U.S. v. De Leon-Reyna

• Decision Date: 20 April 1990
• Docket Number: D,No. 89-2157,LEON-REYN,89-2157
• Citation: 898 F.2d 486
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Mario DEefendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 486

898 F.2d 486

58 USLW 2654

UNITED STATES of America, Plaintiff-Appellant, v. Mario DE LEON-REYNA, Defendant-Appellee.

No. 89-2157.

United States Court of Appeals, Fifth Circuit.

April 20, 1990.

Jeffrey A. Babcock, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellant.

Timothy L. Jackson, Houston, Tex., for defendant-appellee.

On Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, JOHNSON, and JOLLY, Circuit Judges.

THORNBERRY, Circuit Judge:

This case involves the district court's suppression of evidence obtained following a warrantless investigatory stop made in good faith, but justified on factual information that was erroneous due to police negligence. Finding that the stop was in violation of the fourth amendment and that the good faith exception to the exclusionary rule does not apply, we affirm.

I.

On December 6, 1988, U.S. Border Patrol agent Ernesto Martinez was monitoring traffic on Highway 2050 for indications of alien and drug smuggling. During this time, Martinez noticed what appeared to be a welding truck, except that it carried no welding equipment. Instead, the truck was carrying a stack of plywood bound by nylon and metal straps. Martinez testified that he had read a government publication which stated that one method for concealing contraband was to create a compartment inside a stack of plywood. This publication was not introduced into evidence. As the truck passed by, Martinez observed that the driver appeared very nervous. He also noted that the truck appeared heavily loaded, was dragging a shock absorber, and "bouncing almost erratically." His suspicion aroused, Martinez began to follow the truck.

Martinez radioed the truck's license plate numbers "WM-1438" to headquarters. The dispatcher understood Martinez to say "WN-1438," however, and accordingly radioed back that the plates belonged to a 1973 Ford dump truck. Because the truck he was following was a 1982 Chevrolet pickup truck, Martinez surmised that some sort of illicit activity was afoot, and he pulled the truck over.

Defendant Mario De Leon-Reyna was driving the vehicle. Officer Martinez first inquired about defendant's citizenship, to which defendant answered that he was a resident alien. Defendant also produced a valid resident alien card. After asking defendant a series of questions about his intentions, Martinez suspected that the defendant was fabricating a story. Martinez obtained the defendant's consent to search the truck, after which he located a large, freshly-welded compartment beneath the vehicle. Martinez asked the defendant about the compartment, but the defendant denied any knowledge of tampering with the vehicle. Suspecting illegal drugs, Martinez radioed for a drug-sniffing dog.

After a short time, Martinez asked the defendant if he had proof of vehicle registration. The defendant produced the title to the truck, which matched the truck's license plates. Martinez radioed the dispatcher to run another check on the license plates. This time he received the correct information, and the license plate number matched the truck. Sometime before the dog arrived, ¹ Martinez arrested the defendant and placed him in the back of his patrol car.

When the dog arrived, it alerted to the compartment, and approximately 1,200 pounds of cocaine was discovered inside a cavity created in the plywood. Defendant was indicted for possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A). Defendant filed a motion to suppress the evidence, claiming that because the license plate registration check was erroneous, the stop of his vehicle was without warrant or probable cause.

The district court conducted a hearing on the motion to suppress. The dispatcher, Marjorie S. Roy, testified that radio communications with its agents is often strained at long distances, and that the policy for communicating license plate numbers is to use code words so that similar sounding letters would not be confused. The government concedes that Martinez was negligent for failing to follow proper radio procedures.

Based on this testimony, the district court granted the motion to suppress, holding that "the Government cannot justify a stop based on erroneous information when the error is due to the negligence of its own employees." Once the registration error was eliminated, the court found that the remaining circumstances did not justify a stop. Although the district court did not question the good faith of the officer in making the stop, it noted that "as yet there is no precedent extending a good-faith exception to erroneous factual information relied upon by officers in making a warrantless stop." The government brought this appeal.

II.

The government first argues that a warrantless stop of a vehicle, based upon a good faith error, is reasonable and valid under the fourth amendment. The fourth amendment's protection against unreasonable searches and seizures applies to brief investigatory stops of vehicles. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). In order to satisfy the fourth amendment, "[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." Cortez, 449 U.S. at 417, 101 S.Ct. at 695; see also Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. at 2582; Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-79, 20 L.Ed.2d 889 (1968). "In particular, ... law enforcement agents may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity." United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985). The determination of "reasonable suspicion" involves the consideration of the totality of the circumstances, including the collective knowledge of all the officers in assessing the facts. E.g., United States v. Shaw, 701 F.2d 367, 377 n. 4 (5th Cir.1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984).

Although the circumstances that developed after the stop appear sufficient to justify a search of defendant's vehicle, at issue here is the propriety of the initial stop. It is certainly true that if the registration information provided over the radio was correct, then sufficient foundation for a brief investigatory stop existed. It is undisputed, however, that the registration information was incorrect due to error on the part of the government. ² Furthermore the government does not attempt to argue that the circumstances apart from the registration information are sufficient enough to justify an investigatory stop. ³

Thus, we are left with the primary justification for the stop: a registration report that was completely erroneous due to the officer's negligence in transmitting the vehicle's license plate numbers. We agree with the district court that reasonable suspicion cannot be grounded upon this type of information, and thus the totality of the circumstances fails to provide an articulable, objective basis for the stop.

The government emphasizes Officer Martinez's good faith reliance on the registration report. Although an officer is entitled to rely upon information provided by other officers, the collective information known to all the officers involved must be sufficient to amount to a reasonable suspicion. See United States v. Webster, 750 F.2d 307, 323 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985). See generally 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment Sec. 3.5(b) (2d ed.1987); 3 Id. Sec. 9.3(f), at 487-89. In Whiteley v. Warden, 401 U.S. 560, 568-69, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971), the Supreme Court excluded evidence obtained during an arrest made in good-faith reliance on a police bulletin, because the collective knowledge of the police who issued the bulletin was insufficient to support probable cause. The Court noted that "an otherwise illegal arrest cannot be insulated from challenge by the decision of the investigating officer to rely on fellow officers to make the arrest." Id. ⁴ On the other hand, in United States v. Hensley, 469 U.S. 221, 229-33, 105 S.Ct. 675, 681-82, 83 L.Ed.2d 604 (1985), the Supreme Court upheld evidence seized during a Terry stop even though the arresting officer relying in good faith on a "wanted flyer" did not know the factual basis of suspicion, because the "police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop." ⁵ The common lesson of Whiteley and Hensley is that the collective knowledge of all of the officers involved must provide sufficient grounds to justify a reasonable suspicion of criminal activity.

Here, there is no doubt that the collective knowledge of the officers failed to provide a sufficient basis for reasonable suspicion. Once the specious registration report is removed from the picture, Officer Martinez lacked sufficient grounds for a stop. Similarly, the dispatcher who issued the report had no basis for a reasonable suspicion. The government cannot bootstrap reasonable suspicion from an officer's good faith reliance on a radio report when the issuing agent or dispatcher lacked reasonable suspicion. The issuance of an incorrect registration report due to police negligence is no different from the distribution of a wanted flyer without reasonable suspicion in Whiteley. Although reasonable suspicion is not defeated by an after-the-fact showing that the information supporting reasonable suspicion was false, nevertheless the police may not rely upon incorrect or incomplete information when they are the ones responsible for that faulty information. 2 W. LaFave, supra, Sec.3.5(d),...