U.S. v. Fouche

• Citation: 80 A.L.R.Fed. 605,776 F.2d 1398
• Decision Date: 19 November 1985
• Docket Number: 84-5283,Nos. 84-5262,s. 84-5262
• Parties: UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, v. Pierre FOUCHE, Defendant-Appellee-Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1398

776 F.2d 1398

80 A.L.R.Fed. 605

UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, v. Pierre FOUCHE, Defendant-Appellee-Cross-Appellant.

Nos. 84-5262, 84-5283.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1985.

Decided Nov. 19, 1985.

Enrique Romero, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellant-cross-appellee.

Carlton Gunn, Los Angeles, Cal., for defendant-appellee-cross-appellant.

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

Before CHAMBERS, TANG, and WIGGINS, Circuit Judges.

TANG, Circuit Judge.

Pierre Fouche appeals his conviction on two counts of unarmed bank robbery, in violation of 18 U.S.C. Sec. 2113(a). He argues that the district court erred in finding that: (1) founded suspicion existed to stop his car; (2) probable cause existed for his arrest; and (3) he failed to reclaim his right to counsel before his first confession. The government cross-appeals, arguing that the district court erred in finding Fouche's second confession involuntary as a product of unreasonable pre-arraignment delay.

We affirm the district court's findings that the police had founded suspicion to stop Fouche's car and probable cause to arrest him for bank robbery. We also affirm the district court's suppression of Fouche's second confession. On the question of Fouche's attempt to reclaim the right to counsel before his first confession, however, we vacate and remand for additional findings.

I FACTS

At approximately 2:26 p.m. on May 3, 1984, Montebello police officer Ramos responded to a call that the East West Federal Bank had just been robbed. The robbery suspect was described by radio communication as a black male, approximately 24 years old, 6 feet tall, with a small afro hairstyle, wearing a brown shirt, navy blue pants and white tennis shoes, last seen running away from the bank.

Ramos drove toward the bank in his unmarked police car. He saw a car quickly exit a driveway near the bank. He observed that the driver, later identified as Fouche, was a young black male with a short afro hairstyle who was "looking around suspiciously." Fouche accelerated rapidly, drove at 50 miles per hour through a flashing yellow light in a 25-mile-per-hour school zone, and ran a stop sign before Officer Ramos stopped him on the "on ramp" to the Pomona Freeway.

After the stop, Ramos noticed that Fouche was sweating profusely, acting very nervously, and wearing navy blue pants. When Fouche stepped from the car Officer Ramos saw that he was wearing white tennis shoes. The police brought the bank teller who had been robbed, Ms. Thach, to the scene of the stop, but she could not identify Fouche. Fouche was arrested, transported to the Montebello Police Station, and booked.

At 4:15 p.m. FBI agents Alba and Ochotorena met with Fouche. The agents read Fouche his Miranda rights. Then Fouche read aloud, stated he understood, and signed a form waiving his right to counsel. Fouche talked with the agents, but denied robbing the East West Bank. During the course of the interrogation, agent Alba discussed the penalties for bank robbery and told Fouche that the East West Bank teller had identified him as the robber from some photographs. At that point, Fouche stated that he might want to speak to a lawyer, and wanted to make a phone call.

According to agent Alba, the agents immediately stopped the interrogation, but before Fouche left to make his call, he asked the agents to "stay around." Alba reportedly told Fouche that they did not want to waste their time if Fouche did not want to discuss the robbery. Alba stated that Fouche again asked that they stay because he might want to talk to them. According to Fouche, after he said he might want a lawyer, the agents asked him if he still wanted to talk to them, and he said he wanted to make a phone call first. ¹

When Fouche returned from making his phone call, he apparently informed the agents that he had called his wife. ² Agent Alba did not attempt to clarify whether Fouche still might want a lawyer. Alba immediately read Fouche his rights from the waiver form that Fouche had signed, and asked if Fouche understood what had been read. When Fouche said yes, Alba asked if Fouche wished to make a statement about the robbery. Fouche then confessed to robbing the East West Bank and another bank, and gave the agents consent to search his car. They found a bag, a gun, money, bait money, and a dye pack.

