U.S. v. Bautista

• Decision Date: 24 August 1982
• Docket Number: D,Nos. 81-1286,81-1326,CABRERA-MARTINE,s. 81-1286
• Citation: 684 F.2d 1286
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuel BAUTISTA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Javierefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1286

684 F.2d 1286

UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuel BAUTISTA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Javier CABRERA-MARTINEZ, Defendant-Appellant.

Nos. 81-1286, 81-1326.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 8, 1982.

Decided Aug. 24, 1982.

Eugene C. Moscovitch, Santa Monica, Cal., for Bautista.

Victor B. Kenton, Los Angeles, Cal., for Cabrera-Martinez.

Fredrick M. Flam, Asst. U. S. Atty., Los Angeles, Cal., for the U. S.

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

Before CHOY, KENNEDY and FARRIS, Circuit Judges.

FARRIS, Circuit Judge:

Defendants Juan Manuel Bautista and Javier Cabrera-Martinez appeal their convictions for unarmed bank robbery. They argue that the district court should have suppressed certain statements, confessions, and other seized evidence. We affirm.

FACTS

On the afternoon of March 5, 1981, three men robbed the Woodland Hills, California, branch of Lloyds Bank. More than one thousand dollars was taken, including several bait bills with prerecorded serial numbers. Immediately following the robbery, a police report broadcast to units patrolling in the vicinity of the robbery described the bank robbers as being armed and of Iranian or Mexican descent. A follow-up broadcast further reported that the suspected getaway car had been sighted parked on Queen Florence Lane, a side street in an affluent residential neighborhood approximately one-half mile from the bank.

Los Angeles Police Officers John Gaspar and Richard Powers heard the broadcasts on their patrol car radio. Based on their familiarity with the general area, they concluded that the suspects might flee from the suspected getaway car by proceeding down a small hill to Wells Drive, an east-west through street leading out of the residential area. The officers decided to drive along this possible escape route toward the getaway car. Approximately 15 minutes after the first robbery report, the officers saw Bautista and Martinez walking along Wells Drive. At this point, Bautista and Martinez were one-half mile from the bank and approximately three and one-half blocks down the hill from the suspected getaway car. Bautista and Martinez matched the description of the robbers as being of Mexican or Iranian descent. The policemen also noted that Bautista and Martinez were shabbily dressed in shortsleeve shirts and appeared relatively dry, although it had been raining throughout the day and was raining at the time. The officers decided to stop them for questioning.

As the officers exited their patrol car, Bautista approached and volunteered that he had just gone to a nearby house and had asked the woman who answered the door to call a cab. Officer Powers frisked Bautista and Martinez for weapons and found none. Both were then handcuffed, and Officer Powers proceeded to the house to check Bautista's story. During the suppression hearing, Officer Powers explained the use of the handcuffs:

At that time a robbery of the bank had been committed and I believed that they were possibly the suspects and also because I observed tracks on their arms related to use of narcotics and also it was for officer safety as a precaution. I knew I was going to go to the front door of a residence to verify their story and I'd be leaving my fellow officer partner, John Gaspar, alone with the suspects. And because the suspects appeared extremely nervous and suspect Bautista kept pacing back and forth and looking, turning his head back and forth as if he was thinking about running.

The woman at the house verified that Bautista had asked her to call a cab, telling her that their car had broken down. However, when Powers returned and asked where the car was, Bautista replied that they did not have a car. The policemen then separated Bautista and Martinez by about thirty feet for further questioning.

During the separate questioning, the officers asked the defendants a series of questions concerning their identity, their companion's identity, the identity of the person who dropped them off in the neighborhood, the kind of car that person had been driving, their reason for being in the neighborhood, the person they were meeting, their knowledge of the street names in the neighborhood, and whom they knew in the neighborhood. The defendants gave inconsistent as well as suspicious answers. They did not know each other's names, the names of the streets, who dropped them off, or who they were meeting. Martinez said the car that dropped them off was green, and Bautista said it was blue. Martinez gave a false name and then was unable to spell it. At one point Bautista switched his story and said he had been dropped off to make a dope purchase and that he had $250 in cash for the transaction. When asked if he had any money for cab fare, Martinez also said he had about $250. Defendants claim this separate questioning lasted approximately 10-12 minutes. The policemen testified that the entire stop took only 10-12 minutes.

