Wilson v. Porter, 20490.

Decision Date03 May 1966
Docket NumberNo. 20490.,20490.
Citation361 F.2d 412
PartiesLawrence E. WILSON, Warden, Appellant, v. William Eugene PORTER, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Michael J. Phelan, Deputy Attys. Gen., San Francisco, Cal., for appellant.

Dean L. Bender, San Francisco, Cal., for appellee.

Before CHAMBERS, Circuit Judge, MADDEN, Judge of the Court of Claims, and HAMLEY, Circuit Judge.

MADDEN, Judge:

This is an appeal by the warden of the California State Prison at San Quentin from an order of the district court granting appellee's application for a writ of habeas corpus and impliedly invalidating the state court judgment of conviction under which appellee was being held in appellant's custody.1

On May 11, 1961, appellee was convicted by a California court sitting without a jury for possession of a firearm by a felon and for possession of a concealed dagger.2 The writ was applied for and granted on the ground that the evidence essential to appellee's conviction was obtained unlawfully in violation of appellee's constitutional rights.

The relevant facts are not contested. About 3 a. m. on the morning of August 16, 1960, two officers of the Ontario, California, police department stopped a car in the 500 block of West Holt Street in Ontario for a traffic violation. While so engaged one of the officers noticed appellee drive by heading west on West Holt Street. Approximately twenty-five minutes later the officers again saw appellee driving west in the 1400 block of the same street. On this second occasion they followed appellee's car a short distance and then turned on their red light to have appellee pull over. Immediately as the red light went on, one of the officers noticed a passenger in the car slide down in the seat as if to place something under the seat or on the floor. Appellee pulled to the curb, got out, and was asked for identification. No traffic laws had been violated.

The passenger could not get out because a high curb obstructed the right hand door. At the officers' direction, appellee moved the car forward and free of the curb. One of the officers walked to the right hand side of the car, requested the passenger to get out, and asked for identification. As the passenger opened the door, the officer, standing outside the car, shone his flashlight into the car and saw what appeared to be a gun barrel protruding from under the seat. The officer reached under the seat and found a .22-caliber pistol. At this time appellee and his passenger were told they were under arrest. Appellee stated he had borrowed the gun from a friend for target shooting and pleaded with the officers to give him a "break." Appellee and his passenger were then taken to the police station and searched. Concealed in appellee's back trousers' pocket was found a paring knife which had been sharpened on both sides to a point, thus forming a dagger.

The district court found these facts to be "barren of any justification for stopping of the car driven by appellee." The court found it unnecessary to determine whether the initial stopping of the car was an arrest or an informal detention falling short of an arrest because "driving an automobile in the pre-dawn hours — that and nothing more — provides justification neither for arrest nor for detention." (Emphasis in original.) The court concluded that because "the constitutional prohibition against unreasonable searches and seizures makes no distinction between detention without cause and arrest without cause," the action of the officers in stopping appellee violated his rights under the Fourth Amendment. Porter v. Wilson, 245 F.Supp. 396 (N.D. Cal.S.D.1965).

We conclude that no right of the appellee was violated when the officers stopped the car and that the subsequent seizure of the evidence upon which he was convicted was justified as pursuant to a lawful arrest. While it is clear that at the time appellee's car was pulled over probable cause for an arrest did not exist, it is also clear that not every time an officer sounds his siren or flashes a light to flag down a vehicle has an arrest been made. The initial act of stopping appellee's car was not an arrest.3 Granting that the constitutional prohibition against unreasonable searches and seizures makes no distinction between informal detention without cause and formal arrest without cause, there is a difference between that "cause" which will justify informal detention short of arrest and the probable cause standard required to justify that kind of custody traditionally denominated an arrest. Our concern here is what degree of cause will justify cursory, informal detention in circumstances which would not justify an arrest, and whether the officers met that standard in the particular circumstances of this case.

We take it as settled that there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for purposes of limited inquiry in the course of routine police investigations. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Busby v. United States, 296 F.2d 328 (9th Cir. 1961). A line between reasonable detention for routine investigation and detention which could be characterized as capricious and arbitrary cannot neatly be drawn. But due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers could have had reasonable grounds for their action. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.

One of the detaining officers in the instant case testified as to the facts of appellee's detention at the preliminary hearing, but he did not state in so many words what considerations led him and his partner to stop the car. But where the record discloses circumstances which could have moved an officer in the reasonable exercise of his duty to the action taken, we need not look for a reconstructed, after-the-fact explanation of what may have been nothing more at the time of the occurrence than the instinctive reaction of one trained in the prevention of crime.

When the officers first saw appellee's car, they paid it no particular attention. When they saw the same car twenty-five minutes later, headed the same way on the same street and only a few blocks away, their suspicions were aroused. We cannot say that the circumstances of a car making inordinately slow progress along a street in the small hours of the morning could not reasonably have aroused the suspicions of a local officer alert to the unusual within his beat, and lead him to investigate. As this court stated in Frye v. United States, supra, 315 F.2d at 494:

The local policeman, in addition to

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190 cases
  • United States v. Thompson
    • United States
    • U.S. District Court — District of Delaware
    • November 19, 1968
    ...125 U.S.App.D.C. 43, 365 F.2d 976 (1966) (police may question person though questioning may involve momentary detention); Wilson v. Porter, 361 F. 2d 412 (C.A.9, 1966) (brief detention for purposes of limited inquiry in course of routine investigation not unconstitutional when founded on so......
  • Gilbert v. United States
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    • U.S. Court of Appeals — Ninth Circuit
    • October 24, 1966
    ...circumstances" it appears that the detention was based upon "reasonable grounds" and "was not arbitrary or harassing." Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966). Supporting authority from this court includes Davis v. People of State of California, 341 F.2d 982, 986 (9th Cir. 1965); Lip......
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    • United States
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    ...inquiry. Lipton v. United States, 348 F.2d 591 (9 Cir. 1965); Gilbert v. United States, 366 F.2d 923 (9 Cir. 1966); Wilson v. Porter, 361 F.2d 412 (9 Cir. 1966); Cotton v. United States, 371 F.2d 385 (9 Cir. 1967). In Wilson, supra, the court wrote: 'Granting that the constitutional prohibi......
  • United States v. Almeida-Sanchez
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    • February 3, 1972
    ...stop an automobile for investigative interrogation of its occupants if he has "reasonable grounds" for such action. Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966); see also United States v. Oswald, 441 F.2d 44 (9th Cir. 1971). This doctrine is of no assistance to the government, howeve......
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1 books & journal articles
  • Founded Suspicion: the Ninth Circuit's Response to Almeida Sanchez
    • United States
    • Seattle University School of Law Seattle University Law Review No. 30-01, September 2006
    • Invalid date
    ...States v. Bowman, 487 F. 2d 1229 (10th Cir. 1973); . accord. United States v. Newman, 490 F.2d 993 (10th Cir. 1974). 20. Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), the seminal decision relating to founded suspicion, arose out of a routine police investigation rather than a border encou......

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