U.S. v. O'Connor

• Decision Date: 17 December 1981
• Docket Number: No. 80-1487,80-1487
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael Edward O'CONNOR and Charles Cary Davis, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 688

658 F.2d 688

UNITED STATES of America, Plaintiff-Appellant, v. Michael Edward O'CONNOR and Charles Cary Davis, Defendants-Appellees.

No. 80-1487.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 13, 1981.

Decided Oct. 5, 1981.

Rehearing Denied Dec. 17, 1981.

Alan R. Freedman, Asst. U. S. Atty., Las Vegas, Nev., for plaintiff-appellant.

Paul J. Schofield, Louis Wiener, Las Vegas, Nev., argued, for defendants-appellants; William R. Pritchard, Las Vegas, Nev., on brief.

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

Before SKOPIL and BOOCHEVER, Circuit Judges, and TAYLOR, ^* Senior District Judge.

BOOCHEVER, Circuit Judge:

On April 23, 1980, Michael O'Connor and Charles Davis were indicted for possession with intent to distribute fifty-four ounces of cocaine. They filed motions to suppress the cocaine contending that it had been illegally seized from Davis. Following an evidentiary hearing, the district court granted the motion to suppress finding that government agents lacked probable cause to seize a briefcase in which the cocaine was found. The government has appealed and we reverse. ¹

In June 1979, the Internal Revenue Service began an investigation of illegal wagering activities in Las Vegas. The investigation revealed a gambling operation involving a large number of people including David Cutter and O'Connor. On March 22, 1980, government agents, pursuant to a search warrant, searched Cutter and found a key to Room 605 of the Aladdin Hotel.

After discovering the key, the agents went to Room 605 and knocked on the door. O'Connor answered the door, but refused to allow the agents to search the room. Because the agents believed that O'Connor was conducting bookmaking activities in the room, they placed the room under surveillance.

Thereafter, agents observed two other suspects in the bookmaking operation leave the room. The agents also investigated the room's telephone records. This information, combined with the other previously gathered information, led the agents to conclude that bookmaking operations were being conducted in the room. Consequently, they sought warrants to search the room and the persons of O'Connor and Cutter.

While waiting for the warrants to be issued, an agent saw two men leave the vicinity of the room in rapid succession. ² The agent thought that the first man to leave was O'Connor and the second was Cutter. The first man got into a cab and it drove off; the second man drove off in a private car. The agent could not tell whether the men were carrying anything with them as they left the room. ³

Because they feared that their surveillance had been detected and the men might be removing evidence, the agents followed the cab and the car although they eventually lost the car. During the thirty-five minutes that Agent Kindt followed the cab, it drove evasively. While the cab was being followed, the search warrants were issued and, upon learning this, Kindt ordered the cab to stop.

Kindt walked to the cab and identified himself, but was surprised to discover the passenger was Davis, not O'Connor. In an effort to determine whether he had been following the wrong cab, Kindt asked Davis whether he had just come from Room 605. Davis said he had. Kindt testified that he had no information about Davis and did not have probable cause to believe that he had committed any crime. Because Kindt suspected that Davis took bookkeeping records out of the room, Kindt returned with Davis to Kindt's car where he questioned him regarding his reason for going to Room 605.

Meanwhile a second agent, who had arrived at the scene of the stop, interviewed the cab driver. Agent Stewart told Kindt that the driver said, "Yes, you can search the back of the cab, but my passenger told me not to let you have the briefcase." A few minutes later, Davis refused to claim ownership of the briefcase, but, nevertheless, refused to give his consent to its search, and stated that the combination was at home.

Agent Kindt then informed Davis that he was going to take the briefcase back to Room 605 of the Aladdin Hotel, where the other agents were already conducting the search authorized by the warrant. Agent Kindt told Davis he was taking the briefcase "no matter what he did" and asked Davis if he wished to accompany them back to the room. Davis acquiesced, saying, "You're the boss." Kindt explained to Davis that he was not under arrest, but Davis still agreed to accompany the agents back to Room 605.

