U.S. v. Herrera

• Citation: 927 F.2d 611
• Decision Date: 01 March 1991
• Docket Number: No. 90-50152,90-50152
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Luz HERRERA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 611

927 F.2d 611

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee, v. Luz HERRERA, Defendant-Appellant.

No. 90-50152.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 4, 1991.

Decided March 1, 1991.

Appeal from the United States District Court for the Central District of California, No. CR-89-0004-JSL-1; J. Spencer Letts, District Judge, Presiding.

C.D.Cal.

REVERSED.

Before BEEZER, KOZINSKI and RYMER, Circuit Judges.

MEMORANDUM ^*

Defendant argues that the consent to search her purse and her second residence was the fruit of an unlawful arrest. See United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1300 (9th Cir.1988). The government concedes that there was no probable cause to arrest defendant. See Appellee's Brief at 18. Thus, the government must take the position that there was no arrest because (A) defendant stayed with the police for some two and a half hours of her own free will, or (B) the prolonged detention was a permissible stop under Terry v. Ohio, 392 U.S. 1 (1968).

A. It would be highly unusual for a private party to choose to spend the better part of an afternoon shuttling back and forth with police officers rather than going about her own business. Here, the police had taken defendant's purse, car keys and driver's license; they did not tell her that she was free to leave, nor that her property would be returned to her unconditionally upon request. The record simply cannot sustain a finding that defendant was voluntarily in the company of the police at the time she gave her consent. To the extent the district court may have found to the contrary, its finding is clearly erroneous. ¹

B. Nor can we accept the government's argument that defendant was not really under arrest as she was merely the subject of a prolonged Terry stop. Terry allows police to detain an individual only so long as is necessary to confirm or dispel the suspicion that prompted the stop in the first place. United States v. Sharpe, 470 U.S. 675, 686 (1985). We can conceive of no circumstance where that process could take two and a half hours and involve all the varied activities the police engaged in during that time. The government's argument to the contrary does not pass the straight face test.

The unlawful detention vitiated her subsequent consents to search her purse and her second residence. Because she was convicted on the basis of evidence found in her purse and her second residence, appellant's conviction is

REVERSED.

RYMER, Circuit Judge, Dissenting

I do not disagree with the majority that a private party would be unlikely "to choose to spend the better part [indeed any part] of an afternoon shuttling back and forth with police officers rather than going about her business." However, Herrera said she would, six times orally and three times in writing. The consent forms she signed explicitly told Herrera that she had the right not to consent. The district court found her consent was voluntary. I respectfully disagree that we can disregard this finding. See United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1988).

The district court also found that Herrera was not in handcuffs, confined, threatened or coerced. I cannot say these factual findings were clearly erroneous. Therefore, the record sustains a finding that Herrera was voluntarily in the company of the police when she gave her...