U.S. v. Alvarez

• Decision Date: 20 March 1990
• Docket Number: No. 88-5304,88-5304
• Citation: 899 F.2d 833
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jack Manuel ALVAREZ, Jr., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 833

899 F.2d 833

UNITED STATES of America, Plaintiff-Appellant, v. Jack Manuel ALVAREZ, Jr., Defendant-Appellee.

No. 88-5304.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 1989.

Decided March 20, 1990.

Thomas J. Umber, Asst. U.S. Atty., Santa Ana, Cal., for plaintiff-appellant.

Marshall M. Schulman, Santa Ana, Cal., for defendant-appellee.

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

Before SNEED, REINHARDT and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

Appellee, Jack Manuel Alvarez, was indicted in a three-count indictment charging him with possession with intent to distribute cocaine (21 U.S.C. Sec. 841(a)(1)), possession of an unregistered firearm (26 U.S.C. Sec. 5861(d)), and possession of a firearm with the serial number removed (26 U.S.C. Sec. 5861(h)). Appellant contends that the district court erred in suppressing evidence seized after a stop of Alvarez' automobile.

Background

On May 12, 1988, at approximately 10:28 am, an unidentified male caller telephoned the Santa Ana Police Department with information of a possible bank robbery that was to take place that morning. The caller refused to identify himself but claimed that the robbery was going to happen "in about 10 minutes at the Bank of America on Eighth and Main. The man is driving a white Mustang GT and he's got explosives with him." The caller described the man in the car as "tall, dark, looks kinda Mexican and he's probably in the back of the bank." When asked how he knew what was going to happen, the caller stated, "I know it's going to happen. Just believe me, he's there."

Based on this information, several patrol cars were dispatched to the bank. Officers observed a white Mustang GT backed into a parking space facing the bank with a Hispanic looking male occupant. The officers observed the car for about five minutes. According to the government, "[a]s other police officers arrived at the bank, one of the police cars drove past the bank, within Alvarez' field of vision," after which the white Mustang GT left the parking lot. The police followed the car for a short distance and then pulled it over. One of the officers, using his public address system, ordered the suspect not to move and to keep his hands in plain view. Three officers approached Alvarez with their weapons drawn, and ordered him out of the car. Alvarez complied with all of the officer's instructions. While placing Alvarez' arm behind his back, one of the officers observed a bulge underneath Alvarez' jacket and removed a loaded nine millimeter pistol from the suspect's right side. Alvarez was handcuffed and a pat down search revealed another loaded nine millimeter pistol and two ammunition clips. The police then searched the trunk of the car and found a partially assembled belt-feed M-6 machine gun, a M-16 fully automatic rifle, ammunition for both of these weapons, and a substantial quantity of cocaine.

At the hearing on the motion to suppress the evidence found in the trunk, the anonymous caller was identified as Michael Soler, a personal acquaintance of Alvarez. At the time Soler made the call he was on bail awaiting trial in San Bernardino on charges of the sale and transportation of cocaine. Soler, at the hearing testified he had spent the morning with Alvarez on the day Alvarez was arrested. Soler testified he was going shopping at South Coast Plaza that day, but that, although out of his way, he followed Alvarez to the bank. When Alvarez turned into the bank, Soler went directly to a phone booth and called the police. Soler also testified that he was not working for the police officer when he made the call. The district court ruled that Alvarez had not met his burden of proof that Soler was acting at the behest of the government and that the motion to suppress could not be granted on that ground. ¹ 694 F.Supp. 734.

In granting Alvarez' motion, the district court concluded that it did not need to address the issue of whether the stop was an arrest because under either a test of probable cause or reasonable suspicion the stop was unlawful. ² The government appeals, and we now reverse.

