People of Territory of Guam v. Ichiyasu

• Decision Date: 01 February 1988
• Docket Number: No. 87-1121,87-1121
• Citation: 838 F.2d 353
• Parties: The PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Benjamin M. ICHIYASU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 353

838 F.2d 353

The PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Benjamin M. ICHIYASU, Defendant-Appellant.

No. 87-1121.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 14, 1987.

Decided Feb. 1, 1988.

Margaret E. Bean, Asst. Atty. Gen., Agana, Guam, for plaintiff-appellee.

William M. Goodman, Topel & Goodman, San Francisco, Cal., Richard Pipes, Carbullido & Pipes, Agana, Guam, for defendant-appellant.

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

Before FLETCHER, WIGGINS and NOONAN, Circuit Judges.

FLETCHER, Circuit Judge:

Appellant Ichiyasu appeals the decision of the appellate division of the district court of Guam affirming the Guam Superior Court's denial of his motion to suppress evidence and statements. We affirm.

I. FACTS

On November 23, 1984, two women were struck by an automobile while standing on Route 1 in Agana, Gaum. The driver fled the scene. While on patrol, Officer John Thornton received several police radio dispatches describing the car and the direction it was traveling. The last of these indicated that the suspect vehicle had turned off Route 1 onto Route 11, a dead-end road that terminated at a pier. Thornton, who was close to the intersection of Routes 1 and 11, proceeded there at once, arriving in less than a minute. Upon reaching the intersection, he began to turn left onto Route 11 when he noticed a taxi with one passenger emerging from the dead-end road. As Thornton turned, he watched the taxi, and noted that the passenger, appellant Ichiyasu, was elderly, tall and slim and that he did not look at the police car. As the taxi turned onto Route 1, Thornton executed a U-turn and signalled the taxi to stop.

The officer first approached the taxi driver and asked where he had picked up his passenger; the driver said near the Piti power plant down Route 11. Thornton then approached Ichiyasu and asked him for some identification. Appellant gave him his driver's license, which Thornton took to his patrol car to record the information. Thornton then returned to the cab, where he asked Ichiyasu if he had a car and had been driving that night. Ichiyasu, avoiding eye contact with the officer, answered "no" to both questions.

At that point Thornton noticed fresh blood on the back of the appellant's hands. He asked appellant to step out of the cab. As appellant did so, Thornton saw that his clothes were messy, that his pant legs were soiled and that he had small spots of blood on his shirt. He took Ichiyasu into custody and transported him to the central precinct.

Once at the station, Thornton began to read Ichiyasu his Miranda rights. Appellant interrupted, saying that "he knew what his rights were and that he wanted his lawyer." Officer Thornton continued reading him his rights at which point Ichiyasu interrupted again saying "all he knew he was driving and he heard a loud noise and [ ] now he wanted his lawyer."

Appellant was charged with negligent homicide and leaving the scene of an accident. At a hearing on Ichiyasu's suppression motion, Guam Superior Court Judge Weeks ruled that the stop of the taxi was reasonable, that reasonable suspicion existed to question appellant at the time, that there was probable cause to arrest him, and that Ichiyasu's statement made while Officer Thornton was reading him his Miranda rights was spontaneous and unsolicited and therefore admissible.

Ichiyasu entered a conditional plea of nolo contendere to leaving the scene of an accident with injuries. He was sentenced to six months probation and fined $4000. The Appellate Division of the District Court of Guam affirmed. This appeal followed.

II. DISCUSSION

We have jurisdiction to review final orders of the district court of Guam pursuant to 28 U.S.C. Sec. 1294(4).

A. The Stop of the Taxi

The appellate division affirmed the superior court determination that there was reasonable suspicion to stop the taxi. We review de novo whether founded suspicion existed. United States v. Sutton, 794 F.2d 1415, 1425 (9th Cir.1986); United States v. Maybusher, 735 F.2d 366, 371 & n. 1 (9th Cir.1984). However, the facts upon which the trial court based its conclusion are upheld unless clearly erroneous. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.1984) (en banc).

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officers may make a brief, investigatory stop of an individual upon less than probable cause if, under the totality of the circumstances, they can point to articulable facts which support a reasonable suspicion that the person stopped is engaging in or about to engage in a crime. They also may make investigatory stops of moving vehicles upon reasonable suspicion. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985); United States v. Brignoni-Ponce, 422 U.S. 873, 881-84, 95 S.Ct. 2574, 2580-82, 45 L.Ed.2d 607 (1975); Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979).

