1971 red Ford Maverick with no license plates ), the number of occupants (two) and the sex of and an article of clothing worn by one of them (a woman wearing a light beige scarf); (2) the vehicle was on a thoroughfare heading directly away from the bank, within six miles of the bank approximately twenty minutes after the robbery; and (3) the occupants reacted in a startled manner and stopped their vehicle without being signaled when Deputy Boyett began to follow them.

The investigative stop did not become an arrest when the deputy pointed his gun at defendant and ordered her to "prone out." "A valid stop is not transformed into an arrest merely because law enforcement agents momentarily restrict a person's freedom of movement," United States v. Patterson, 648 F.2d 625, 633 (9th Cir.1981), and the use of force in making a stop will not convert the stop into an arrest "if it occurs under circumstances justifying fears for personal safety." United States v. Beck, 598 F.2d 497, 501 (9th Cir.1979). See United States v. Bautista, 684 F.2d at 1289-90. The radio dispatch informed Deputy Boyett that the bank robber was possibly armed and under the influence of PCP, and Deputy Boyett was alone at the time. These circumstances justified the actions of Deputy Boyett in ordering defendant and her passenger to "prone out" at gunpoint as a protective measure while he continued his investigation.

Deputy Boyett testified that when defendant's passenger stepped out of the vehicle, the deputy noted that the passenger fit the description of the suspect given in the radio dispatch, that both suspects appeared to be under the influence of some type of intoxicant, and that both were "very obviously similar to ... photos that were submitted by the FBI in the previous bank robberies that were posted on our briefing board at the station for several months" prior to the arrest. With these additional facts the officer's founded suspicion ripened into probable cause to arrest. See United States v. Collom, 614 F.2d 624, 629 (9th Cir.1979).

Deputy Boyett's subsequent inadvertent discovery of the brown purse and protruding currency in plain view established probable cause to believe the vehicle contained contraband. The officer therefore was justified in searching the entire vehicle and all containers, including the "rainbow colored" purses, found within the vehicle. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982). 1

The trial court properly admitted the identification of defendant by the bank teller. Although under California law a defendant has a right to counsel at a pre-indictment line-up, People v. Bustamante, 30 Cal.3d 88, 99, 634 P.2d 927, 934, 177 Cal.Rptr. 576, 584 (1981), there is no equivalent federal constitutional right. See Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972...

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