USA v. Mattarolo
| Citation | 209 F.3d 1153 |
| Decision Date | 17 April 2000 |
| Docket Number | No. 98-10395,98-10395 |
| Parties | (9th Cir. 2000) UNITED STATES OF AMERICA,Plaintiff-Appellee, v. RICHARD NATHANIEL MATTAROLO,ORDER AN Defendant-Appellant |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
COUNSEL: Timothy L. Zindel, Assistant Federal Public Defender, Sacramento, California, for the defendant-appellant.
Samantha S. Spangler, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding. D.C. No.CR-96-00555-WBS
Before: Harlington Wood, Jr.,* Alex Kozinski and Pamela Ann Rymer, Circuit Judges.
Appellant, Richard Nathaniel Mattarolo, requests the Court to recall its mandate and vacate and reissue the amended decision in this case filed December 30, 1999, for the reason that his counsel, an assistant federal defender, admittedly neglected to file a timely Petition for Certiorari with the United States Supreme Court on his behalf after requested to do so by the Appellant.
The Opinion filed August 27, 1999, and amended December 30, 1999, is withdrawn and the mandate issued herein is recalled. A new Opinion is filed simultaneously with this Order. The mandate shall reissue forthwith. No petitions for rehearing will be entertained.
Defendant Richard Mattarolo appeals his conviction and sentence for possession with intent to distribute methamphetamine and for possession of a listed precursor chemical. The principal issue is the validity of the defendant's 1996 traffic stop and the scope of the search that followed which led to his arrest and conviction. The district court held an evidentiary hearing on the defendant's motion to suppress the evidence seized at the traffic stop and denied it. After subsequently being found guilty by a jury, the defendant appeals, challenging the denial of his motion to suppress and raising several other less substantial issues.
Both the arresting officer and the defendant testified at the suppression hearing. The district judge found Officer Brian Banning's testimony credible but not the defendant's. Officer Banning was a fourteen-year veteran of the Sacramento County Sheriff's office, most of that time spent on patrol. He had experience on a "high impact patrol team" funded by a federal grant for crime suppression. He had also served as a police instructor. We review a district court's factual findings at a suppression hearing for clear error and its application of the law de novo. United States v. Kemmish, 120 F.3d 937, 939 (9th Cir. 1997). Finding no clear error, we accept the district court's ultimate finding of facts, though largely disputed by the defendant. Those factual findings, in our view, are clearly supported even by the cold suppression hearing transcript we have reviewed.
On April 10, 1996, about midnight, Officer Banning was in his marked squad car along a county road he described as a "pretty dark secluded road." When the officer first saw the defendant's pickup truck it was nosed into the driveway of a fenced construction storage area, the gate to which was closed. The defendant was backing out of the driveway with a three-foot square crate, not a solid box, in the back of his pickup. Inside the crate's frame the officer could see something unidentifiable wrapped in plastic. Officer Banning was familiar with that construction yard. At that hour of the night there was no business activity. It was not the customary time for pickups or deliveries. When the pickup truck backed away and proceeded down the road, Officer Banning followed. By his radio he checked to see if the truck had been stolen. Before receiving an answer, however, the officer stopped the defendant as he was suspicious that some type of criminal activity was taking place at that nonbusiness hour on that secluded road. He knew there were crated items in the storage yard though secured by a fence. He considered the fence, however, easy to breach. In that immediate vicinity Officer Banning had previously been involved in the recoveries of stolen cars, drug arrests, and arrests involving guns and burglaries.
