U.S. v. Ricardo D., 89-10319

• Decision Date: 24 August 1990
• Docket Number: No. 89-10319,89-10319
• Citation: 912 F.2d 337
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. RICARDO D., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 337

912 F.2d 337

UNITED STATES of America, Plaintiff-Appellee, v. RICARDO D., Defendant-Appellant.

No. 89-10319.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 16, 1990.

Decided Aug. 24, 1990.

Jacqueline Marshall, Ralls & Bruner, P.C., Tucson, Ariz., for defendant-appellant.

Joelyn D. Marlowe and Bert Vargas, Asst. U.S. Attys., Tucson, Ariz., for plaintiff-appellee.

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

Before TANG, NORRIS and FERNANDEZ, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Ricardo D. appeals his conviction for juvenile delinquency in violation of 18 U.S.C. Secs. 5031-37, based on possession with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(B)(vii). Appellant argues that the district court erred in denying his motions to suppress evidence and statements. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We reverse.

I

The relevant facts are not in dispute. On the evening of May 17, 1989, United States Border Patrol Agent Philip Johnson positioned himself to survey a ranch located on Highway 92 south of Sierra Vista, Arizona. Based on his prior tracking of footprints from Mexico leading to the ranch, Agent Johnson suspected possible drug activity. At approximately 9:30 p.m., he saw five or six men cross the highway and disappear near the entrance walls to the ranch. About ten minutes later, a van briefly entered the ranch. Agent Johnson contacted two other agents, Garcia and Emery, to assist him in stopping the van.

With the agents in pursuit, the van stopped suddenly on the side of the highway. Agent Johnson testified that he saw "a young, thin man, not too tall" run from the van and jump a nearby right-of-way fence. Because the agents wanted to secure the van and its driver, they did not pursue the man. The van was filled with bundles wrapped in black plastic. Agent Johnson testified that he could smell marijuana.

Border Patrol and DEA agents briefed Deputy Sheriff Scott Bork of the Sierra Vista substation about the van, its contents, and the escape of a passenger. At about 11:15 p.m., the substation dispatcher received a call regarding a suspicious person at a general store near where the van had been stopped. Deputies responded to the call, but discovered that the suspect was a person known in the community and not involved in the van incident. As the deputies were leaving the store, a truck drove up and the driver asked the deputies whether they were looking for "a young Mexican kid." The driver stated that he had just dropped off a young Mexican male at a pay phone in Nicksville. The driver had picked up the male about one-half mile from where the van had been stopped.

Deputies Bork and Daniels, in two patrol cars, drove to Nicksville. Daniels had on his spotlight and Bork was using his high beams. As Bork drove up, saw a young man, Ricardo D., crouched behind a tree, approximately twenty feet from a pay phone and an adjacent restaurant. Ricardo made no attempt to leave when the patrol cars approached. Deputy Bork faced his car to illuminate Ricardo, walked up to him, patted him down, and directed him over to the patrol car. As they were walking to the car, Bork took hold of Ricardo by the arm and said "I don't want you running anymore." Ricardo replied that he would not run. Bork then had Ricardo sit in the back seat of the patrol car with the door left open, and proceeded to question him.

Bork asked Ricardo what he was doing in the area. Ricardo replied that his sister had dropped him off and that he had been visiting a friend. Upon further questioning, Ricardo told Bork that he attended a certain school in Tuscon and that the school was not currently in session. Deputy Bork responded that he knew school was in session in Tuscon. At this point, Ricardo admitted that he was not from Tuscon. Because he felt Ricardo was being evasive and lying, Deputy Bork notified the Border Patrol so that they could interview Ricardo. Bork also told Ricardo that if he kept lying, Bork could arrest him for providing false information.

Border Patrol Agent Emery arrived at the scene about five minutes later. He asked Ricardo what he was doing in the area, and Ricardo replied that he had gotten lost in a field near the restaurant. He also said that he had stopped at a nearby house and had asked a man for a ride into town. On being asked how he came to be lost out in the fields, Ricardo replied that he was "just there." Agent Emery then asked Ricardo if he knew about a van that had been stopped on the highway. Ricardo first denied any knowledge of the van, but when asked again, Ricardo admitted that he was the person who had fled from the scene. Agent Emery then asked Deputy Bork to read Ricardo his Miranda rights.