The FBI interrogation ended at 6:00 p.m., and at 6:45 p.m. the agents received authorization from the United States Attorney to place a federal hold on Fouche. Fouche At approximately 11:00 the next morning, the agents picked up Fouche for the 15-minute ride to the federal courthouse. During the ride agent Alba again read Fouche his rights, informed him that they wanted to question him about other bank robberies, and asked if he was willing to answer questions. Fouche agreed and subsequently admitted two more bank robberies. The government brought Fouche before a magistrate that afternoon.

spent the night in a county jail in East Los Angeles.

Fouche was indicted on four counts of bank robbery. Before trial, he moved to suppress statements and evidence as alleged fruits of an illegal stop and arrest. He subsequently moved to suppress his two confessions, claiming the first violated his right to counsel, and the second was involuntary because of an unreasonable pre-arraignment delay. The district court found that founded suspicion existed for the stop, probable cause existed for the arrest, and Fouche had voluntarily waived his right to counsel before the first confession. The court suppressed the second confession, however, as involuntary because it violated 18 U.S.C. Sec. 3501.

Fouche entered a conditional guilty plea and was convicted on two counts of bank robbery, in violation of 18 U.S.C. Sec. 2113(a). He was sentenced to two concurrent 9-year prison terms.

II DISCUSSION

A. Founded Suspicion to Stop

This court reviews de novo the district court's conclusion that founded suspicion existed for the stop of Fouche's car. See United States v. Maybusher, 735 F.2d 366, 372 & n. 1 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). The findings of fact on which the district court based its conclusion are reviewed under a clearly erroneous standard. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Police officers may make a brief investigatory stop of a moving vehicle, consistent with the requirements of the fourth amendment, if under the totality of the circumstances, they are aware of articulable facts leading to a reasonable or founded suspicion that the person has been, is, or is about to be engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); see also United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); Maybusher, 735 F.2d at 371. Founded suspicion must exist at the time the officers initiate the stop. United States v. Doe, 701 F.2d 819, 821 (9th Cir.1983); United States v. Morrison, 546 F.2d 319, 320 (9th Cir.1976).

Fouche argues that, under the totality of the circumstances, officer Ramos lacked founded suspicion for the stop. He contends that Ramos impermissibly considered his race in stopping him; that his traffic violations, if any, were not uncommon or especially significant; ³ and that officer Ramos's opinion that he was "looking around suspiciously" is too subjective to be entitled to substantial weight. These contentions fail.

First, although race or color alone is not a sufficient basis for making an investigatory stop, United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983), racial appearance may be considered as a factor contributing Second, regardless of how common Fouche's traffic violations were, they constituted criminal conduct and, even standing alone, provided founded suspicion for a brief investigatory stop. See Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985). Moreover, although "looking around suspiciously" may be a subjective observation that alone would be entitled to little weight, see Mallides, 473 F.2d at 861, it may be considered under the totality of circumstances. Inferences or deductions apparent to trained law enforcement officers may be considered. See Cortez, 449 U.S. at 418, 101 S.Ct. at 695; United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir.1985).

                to a founded suspicion of criminal conduct.   Id.  Compare United States v. Mallides, 473 F.2d 859, 862 (9th Cir.1973) (officers' observation of six Mexican-appearing men in a car who sat stiffly did not justify a stop to investigate whether they were illegal aliens), with Bautista, 684 F.2d at 1289 (officers could consider fact that defendants' racial appearance matched racial description of robbery suspects as one factor in deciding to stop the car).  Thus, in light of the broadcast description of the suspect as a black male, officer Ramos could permissibly consider Fouche's race and color as one factor in deciding whether to make the stop
                

Here, the record reflects that before officer Ramos stopped Fouche, he knew that the East West Bank had been robbed; he had observed Fouche's car quickly exit a driveway near the bank within minutes of the robbery; Fouche matched part of the physical description of the robber (a young black male with a short afro hairstyle); and Fouche was "looking around suspiciously," sped through a school zone, and ran a stop sign. Under the totality of the circumstances, officer Ramos had founded suspicion to stop Fouche's car.

B. Probable Cause to Arrest

This court reviews de novo the...