USA v. Thomas, No. 99-10355

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: REINHARDT
• Citation: 211 F.3d 1186
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA,Plaintiff-Appellee v. ANDREW CHARLES THOMAS, Defendant-Appellant
• Docket Number: No. 99-10355
• Decision Date: 08 May 2000

Page 1186

211 F.3d 1186 (9th Cir. 2000) UNITED STATES OF AMERICA,Plaintiff-Appellee
v.
ANDREW CHARLES THOMAS, Defendant-Appellant. No. 99-10355 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 17, 2000
Filed May 8, 2000

Page 1187

COUNSEL: Rubin Salter, Jr., Tucson, Arizona, for the defendantappellant.

Jerry R. Albert, Assistant United States Attorney, Tucson, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CR-98-00158-RCC

Before: Henry A. Politz,¹ Stephen Reinhardt, and Michael Daly Hawkins, Circuit Judges.

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REINHARDT, Circuit Judge:

We are asked to decide whether the sound of a package of marijuana being dropped into a vehicle is sufficiently distinctive to provide law enforcement officers reasonable suspicion to stop and search the vehicle. We conclude that it is not and reverse the defendant's convictions.

I. Background

On December 23, 1997, agents of the Federal Bureau of Investigation (FBI) told Detective Daniel Jankowski of the Pima County Sheriff's Department that he "might want to pay particular attention to a certain house" in Tucson because there was "a suspicion that there was a possibility that there might be some narcotics" there. Jankowski began surveillance of the house that morning. He could see four cars at the house: a white Oldsmobile without license plates, a silver Pontiac Grand Am, and two cars that were disabled. At 9 a.m. he saw four individuals leave the house and drive off in the white Oldsmobile. Jankowski attempted to follow the car, lost it, and returned to continue surveillance of the house.

At approximately 1:30 p.m., Jankowski observed another man leave the residence with a bag, put the bag in the Grand Am, and drive away. This time, Jankowski radioed another officer and asked him to stop the Grand Am. That officer conducted the stop as requested, searched the bag, but found no evidence of narcotics.

At approximately 2:20 p.m., Jankowski observed a white Chevrolet El Camino, with two occupants, arrive at the house.² He noticed that the passenger, later identified as Michael Segovia, was one of the men who had left in the Oldsmobile that morning. The driver was the appellant, Andrew Thomas. Segovia got out of the El Camino and opened the garage door. Thomas then backed the vehicle half-way into the garage. From his observation post, Jankowski could see only the southeast corner of the garage's interior, where a large number of ordinary household items were stacked. He could see the front end of the El Camino, but not its rear. Segovia and Thomas went inside the garage, completely out of Jankowski's sight.

At this point, Jankowski heard three or four thumps from inside the garage. His testimony varied as to what he believed those thumps were. On direct examination at the suppression hearing, Jankowski testified that it appeared "that something was being loaded into the back end of the El Camino. " On cross-examination, Jankowski first repeated this general observation, but, when pressed by defense counsel, ultimately pronounced that the thumps were distinctively the sound of packages of marijuana:

If you've ever seen a large bale of marijuana being dropped onto a -onto something, it makes a -like a flat-sounding kind of thump that, to me, is pretty distinctive at times.

Later, at trial, Jankowski testified: "It was my opinion that something was being placed into the back end of the El Camino or something was being done to the El Camino. " He did not suggest during his trial testimony that he knew what was being placed into the vehicle, if indeed anything was.

After the thumping ended, Jankowski observed Thomas drive the El Camino out of the garage. Segovia closed the garage door and returned to the passenger seat, and the El Camino departed. The vehicle did not look any different than before.

Jankowski radioed two other officers to stop the El Camino. Upon doing so, these officers noticed the odor of marijuana coming from inside and saw what they believed was a controlled substance partially exposed in the vehicle's bed. They searched

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the vehicle and found five packages of marijuana in the bed, each approximately 12 or 13 pounds in weight, and a 20-gauge shotgun behind the front seat. Thomas admitted possession of the marijuana and made other incriminating statements. Following the seizures, other officers were summoned to the house. They obtained consent from the lessee to search the garage and found more wrapped packages of marijuana in an adjoining bathroom. The lessee later informed FBI agents that Segovia had paid him to store the marijuana.

The district court denied Thomas's motion to suppress evidence found during and as a result of the officers' stop of the El Camino. A jury found him guilty of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. S 846; possession with intent to distribute marijuana in violation of 21 U.S.C. S 841(a)(1); and knowing possession of a firearm by a felon in violation of 18 U.S.C. SS 922(g)(1) and 924(a). It acquitted him of knowingly using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. S 924(c). The district court sentenced Thomas to 41 months in prison, to be followed by five years of supervised release. This appeal followed.

II. Analysis

The Fourth Amendment allows government officials to conduct an investigatory stop of a vehicle only upon a showing of reasonable suspicion: "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Jimenez-Medina , 173 F.3d 752, 754 (9th Cir. 1999) (quoting United States v. Cortez , 449 U.S. 411, 417 (1981)). Reasonable suspicion requires "specific, articulable facts" which, together with "objective and reasonable" inferences, form a basis for suspecting that a particular person is engaged in criminal conduct. United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989). We review a district court's determination of reasonable suspicion de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988).

The government argues that three factors provided it with reasonable suspicion to stop the El Camino that Thomas was driving: (1) the information Detective Jankowski received from FBI agents notifying him that narcotics might possibly be located at the house; (2) Jankowski's observation of several people coming and going from the house; and (3) three or four thumps from the interior of the garage, which Jankowski stated at one point were the sounds of packages of marijuana being loaded into the El Camino. We consider each of these factors in turn.

A. First Factor: The FBI Tip

The government first points to the information Detective Jankowski received from the FBI. If a police officer relies on information from another government agency in making an investigatory stop, that information must itself be based on reasonable suspicion. United States v. Hensley , 469 U.S. 221, 232-33 (1985). The officer cannot simply defer to the other agency's suspicion without establishing the articulable facts on which that suspicion is based. Cf. Whiteley v. Warden, 401 U.S. 560, 568 (1971) ("[A]n otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest").

Jankowski testified that FBI agents told him that he "might want to pay particular attention to a certain house" based on "a suspicion that there was a possibility that there might be some narcotics" there. This is apparently...