United States v. Hernandez, 72-1981.

• Decision Date: 03 October 1973
• Docket Number: No. 72-1981.,72-1981.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramon Pedro HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

486 F.2d 614 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Ramon Pedro HERNANDEZ, Defendant-Appellant.

No. 72-1981.

United States Court of Appeals, Seventh Circuit.

Heard September 10, 1973.

Decided October 3, 1973.

Prof. Francis X. Beytagh, Notre Dame, Ind., for defendant-appellant.

Donald B. Mackay, U. S. Atty., Springfield, Ill., Max J. Lipkin, Asst. U. S. Atty., Peoria, Ill., for plaintiff-appellee.

Before CUMMINGS, PELL and STEVENS, Circuit Judges.

PER CURIAM.

After a jury trial, defendant was sentenced to concurrent terms of 5-years' imprisonment under three counts of an indictment charging him with the unlawful transportation of aliens, as proscribed by 8 U.S.C. § 1324(a)(2).¹

On the night of June 13, 1971, Corporal Kettman of the Illinois State Police in Pontiac, Illinois, was on a tour of duty in a patrol car. At 11:45 p. m. he observed a 1970 Ford van, bearing 1971 Illinois license plates number PF 8083, being driven by defendant three miles south of Odell, Illinois. Kettman required defendant to pull over and stop on the basis of the following message received over the police radio in his squad car:

"REPORT CAR AT LINCOLN ILLEGAL ENTRIES ALIENS WHITE FORD SPORTVAN BDL 70 MODEL SEVERAL MEX. SUBJECT IN IT COVERED UP BY BLANKET 71 IL PF 8083 LEFT LINCOLN 10 10P DRIVER ASK DISTANCE JOLET" (sic)

This bulletin was transmitted from the Illinois State Police headquarters in Springfield, Illinois, to the Pontiac Police Department, which in turn dispatched it to police cars operating out of Pontiac. The bulletin was apparently inspired by observation of the van containing "people in the back * * * under covers * * * who would not show themselves" at a service station in the vicinity of Lincoln, Illinois. The record does not disclose who observed the van and notified the police, but defendant's brief states "Officer Kettman believed the information was called in from a service station" in Lincoln.

After his van was stopped, defendant left the vehicle. Upon being asked for his driver's license, he replied that he did not have any. Kettman's fellow officers shone their flashlights into the windows of the van and observed numerous persons lying inside under blankets. Defendant was put under arrest at the scene and the twenty occupants of the van were removed and searched "for their own protection." Kettman asked defendant "if he was hauling wetbacks," and he admitted that he was. He was arrested for driving without a driver's license.

A motion to suppress was filed, urging the district court to exclude "all evidence and testimony concerning the possession of alleged illegal entrants being present in his defendant's motor vehicle on June 13, 1971." The principal ground for the motion was that the only basis for stopping the van was the above-quoted police bulletin which contained "no reference to the identity of the person who supplied the information nor to the credibility or reliability of the informant."

Careful analysis requires recognition of the fact that three legally separable events, viz., stopping the van, arresting defendant and searching the van, occurred in rapid succession after Corporal Kettman turned on his flashing light behind defendant's van. But stopping the van, briefly questioning the occupants, and observing anything which could be seen from outside the van constituted only an investigatory stop. Whiteley v. Warden, 401 U.S. 560, 566-567, 91 S.Ct. 1031, 28 L.Ed.2d 306. This was followed by the arrest of Hernandez and the search of the van.

Because of the information contained in the police bulletin, it is clear that Corporal Kettman had authority to stop defendant and conduct temporary questioning. Under the rationale of Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, we conclude that the facts available to Kettman at the moment he stopped and questioned defendant "`warranted a man of reasonable caution in the belief' that the action taken was appropriate." As Chief Justice Warren there observed, "A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest."

A recent decision elaborating these principles is Adams v. Williams, 407 U. S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, where the Supreme Court sustained an investigatory stop of a suspect in a parked car. In that case the "stop and frisk" officer had been advised by an informant that "an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist" (at p. 145, 92 S.Ct. at p. 1922.) As the Court there stated:

"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or to allow a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. * * * A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Id. at 145-146, 92 S.Ct. at 1923.

Applying these principles to the present case, we believe that Corporal Kettman acted justifiably in responding to the police bulletin even though the bulletin was insufficient to support an arrest or search warrant. Here the police bulletin described defendant's vehicle by year, model and license plates and stated that it carried Mexicans, covered by blankets, who had entered the country illegally. When stopped, it was on a route from Lincoln to Joliet at an appropriate time, just as indicated in the bulletin. Clearly, sufficient criminal behavior was outlined in the radio dispatch to justify this investigative stop.² Once the van was stopped, its illegal contents were in plain view and there was probable cause for the subsequent arrest and search.

To support reversal, defendant relies principally on Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306. In that case, an arrest warrant was issued without probable cause. Subsequently, the Sheriff of Carbon County, Wyoming, issued a statewide radio bulletin describing Whiteley and his companion and requesting the assistance of other law enforcement agencies in apprehending them. City police officers in Laramie, relying on the radio bulletin, stopped, arrested and searched the defendants. The Supreme Court held that the Laramie police had no probable cause to make the arrest and search incident thereto, because the radio...