The agents retained custody of the briefcase overnight and applied for a search warrant the next day. The search warrant affidavit recounted the above facts and said that Davis gave the cab driver $100 to lose the car following him. A warrant was issued on the same day and the briefcase was opened and searched. The search revealed fifty-four ounces of cocaine.

Following an evidentiary hearing, the district judge ordered the cocaine suppressed. Although the judge made no findings of fact or conclusions of law, he made several comments in the course of the hearing that suggest the grounds for his decision. The judge focused primarily on whether the seizure of the briefcase from Davis was supported by probable cause. The judge stated that if O'Connor rather than Davis had been in the cab, the agents probably would have had cause to seize the briefcase. Because the passenger in the cab was Davis, the court stated that it was doubtful that the agents had probable cause.

I. STANDARD OF REVIEW

The underlying facts leading to a probable cause determination are subject to the clearly erroneous standard of review. There has been some confusion, however, over the question of whether this standard should be applied to a judge's ultimate determination of probable cause. ⁴ We have held en banc, that ultimate findings of fact in pre-trial criminal rulings are reviewed as questions of fact, not law, United States v. Hart, 546 F.2d 798, 801-02 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 571 (1977) and this holding is applicable to probable cause determinations. ⁵

The Supreme Court, however, has admonished:

While this Court does not sit in nisi prius to appraise contradictory factual questions, it will where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental i. e. constitutional criteria established by this Court have been respected.

Ker v. California, 374 U.S. 23, 33-34, 83 S.Ct. 1623, 1629-30, 10 L.Ed.2d 726 (1963).

In this case, the only witnesses testifying regarding the seizure were government agents. The trial court did not doubt the veracity of their testimony. Thus, the basic facts are free from doubt and the question presented for review is whether the determination on the ultimate issue of probable cause was clearly erroneous.

We have independently reviewed the record in this case. Our review leads us to conclude that it was clearly erroneous for the trial court to hold that there was no probable cause to seize the briefcase.

II. THE STOP OF THE CAB

The appellees initially contend that the agents did not have probable cause to stop the cab. At the time of the stop, the agents possessed a warrant to search the person of O'Connor and the validity of the warrant is not contested. It is obvious that in executing the warrant, the agents could stop the vehicle in which they reasonably thought O'Connor was a passenger. That their good faith belief was incorrect does not make the stop invalid. See Hill v. California, 401 U.S. 797, 803-05, 91 S.Ct. 1106, 1110-1111, 28 L.Ed.2d 484 (1971). The district court properly rejected this argument.

The appellees next contend that once the agent discovered that the passenger was Davis, not O'Connor, there was no justification for Kindt's questioning of Davis. The government contends that limited questioning was permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such a detention may be based on a lesser quantum of evidence than the probable cause necessary for arrest and requires a reasonable suspicion that illegal activity is occurring or is contemplated. United States v. Orozco, 590 F.2d 789, 792 (9th Cir. 1979) cert. denied, 439 U.S. 1049, 99 S.Ct. 728, 58 L.Ed.2d 709 (1978). Under the facts as outlined above, the agent was clearly justified in asking Davis whether he came from Room 605 if only to determine whether the wrong person had been followed. After learning that Davis had come from Room 605, the agent was justified in asking further questions, particularly in view of the evasive action taken by the cab.

The appellees also contend that Davis was arrested without probable cause and, thus, the evidence obtained from the briefcase must be suppressed as a fruit of the unlawful arrest. We reject this argument because we believe that the facts demonstrate that Davis was not under arrest. United States v. Beck, 598 F.2d 497, 501 (9th Cir. 1979). The determination is to be made considering all the surrounding circumstances and ultimately depends upon whether the average person, innocent of crime, would reasonably think that an arrest was being made. Id., see also United States v. Johnson, 626 F.2d 753, 755 (9th Cir. 1980). The primary factor is "whether or not the defendant was free to choose between terminating or continuing the encounter ...." Id. The appellees contend that "the arrest of ... Davis took place when the taxicab was stopped," apparently because when the cab was stopped, it was hemmed in by three government vehicles. Such a show of force did not transform the stop into an arrest. See United States v. Moore, 638 F.2d 1171, 1174 (9th Cir. 1980) cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981) (pointing guns at taxi to halt it did not constitute...