In this circuit, we have expressed the standard as "reasonable" or "founded suspicion," Sutton, 794 F.2d at 1426; United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir.1985), but we have held that there is no difference between the two. See United States v. Collom, 614 F.2d 624, 628 n. 3 (9th Cir.1979). Police also may effect an investigatory stop of a vehicle if they have founded suspicion that one or more of its occupants is wanted for a completed felony. Hensley, 105 S.Ct. at 680-81; United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.1986). Founded suspicion must exist at the time of the stop. United States v. Morrison, 546 F.2d 319, 320 (9th Cir.1976).

Appellant argues that officer Thornton lacked founded suspicion when he stopped the cab, since he had observed neither suspicious activity nor any evasive conduct by the cab, and since the taxi did not meet the description of the hit-and-run car. Appellant also contends that his failure to look at officer Thornton does not give rise to founded suspicion.

We have held in the immigration context that avoiding eye contact with officials taken alone cannot justify an investigatory stop. United States v. Mallides, 473 F.2d 859, 861 (9th Cir.1973), Nicacio v. INS, 797 F.2d 700, 704 (9th Cir.1985) (amended opinion) (failure to acknowledge authorities not indicative of illegal alienage). But where such action is accompanied by other suspicious behavior or circumstances, avoiding the attention of law enforcement officers may be a factor to consider in determining whether founded suspicion exists. See United States v. Nikzad, 739 F.2d 1431 (9th Cir.1984).

Appellant is also correct in noting that innocent activity, in the absence of indications of criminal conduct, will not justify an investigatory stop. United States v. Torres-Urena, 513 F.2d 540 (9th Cir.1975) (per curiam); see also United States v. Kerr, 817 F.2d 1384 (9th Cir.1987).

However, police officers do not operate in a vacuum. Conduct that alone may appear innocent can be suspicious when viewed in the context of other information or surrounding circumstances that the police are aware of. United States v. Cortez, 449 U.S. 411, 419, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); id. at 422, 101 S.Ct. at 697.

This circuit has upheld investigatory stops where facts known to the police make apparently innocuous behavior suspicious to the police. In United States v. Bautista, 684 F.2d 1286 (9th Cir.1982), a police broadcast went out moments after a bank robbery describing the robbers and reporting the discovery of their getaway car on a certain side street. Two police officers concluded that the suspects might flee by proceeding to a through street leading out of the area, and proceeded to that street. A few minutes after the first transmission, they saw two men meeting the description about three blocks from the getaway car. Though it had been raining, the men appeared dry. Id. at 1287.

We upheld an investigatory stop of the suspects. We noted that at the time of the stop, the suspects were on a likely escape route only a short distance from the getaway car, were the only people in sight who matched the description, and were dry, which was consistent with having just left a car. Id. at 1289.

In this case, Officer Thornton knew that the hit-and-run suspect had driven down a particular dead-end road only minutes earlier. He saw a cab with an elderly well-dressed passenger emerging from the road which was in a non-residential area at two o'clock in the morning. He knew that sailors and power plant workers might be present down Route 11 at such an hour. An elderly, well-dressed man seemed out of place in the area. Appellant avoided Thornton's gaze as the police car and cab passed each other.

Although this evidence was not as strong as that in Bautista, where police had a description of the robbers, it was nonetheless sufficient to arouse Thornton's suspicion and to justify an investigatory stop. As in Bautista, Officer Thornton spotted appellant in the expected escape route moments after the crime. Given the hour and the unlikeliness of someone of Ichiyasu's age and appearance being on Route 11, Officer Thornton had founded suspicion to stop the taxi.

Thornton limited his initial inquiry to where the driver had picked up his fare and who the passenger was. He did not ask the passenger to step out of the cab until he saw blood on his shirt and hands. This behavior comports with our mandate that the means used in investigatory stops be the least intrusive reasonably available. Kraus v. County of Pierce, 793 F.2d 1105, 1108 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987).

Thornton, relying on objective, articulable facts, reasonably suspected Ichiyasu might be the hit-and-run driver. This justified the stop at its inception under Terry, 392 U.S. at 20, 88 S.Ct. at 1879 as extended by Hensley, 105 S.Ct. at 680-81. He limited...