After comparing the inconsistent and contradictory responses, the officers told the defendants they were under arrest. They were taken to police headquarters, searched, and then given Miranda warnings. During the search, the police found several of the bait bills taken from the bank. Both defendants subsequently confessed to committing the bank robbery.

ANALYSIS

I. FOURTH AMENDMENT CLAIMS

Defendants argue that the initial stop was not supported by a founded suspicion of criminal activity, that the use of handcuffs constituted an arrest without probable cause, that the continued detention and interrogation exceeded what is permissible during an investigatory stop, and that at the time of the formal arrest the police still did not have probable cause. We reject the arguments.

A. INITIAL STOP

Defendants contend the stop was based on nothing more than the defendants' racial appearance, and that therefore the police did not have the founded suspicion of criminal conduct necessary under the Fourth Amendment to justify the stop. See Terry v. Ohio, 392 U.S. 1, 19-22, 30, 88 S.Ct. 1868, 1878-80, 1884, 20 L.Ed.2d 889 (1968). ¹

Race or color alone is not a sufficient basis for making an investigatory stop. United States v. Brignoni-Ponce, 422 U.S. 873, 886-87, 95 S.Ct. 2574, 2582-83, 45 L.Ed.2d 607 (1975); United States v. Mallides, 473 F.2d 859, 862 (9th Cir. 1973) (citing Davis v. Mississippi, 394 U.S. 721, 726-27, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969)). However, race can be a relevant factor. Brignoni-Ponce, 422 U.S. at 886-87, 95 S.Ct. at 2582-83. For example, a founded suspicion to make a border patrol stop can be based in part upon "the characteristic appearance of aliens." United States v. Harrington, 636 F.2d 1182, 1185 (9th Cir. 1980). Here, the police did not stop the defendants solely because their racial appearance matched the racial description of the robbery suspects. The police also noted the defendants' presence on a likely escape route one-half mile from the bank and a few blocks from the suspected getaway car, only 15 minutes after the robbery. The defendants were the only people in sight who matched the description of the robbers. The policemen observed that the defendants' dress was inappropriate for the weather, and that their relatively dry appearance, despite the rain, was consistent with having just left a car. These facts and circumstances justified the police officers' decision to make an investigatory stop. Treating racial appearance as one factor contributing to the founded suspicion of criminal conduct was not inappropriate.

B. USE OF HANDCUFFS

On the one hand, handcuffing substantially aggravates the intrusiveness of an otherwise routine investigatory detention and is not part of a typical Terry stop. On the other hand, police conducting on-the-scene investigations involving potentially dangerous suspects may take precautionary measures if they are reasonably necessary. The purpose of the Terry frisk is "to allow the officer to pursue his investigation without fear of violence." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). ²

Defendants argue that they were automatically under arrest once they were handcuffed because from that moment on they were "not free to leave." Defendants rely on United States v. Beck, 598 F.2d 497 (9th Cir. 1979), and United States v. Strickler, 490 F.2d 378 (9th Cir. 1974). We considered and rejected the same argument based on the same cases in United States v. Patterson, 648 F.2d 625, 632-34 (9th Cir. 1981). A brief but complete restriction of liberty, if not excessive under the circumstances, is permissible during a Terry stop and does not necessarily convert the stop into an arrest. Id. at 632-33. We specifically approved the use of handcuffs in United States v. Thompson, 597 F.2d 187 (9th Cir. 1979). The handcuffs were reasonably necessary in Thompson because the suspect had "repeatedly attempted to reach for his inside coat pocket, despite the officers' repeated warnings not to." Id. at 190. See also United States v. Purry, 545 F.2d 217, 219-20 (D.C.Cir.1976) (handcuffing of suspect permissible because the suspect "turned and pulled away" when the police officer placed an arm on him).

The initial handcuffing in this case was not excessive. It was not unreasonable for Officer Gaspar to take adequate protective measures before remaining with two men suspected of armed bank robbery, particularly when "the suspects appeared extremely nervous and suspect Bautista kept pacing back and forth and looking, turning his head back and forth as if he was thinking about running." Continued use of the handcuffs after Officer Powers had returned from the house presents a much closer question. But the fact is that defendants were suspected of robbery in which three men with guns participated and the third robber might still have...