Standard of Review

Whether there was sufficient founded suspicion to justify an investigatory stop is a mixed question of law and fact that requires a de novo review. See United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988) (Thomas ). Whether an arrest has occurred depends on all the surrounding circumstances and whether, under all the circumstances, "a reasonable person would conclude he was under arrest." United States v. Patterson, 648 F.2d 625, 632 (9th Cir.1981) (internal citations omitted); see also, United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir.1987) (Buffington ). Whether a search was lawful presents a mixed question of law and fact reviewable de novo. United States v. Linn, 862 F.2d 735, 739-40 (9th Cir.1988); see also, United States v. McConney, 728 F.2d 1195, 1204-05 (9th Cir.1984), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Discussion

A. Validity of the Investigatory Stop

The government's first challenge to the district court's ruling to suppress the evidence is that the initial detention of Alvarez' vehicle was legal. Specifically, the government maintains that the officers' detention of Alvarez was based upon a reasonable articulable suspicion of illegal activity.

In order to justify an investigatory stop there must be "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Thomas, 863 F.2d at 625. The stop is evaluated by looking at the "totality of the circumstances" and then determining, based upon the whole picture, whether the detaining officers had a particularized objective basis for suspecting the particular person of criminal activity. Cortez, 449 U.S. at 417-18, 101 S.Ct. at 694-95.

The question here is whether the anonymous tip was sufficiently corroborated by police observations to provide the officers with reasonable suspicion to warrant an investigatory stop. We assume that the tipster was not working with law enforcement officers to create the appearance of reasonable suspicion by which the stop and subsequent search might be justified. ³

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court, in deciding the weight of an anonymous informant's tip, applied a "totality-of-the-circumstances" analysis, requiring a balance assessment of the relative weight of all the "indicia of reliability." Gates, 462 U.S. at 235, 103 S.Ct. at 2330-31. In Gates, the details of an anonymous informant's letter were corroborated by police observation. The Supreme Court reasoned that the inherently suspect nature of an anonymous tip was diminished by independent corroboration by police of the letter's predictions of future activities of the suspect. Gates, 462 U.S. at 244-45, 103 S.Ct. at 2335-36.

The D.C. Circuit has held that an anonymous tip can provide sufficient reasonable suspicion when the tip "was corroborated in every significant detail by [the police officer's] pre-stop surveillance." United States v. McClinnhan, 660 F.2d 500, 502 (D.C.Cir.1981) (McClinnhan ); see also United States v. White, 648 F.2d 29 (D.C.Cir.), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233, 235 (1981).

In McClinnhan, the police were given a detailed description of the suspect and told that he had a sawed-off shotgun in a brief case. The police spotted a man fitting the description standing with a brief case. The police approached the man and initiated an investigatory detention and weapons frisk. They also conducted a warrantless search of the brief case which was next to the man.

The court noted "that it is possible for anyone with a grudge to fabricate a tip whose neutral details, such as clothing or location, would provide the [necessary] corroboration ... for a stop." McClinnhan, 660 F.2d at 503. Nonetheless, the court held that the officers' suspicions about the suspect, based on an anonymous tip that, while lacking facial indicia of reliability, was corroborated in every significant detail by the officers' pre-stop surveillance, justified an investigative detention of the suspect.

Reviewing the facts and surrounding circumstances of this case from the perspective of an experienced law officer, we conclude that the initial warrantless stop was proper because the officers had a reasonable suspicion that Alvarez was involved in criminal conduct. See Thomas, 863 F.2d at 626-27; United States v. Sutton, 794 F.2d 1415, 1426 (9th Cir.1986) (Sutton ). Here, the officers, through an anonymous tip, were informed that a "tall, dark, [male who] looks kinda Mexican" in a "White Mustang GT" was parked in back of the bank and was going to rob the bank. The police were also informed that the man had explosives. The police officers observed Alvarez sitting in a vehicle which fit the description given by the anonymous tipster. The vehicle was parked in the bank's parking lot and was unusually positioned--front end facing outward. The first police officer to arrive on the scene observed the car and its occupant for approximately five minutes; two other marked police units appeared on the scene. The appellant did not depart from the bank until one of these two marked police cars drove within the appellee's line of sight.

"When law enforcement officials corroborate the details of an anonymous informant's tip, the tip can give rise to a reasonable articulable suspicion." United States v. Rodriguez, 835 F.2d 1090, 1092 (5th Cir.1988) (Rodriguez--Fifth Circuit ). Here, the officers verified each of the details of the tip. These facts were consistent with the actions of a would-be bank robber who decided to take a break until...