U.S. v. Munoz, 81-1747

• Decision Date: 22 March 1983
• Docket Number: No. 81-1747,81-1747
• Citation: 701 F.2d 1293
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy F. MUNOZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1293

701 F.2d 1293

UNITED STATES of America, Plaintiff-Appellee, v. Roy F. MUNOZ, Defendant-Appellant.

No. 81-1747.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 7, 1982.

Decided March 22, 1983.

Stephen R. Sady, Portland, Or., for defendant-appellant.

Ellen F. Rosenblum, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

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

Before CHOY, TANG and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge.

Munoz appeals from his conviction for possessing and transporting a golden eagle in violation of 16 U.S.C. Sec. 668(a) (1976). ¹

He argues that the evidence should have been suppressed because it was found during a roving vehicle stop that was not supported by a founded suspicion. At issue is whether the practice of stopping all vehicles in National Parks during a roving patrol to check wood permits and ask about park use and game violations is permissible under the Fourth Amendment. We conclude that the stop violated Fourth Amendment rights and reverse.

FACTS

On December 31, 1980, Munoz invited a friend to go with him to Mount Hood National Forest to pick up a dead golden eagle that Munoz told his friend he found in a trap. Munoz drove his pickup truck to the White River Management Area located within the National Forest, where Munoz had left the bird hidden in a tree.

Munoz placed the eagle in the back of the truck along with a dead doe and the head of a buck deer. ² He covered the deer and the eagle with cut timber gathered from a cutting site and some logs picked up from the side of the road.

On that same day, Oregon State Police game trooper Patton and Oregon Department of Fish and Wildlife biologist Beck were patrolling the National Forest near the Wildlife Management Area. They were conducting a roving patrol in a Dodge pickup truck with the Oregon State Police insignia on the doors. ³ Patton was in uniform. They were stopping all vehicles in that area to check for wood-cutting permits, ⁴ to conduct a brief interview asking what park visitors had seen or done, and to check for possible game violations in the heavy game wintering area. ⁵

Patton and Beck saw Munoz's truck heading out of the park about one mile away from the forest boundary. From his truck, Patton waved for Munoz to stop when Munoz was about 50 to 75 yards away. At the same time he flagged Munoz, Patton saw the cut wood in the back of Munoz's truck, but the decision to stop the vehicle was made independently of that fact.

When Munoz stopped his truck next to Patton's, Patton saw deer hair on the front of Munoz's truck. Patton noticed Munoz's hands were covered with blood and saw more deer hair inside the cab of Munoz's truck. He told Munoz to get the deer out from under the wood in the back of the truck. After Munoz unloaded the wood and pulled out the doe, Patton saw bird tail feathers in the truck. Patton recognized the bird as a golden eagle when Munoz removed it from the back of the truck.

Munoz was charged with a misdemeanor violation of the Eagle Protection Act, 16 U.S.C. Sec. 668(a) (1976). The court denied Munoz's motion to suppress the physical evidence. Munoz pleaded not guilty and

waived jury trial. He was tried on stipulated facts and found guilty.

I. Applicability of Fourth Amendment

The Fourth Amendment is "implicated" in this case because stopping a truck and detaining its occupants "constitute a 'seizure' within the meaning of [that amendment], even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). ⁶

Officer Patton had neither probable cause to believe nor a reasonable suspicion that Munoz was engaged in criminal activity. ⁷ No exception to the probable cause requirement or the reasonable suspicion requirement governed that stop. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

II. Standard of Review

Regardless of whether we apply a clearly erroneous standard, United States v. Post, 607 F.2d 847, 849 (9th Cir.1979), or conduct an independent review, United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1108 (9th Cir.1976), we hold that the district court erred in denying the motion to suppress the physical evidence. Because the seizure violated Fourth Amendment rights, the resulting search of the vehicle was tainted, requiring suppression of the evidence. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

III. Application of State or Federal Law

Before analyzing the legality of the stop, we must address a preliminary issue. It was once the rule in this Circuit that the admissibility of evidence obtained by state law enforcement officials depended on the legality of their actions when measured under both state and federal standards. See, e.g., United States v. Lovenguth, 514 F.2d 96, 98 (9th Cir.1975) (per curiam). That rule was temporarily abandoned in United States v. Grajeda, 570 F.2d 872 (9th Cir.1978), which was later withdrawn and replaced by United States v. Grajeda, 587 F.2d 1017 (9th Cir.1978) (per curiam) (Grajeda II ). Since Grajeda II, we have avoided the question of whether the traditional rule is still valid. See, e.g., United States v. Wheeler, 641 F.2d 1321, 1322 n. 1 (9th Cir.1981); United States v. Collom, 614 F.2d 624, 627-28 (9th Cir.1979). Because we find the stop in this case illegal under both Oregon and federal law, it is unnecessary to resolve this issue.