As soon as the officer initiated the stop, the defendant immediately got out of his truck and walked swiftly back toward the squad car instead of waiting for the officer as is customary during traffic stops. The officer got out of his squad car and asked the defendant to stop where he was, which the defendant did near the left front fender of the squad car. The officer asked the defendant if he had a gun, and the defendant responded he did not. The officer then asked if the defendant would object if he "checked him real quick," to which the defendant responded "go ahead." The officer directed the defendant to turn around and face toward his truck so he could pat him down. The officer's "patdown" consisted of a brushing past the defendant's chest area with the flat of his hand looking primarily for a shoulder holster. He patted down the defendant's waist band and then the pockets of his sweat jacket and pants, but without inserting his hands. He noted a cigarette package, as he had seen several guns small enough to conceal in one of those. The next item of concern was in the defendant's left front pants pocket which the officer discovered as he pressed his hand against the defendant's pant leg. He described the object as a couple of inches long and about an inch in circumference. To determine if it might be a small pocket knife he closed his thumb and forefinger around it to see whether it was hard, suggesting a possible knife. Instead of anything hard he felt little chunks in plastic bags which he immediately recognized as drugs. He specifically denied that he moved his finger and thumb back and forth so as to manipulate the package to help identify the contents as drugs. He recognized the contents as drugs, he explained, because of the distinctive feel and his experience gained from thirty to forty patdowns in which drugs were found in people's pockets. The defendant at that moment started to swing around towards the officer, but the officer told him to "calm down," and then he went ahead and finished the patdown. The officer was concerned as it appeared that the defendant might fight or run. When requested, the defendant with shaking hands gave the officer his driver's license which was determined to be valid. The defendant's speech and demeanor, in the officer's opinion, showed extreme nervousness. The officer's backup arrived.
The defendant was asked if he had anything illegal in his pockets. When the defendant denied anything illegal the officer asked if the defendant would mind if the officer checked for himself. The defendant's response was, "Sure, go ahead." The officer started to reach into the defendant's pocket where he had detected the narcotics, but the defendant quickly pushed the officer's hand away saying, "No, no. " The defendant then reached in his own pocket and appeared to be trying to rearrange the objects in his pocket from top to bottom. He then pulled out a wad of bills, saying that that was all there was in the pocket. The officer again patted the outside of the defendant's pocket and determined that the drug package was still there. The officer described the defendant as seeming even more nervous, which caused the officer to believe the defendant might bolt and run. To avoid a fight, the officer handcuffed the defendant.
The officer next reached into the defendant's pocket and retrieved the drugs, while the defendant was claiming he could not be searched because the officer was violating his rights. The defendant then claimed the drugs were only for his personal use. It was later determined that the defendant had with him and in his truck about 260 grams of methamphetamines and 90 grams of ephedrine. No gun was discovered.
The motion to suppress was denied. A jury verdict found the defendant guilty, and he was sentenced to a total concurrent sentence of 264 months imprisonment.
As previously noted, the principal issue is the validity of the traffic stop and the patdown search which followed. The defendant had already been through part of this legal routine growing out of this same incident when he first failed in a preliminary hearing in a state court prosecution to have the search evidence suppressed. The defendant had been held for state trial on the drug charges, but the state charges were dismissed in favor of this federal prosecution. In this prosecution, the district court denied the defendant's motion to suppress the same evidence on the same grounds as had the state court, and which we now examine. We must analyze the stop and the frisk separately and determine the reasonableness of each independently. United States v. Thomas , 863 F.2d 622, 628 (9th Cir. 1988).
We view the above recitation of the facts, including the time of night, the neighborhood, and the truck with the crate leaving the construction site, to be sufficient to cause an experienced officer to reasonably conclude that criminal activity might be in progress. Terry v. Ohio, 392 U.S. 1, 21 (1968). A Terry investigative stop is justified if the officer has an objective basis for his suspicions based on all the circumstances. It is not a matter of hard certainties, but of probabilities. United States v. Cortez, 449 U.S. 411, 417-18. However, that standard requires more than an officer's "hunch," even a hunch that later turns out to be a good one. Terry, 392 U.S. at 27. A preponderance of the evidence to show proof of wrong doing is not realistically required at this stage. United States v. Sokolow, 490 U.S. 1, 7 (1989). Reasonable suspicion therefore can arise from information different in quality...
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