Ricardo was then taken to the Sierra Vista substation. After stating that he had been told his Miranda rights and that he understood them, Ricardo agreed to provide the agents with a statement. Before the interview began, Deputy Bork telephoned Ricardo's sister and obtained her consent to the interview. Ricardo was within earshot of the telephone conversation.

The interview took place in a room about eight feet by six feet and lasted for approximately one hour. Four other officers were present when Agent Garcia conducted the interview. Agent Garcia testified that the atmosphere was relaxed, that the agents offered Ricardo a soda, and that Ricardo was generally relaxed and confident during the questioning.

The district court denied Ricardo's motions to suppress evidence and statements. After a bench trial, the court found Ricardo guilty of juvenile delinquency based on possession with intent to distribute marijuana.

II

In this case we once again confront the issue of when an investigatory stop exceeds permissible limits and becomes a de facto arrest. Appellant argues that he was arrested without probable cause, and that his statements should therefore be suppressed as the fruits of an unlawful arrest. Implicit in this argument is the contention that Ricardo was effectively under arrest when he was questioned in the patrol car, prior to his initial admission to Agent Emery that he was the person who had fled from the van. The government contends that the officers had reasonable suspicion to detain Ricardo, that the initial detention was nothing more than a Terry stop, and that reasonable suspicion ripened into probable cause upon Ricardo's admission to Agent Emery during field questioning.

A. Arrest

We review de novo the question whether the seizure of Ricardo prior to his formal arrest ¹ exceeded the bounds of an investigatory stop. United States v. Parr, 843 F.2d 1228, 1231 (9th Cir.1988). At the hearing on the suppression motions, the district court found that probable cause for the arrest existed, without any explicit finding of when the arrest occurred. Given that the government essentially concedes that there was no probable cause to arrest Ricardo prior to his first admission, the district court implicitly found that the field detention was nothing more than a Terry stop.

The Supreme Court itself has recognized that distinguishing a Terry investigative stop from a de facto arrest "may in some instances create difficult line-drawing problems." United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). As noted by the Court in the seminal case of Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), each case must be decided on its own facts. "Whether an arrest has occurred depends on all the surrounding circumstances, including the extent to which liberty of movement is curtailed and the type of force or authority employed." United States v. Robertson, 833 F.2d 777, 780 (9th Cir.1987). In reviewing the facts and circumstances of each case, we must be mindful of the narrow scope of the Terry exception--an exception based on a brief, street encounter between police and a suspect. To do otherwise would be to risk allowing the " 'exception' ... to swallow the general rule that Fourth Amendment seizures are 'reasonable' only if based on probable cause." Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 2257, 60 L.Ed.2d 824 (1979); see Florida v. Royer, 460 U.S. 491, 510, 103 S.Ct. 1319, 1331, 75 L.Ed.2d 229 (1983) (plurality opinion) (Brennan, J., concurring).

Under the totality of the circumstances, we conclude that the detention of Ricardo during field questioning by officers Bork and Emery amounted to a de facto arrest. With the high beams of a police car shining in his face, 16-year-old Ricardo was patted down, gripped by the arm, told he was not to run anymore, and directed to the back of one of two patrol cars present at the scene. In United States v. Baron, 860 F.2d 911, 916 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1944, 104 L.Ed.2d 414 (1989), we found coerciveness to be the critical factor in determining that an arrest had occurred. Similarly, in this case we conclude that taking hold of and isolating an unarmed, compliant juvenile in the back of a police car was unnecessarily coercive, and thus transformed the investigatory stop into an arrest.

Our conclusion is consistent with decisional guidelines concerning the scope of a permissible Terry stop. In general, the investigative methods used should be the least intrusive means reasonably available. Florida v. Royer, 460 U.S. at 500, 103 S.Ct. at 1325. Although the use of some force does not automatically transform an investigatory detention into an arrest, any overt show of force or authority should be justified under the circumstances. See, e.g., United States v. Holtzman, 871 F.2d 1496, 1502 (9th Cir.1989) (restraints justified by belief suspect was attempting to flee); United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir.1987) (given officer's knowledge of suspect's history of violence, show of force justified by fear for personal safety...