IV. Oregon Law

The district court ruled that the stop by the Oregon game officials did not violate Oregon law, and cited State v. Tourtillott, 289 Or. 835, 618 P.2d 423, 425-27 (1980), cert. denied, 451 U.S. 972, 101 S.Ct. 2051, 68 L.Ed.2d 352 (1981). We must defer to a district judge's assessment and application of the state law of his district unless clearly wrong. See, e.g., Clark v. Musick, 623 F.2d 89, 91 (9th Cir.1980).

The district court apparently overlooked State v. Odam, 40 Or.App. 551, 595 P.2d 1277 (1979), aff'd by equally divided court, 290 Or. 160, 619 P.2d 647 (1980). In Odam, an Oregon game officer stopped the defendant pursuant to the officer's intention In contrast, Tourtillott involved a checkpoint stop designed to check hunters' compliance with the game laws and to gather statistics regarding the hunters' success. That case is readily distinguishable from Odam, however, because the subjective intrusion caused by a roving stop, as occurred in Odam and this case, is significantly greater than that involved in a checkpoint stop. See United States v. Martinez-Fuerte, 428 U.S. 543, 558-59, 96 S.Ct. 3074, 3083-3084, 49 L.Ed.2d 1116 (1976). We conclude that the district court clearly erred in upholding the stop under Oregon law.

                to stop all vehicles he saw in a certain area.  The stop was not based on any individualized suspicion of criminal activity.  Upon approaching the stopped vehicle, the officer observed criminal evidence in "plain view."    The Oregon court of appeals ruled the stop illegal, and affirmed the trial court's suppression order.  In doing so, the court rejected the dissent's argument that the stop was lawful because the officer applied a neutral, nondiscretionary criterion to determine which vehicles to stop, i.e., he intended to stop every vehicle he encountered.  595 P.2d at 1278-79.
                

V. Federal Law

The Supreme Court has twice reviewed the legality of roving stops made without any reasonable suspicion of criminal activity regarding the vehicle, its occupants, or its contents, and in both instances held the stops illegal. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). These cases recognize that stopping a vehicle constitutes a Fourth Amendment seizure, which calls for a balancing of the public's privacy interests against legitimate governmental interests to determine whether the seizure was "reasonable." Prouse, 440 U.S. at 653-54, 99 S.Ct. at 1395-1396; Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. at 2578-2579. In both cases, the Court's balancing analysis resulted in the subordination of vital and legitimate government interests to the public's interest to be free from unreasonable government intrusions.

A. Intrusiveness of the Stop

The privacy intrusion must be measured in terms of both the objective intrusion (i.e., the stop, the questioning, and the visual inspection) and the subjective intrusion (i.e., the generating of concern or fright on the part of lawful travelers). See Prouse, 440 U.S. at 656-57, 99 S.Ct. at 1397-1398; United States v. Watson, 678 F.2d 765, 767 (9th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982).

We recognize that the objective intrusion caused by stopping a vehicle is minimal. Accord Brignoni-Ponce, 422 U.S. at 880, 95 S.Ct. at 2579-2580 ("The intrusion is modest."). To say that the roving stop caused only a modest intrusion, however, does not conclude our Fourth Amendment analysis. The Fourth Amendment's reasonableness standard requires an examination of other critical factors.

One of those factors--indeed, perhaps the most critical factor in this inquiry--is the subjective intrusion caused by a roving patrol. The government argues that the subjective intrusiveness of the stop was minimal, ⁸ analogizing the public's privacy interest while visiting national parks to that of those engaged in pervasively-regulated industries. See, e.g., Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (upholding warrantless search of mine pursuant to Federal Mine Safety and Health Act of 1977); United States v. Biswell, 406 U.S. 311, 92 S.Ct.

1593, 32 L.Ed.2d 87 (1972) (...