U.S. v. Thomas, 86-1353

Citation863 F.2d 622
Decision Date22 December 1988
Docket NumberNo. 86-1353,86-1353
PartiesUNITED STATES of America, Plaintiff/Appellant, v. Robert THOMAS, Defendant/Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Sanford Svetcov, Asst. U.S. Atty., San Francisco, Cal., for plaintiff/appellant.

R. Bruce Finch and Richard Humphrey, Hayward, Cal., for defendant/appellee.

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

Before FLETCHER and REINHARDT, Circuit Judges, and KENYON, * District Judge.

KENYON, District Judge:

Robert Thomas was charged by indictment with two counts of illegal possession of firearms in violation of 18 U.S.C.A. (App.) Sec. 1202(a). Defendant filed a motion to suppress seeking the suppression of all evidence seized without warrant. The government response included a declaration of the investigating and arresting officer, Allen Siegel. The district court held an evidentiary hearing in which Officer Siegel testified. The motion to suppress was granted at the conclusion of the hearing, and the district court articulated its reasons for granting the motion on the record. The district court later issued its written order granting the motion to suppress on June 19, 1986. The government filed a motion for reconsideration of the order; the district court denied this motion by written order on October 23, 1986. The government appeals both orders. We affirm the district court, but on different grounds. We uphold the initial stop as being based on founded suspicion, 1 but find that the subsequent detention and frisk were not justified by the facts of the case.

I. Factual Background

At 3:59 p.m. on February 6, 1986 a San Francisco storeowner made a phone report to the police that two men were offering counterfeit money to passers-by at 16th and Valencia Streets. The storeowner described the two as follows:

Black men in their late 30's, early 40's, 5'9", 5'10", one wearing a dark blue, navy wool cap, glasses, and a light tan coat, the other wore a brown plaid suit.

About three minutes later, the police dispatcher issued a broadcast that two men were supposedly offering counterfeit money to people near 3040 16th Street and gave the following description of the two men:

[T]wo Negro males, 35-40 years, one 5'10" wearing a dark, blue cap, glasses, and a tan coat, the other wearing a plaid suit.

Officer Siegel of the San Francisco Police Department was approximately a block away from the scene of the alleged passing of counterfeit money when he heard the police broadcast. Officer Siegel was alone in a traffic patrol car at the time. Moments after hearing the broadcast, Officer Siegel saw a car attempting to exit out of an entrance to a bank parking lot at 16th and Hoff Streets, located across the street from the scene of the alleged passing of counterfeit money. Officer Siegel stated that his attention was initially drawn to the car because it was exiting the parking lot the wrong way. Officer Siegel activated his patrol car's emergency red lights and pulled his patrol car in front of the suspects' car to effect the stop.

Before Officer Siegel got out of his car, he made a broadcast that he had spotted the suspects, gave the license plate number of the car, and said that he "was going to exit the car" and that he would be "taking these two people on." Officer Siegel later explained that "taking these two people on" meant that he was going to investigate the alleged counterfeiting scheme. As Officer Siegel walked towards the suspects' car, Thomas, the driver, got out of the car and walked towards the officer. When Officer Siegel asked Thomas what he was doing in the parking lot, Thomas replied that he was waiting for his wife who was in the bank. Officer Siegel told Thomas that he was investigating a counterfeiting scheme and asked Thomas for his driver's license as identification, which Thomas voluntarily gave to the officer. Officer Siegel examined the photograph on the license and determined that it was of Thomas, but did not return the license.

Holding on to Thomas' license, Officer Siegel circled around Thomas in order to position himself so that Thomas and the passenger seated in the car were in his direct line of vision. Officer Siegel then asked Thomas if he had any weapons. When Thomas did not respond, Officer Siegel patted down the exterior of Thomas' clothing and felt what seemed to be a handgun in Thomas' jacket pocket. He took a gun from Thomas' pocket and placed Thomas under arrest for carrying a concealed weapon. After handcuffing Thomas, Officer Siegel called for back-up. When the other officers arrived, they approached the passenger of the car and detained him. He appeared to match the description of a suspect in an armed bank robbery that had occurred earlier that day. The passenger was wearing a tan-colored jacket and had long reddish hair. The victim teller was brought to the scene and identified the passenger as the bank robber. When the passenger was removed from the car, one of the officers noticed a second handgun in the front seat of the car and retrieved it.

We must address two issues: 1) Was there founded suspicion to justify the stop of Thomas? 2) If the stop was justified, were the subsequent detention and frisk of Thomas justified?

