872 F.2d 1392 (9th Cir. 1989), 87-5318, United States v. Ramirez-Sandoval

Docket Nº:87-5318.
Citation:872 F.2d 1392
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jesus RAMIREZ-SANDOVAL, Defendant-Appellant.
Case Date:April 17, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1392

872 F.2d 1392 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jesus RAMIREZ-SANDOVAL, Defendant-Appellant.

No. 87-5318.

United States Court of Appeals, Ninth Circuit

April 17, 1989

Argued and Submitted Oct. 31, 1988.

Page 1393

Michael J. Brennan, Manhattan Beach, Cal., for defendant-appellant.

Janet C. Hudson, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before FLETCHER, ALARCON and HALL, Circuit Judges.

FLETCHER, Circuit Judge:

Defendant-appellant Jesus Ramirez-Sandoval entered a conditional guilty plea to the charge of transporting illegal aliens. He now appeals from the district court's partial denial of his motion to suppress evidence. The district court held that certain evidence was admissible under the inevitable discovery exception to the exclusionary rule. We reverse.

I.

FACTS

Sometime prior to July 22, 1987, Los Angeles Police Officer Juan Torres received reports from several merchants that they had, on a number of occasions, seen suspicious activity taking place near a red and white van parked in front of the Central Market at 317 South Broadway. Specifically, they had observed many people coming and going from the van and exchanging what appeared to be money. However, they did not report actually having seen contraband or weapons. These merchants told Torres that the van always appeared after 6:00 P.M., when Torres was off duty. They could describe the occupants of the van only as male Hispanics.

Torres was very familiar with his informants, and with the neighborhood in general, having been assigned to foot patrol duty in the area for five years. He was aware that there was considerable heroin dealing activity in the neighborhood, and he had seen dealers work out of parked vans on numerous occasions. Based on his experience and the information received, Torres concluded that the occupants of the van were probably engaging in illegal narcotics transactions. Torres also surmised that the occupants might be local dealers familiar

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with his schedule, who delayed arrival until 6:00 P.M. when he was off duty.

Torres testified during the suppression hearing that on July 22, 1987 at 2:00 p.m., he was directed to a red and white van near the Central Market, occupied by two men in the front seat and others in the rear. As he approached the van, he could see that the occupants were Hispanic. He did not observe any illegal activity taking place in or around the van.

Torres and his partner ordered the two men sitting in front to get out of the van. Torres looked into the van, seeking evidence of narcotics. He noticed that the sun visor on the driver's side was hanging low; he touched it and several pieces of paper fell to the floor. He picked up one of the pieces of paper which had a list of names and numbers on it. He read one of the names out loud and a man in the back of the van responded. Torres asked the man what the number next to his name meant. The man responded that he and the others had recently crossed the border from Mexico and the number was the amount of money he had paid to be illegally transported into the United States. 1

Torres and his partner then detained the occupants of the van and contacted the Immigration and Naturalization Service (INS). Torres testified that he did not further interrogate the occupants of the van. He also testified that he did not locate any narcotics or weapons during his search of the van.

Based upon information obtained from INS agents' questioning of the individuals found in the van, appellant Ramirez-Sandoval and codefendant Maravi-Hospinal were arrested and charged with offenses involving transporting and harboring illegal aliens. Appellant moved to suppress the evidence obtained as a result of Torres' actions, including the testimony obtained from interrogation of the aliens.

The district court ruled that Torres' detention of the occupants of the van was supported by a "reasonable articulable suspicion" that they were involved in illegal activity, and therefore was permissible. However, the district court ruled that when Officer Torres reached into the van, knocked papers from the sun visor, picked up those papers and read aloud from them, he performed an illegal search. The government did not appeal from that ruling. The court suppressed the physical evidence obtained from the illegal search, as well as the statements elicited by Torres from the illegal aliens at the time of the search. However, the court found that the aliens' testimony regarding identification of the defendants and arrangements they made for entering the country would be admissible at trial because the evidence would inevitably have been discovered. Appellant entered a conditional guilty plea, while preserving his right to appeal the issues raised in the motion to suppress. Appellant was sentenced to eight months in prison, and now appeals the district court's partial denial of his motion to suppress. This court has jurisdiction to hear the appeal under 28 U.S.C. Sec. 1291.

II.

VALIDITY OF THE INVESTIGATORY STOP

Appellant's first challenge to the admissibility of the aliens' statements is that the initial detention of the individuals in the van was illegal. Specifically, appellant contends that Officer Torres' brief detention and questioning of the occupants of the van were not based upon a reasonable suspicion of illegal activity, and therefore were illegal. We disagree. 2

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The parties do not dispute that Officer Torres' actions constitute a warrantless investigatory stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The question is whether the stop was legally permissible under the facts of this case. The Supreme Court articulated the level of cause necessary to justify an investigatory stop in United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981): "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." The Ninth Circuit has termed the requisite level of cause a "reasonable" or "founded" suspicion of criminal activity. United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986). In evaluating the legality of the investigatory stop, the totality of the circumstances is taken into account. Cortez, 449 U.S. at 417, 101 S.Ct. at 694. The totality of circumstances "should include the modes of operation of certain kinds of lawbreakers, taking into account inferences and deductions that may be apparent to trained law enforcement officers." United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir.1985).

A number of factors gave Torres a founded suspicion that individuals in a van fitting the description of the appellant's van may have been engaging in criminal activity. First, a number of reliable individuals had informed Torres that suspicious activity--specifically, numerous people going in and out of the van, and apparently exchanging money--had taken place in and around a red and white van on numerous occasions. Second, the van had been spotted in an area known to Torres to be popular for heroin dealing activity. Third, the van was observed only after 6:00 p.m., when Torres was off-duty, leading him to infer that the activity was timed so that it would be concealed from him. Fourth, Torres was aware that selling from parked vans was a common mode of operation for area dealers. Taken together, these factors provide a founded suspicion that the occupants of a van fitting the description of appellant's van may have been engaging in illegal activity.

Appellant attempts to minimize the importance of these factors by arguing that they do not provide reasonable suspicion to engage in an investigatory stop of appellant's particular van. Although appellant's van fit the description given to Torres, that description was not very specific (a red and white van occupied by two Hispanic males). In addition, appellant emphasizes that Torres did not himself observe any suspicious activity taking place in or around the van on July 22, 1987. However, Torres...

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