II. Standard of Review

Motions to suppress are generally reviewed de novo. United States v. Limatoc, 807 F.2d 792, 794 (9th Cir.1987) (citing United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir.1986)). As we explained in United States v. McConney, 728 F.2d 1195, 1202-03 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), mixed questions of law and fact usually require de novo review, although the clearly erroneous standard applies if the necessary analysis is predominantly factual in nature. Whether there was founded suspicion to justify an investigatory stop is such a mixed question of law and fact and therefore requires de novo review. United States v. Maybusher, 735 F.2d 366, 371 & n. 1 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). 2

III. Whether There was Founded Suspicion to Justify the Stop

Because it is undisputed in this case that a seizure (or investigatory stop) that required Fourth Amendment protection occurred, the first issue we must address is whether there was a founded suspicion of criminal conduct to justify the stop. The level of cause necessary to provide a sufficient basis for a brief investigatory stop was first outlined in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and further defined in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. at 417, 101 S.Ct. at 695. 3 In evaluating the lawfulness of the stop, the "totality of the circumstances--the whole picture--must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Id. at 417-18, 101 S.Ct. at 694-95. Founded suspicion must exist at the time the officer initiates the stop. United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir.1985). The totality of circumstances analysis applies to the stop of a moving vehicle. Id.

A fresh review of Officer Siegel's declaration and testimony demonstrates that the stop was justified. 4 By weighing the permissible factors articulated by Officer Siegel for making the stop--the suspects' age, sex, and race, 5 the number of suspects, the glasses worn by one of the suspects, the location of the stop, the closeness in time of the police broadcast and the stop, and the suspects' car exiting the parking lot via the lot's entrance--and the inferences that can be drawn from these factors, we find that there is enough to support a founded suspicion to justify the initial stop. 6

* * *

* * *

* * *

* * * Officer Siegel stated that the car exiting the wrong way from the parking lot initially caught his attention. Under the circumstances, we find that this was a permissible factor for the arresting officer to consider in making the stop. Officer Siegel could have reasonably drawn the inference that although the alleged counterfeiters were reported on foot, they could have easily had access to a car. This inference is supported by the close proximity of the stop to the scene of the alleged passing of counterfeit money and the brief lapse of time between the police broadcast and the stop. It was reasonable for Officer Siegel to infer that the alleged counterfeiters were leaving the area in a car that was parked in a lot across the street by exiting and that in their haste were exiting the wrong way from the parking lot. See United States v. Fouche, 776 F.2d at 1403 (inferences or deductions apparent to trained law enforcement officers may be considered under the totality of circumstances).

Officer Siegel stated that the suspects' car was causing congestion in the parking lot but acknowledged that the car was not causing traffic congestion on the street. There is little significance to the fact that Thomas was not violating any traffic laws in attempting to exit out of the entrance to the lot or even that there was no congestion caused in the street by his maneuver. "The test is not whether the conduct under question is consistent with innocent behavior; law enforcement officers do not have to rule out the possibility of innocent behavior." United States v. Sutton, 794 F.2d 1415, 1427 (9th Cir.1986). Based on his experience and training as a police officer, Officer Siegel's attention was reasonably drawn to the car, and he made a reasonable inference that the suspects driving the car were possibly...

To continue reading

Request your trial
158 cases
  • Reittinger v. Com.
    • United States
    • Virginia Court of Appeals
    • May 25, 1999
    ...unless subsequent circumstances renew the officer's reasonable belief that criminal activity may be afoot. See United States v. Thomas, 863 F.2d 622, 628 (9th Cir.1988); State v. White, 856 P.2d 656, 662 (Utah Ct.App.1993); Coleman v. United States, 337 A.2d 767, 771-72 (D.C.App.1975); see ......
  • United States v. Job
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 14, 2017
    ...dangerous." Minnesota v. Dickerson , 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ; see also United States v. Thomas , 863 F.2d 622, 628 (9th Cir. 1988). We review de novo whether a Terry stop was supported by reasonable suspicion. Crapser , 472 F.3d at 1145 (citing United Stat......
  • Timberlake By Timberlake v. Benton
    • United States
    • U.S. District Court — Middle District of Tennessee
    • January 29, 1992
    ...or Stewart in drug trafficking. Thus, he had no cause to detain either woman once he discovered their identities. United States v. Thomas, 863 F.2d 622, 628-29 (9th Cir.1988) (even though policeman's stop justified, subsequent detention and frisk unjustified where officer could see subject ......
  • State v. Taveras
    • United States
    • Rhode Island Supreme Court
    • March 22, 2012
    ...and articulable facts upon which to base a suspicion that she was armed and dangerous. The defendant, citing United States v. Thomas, 863 F.2d 622, 628–29 (9th Cir.1988), contends that when she was approached by Ptlm. Allen, defendant provided him with a “plausible explanation” for her pres......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT