United States v. Edward D. Patterson, Richard L. Flintoff, Jimmie R. Oglesby, and Gregory C. Martinson

WRIGHT, Before NORRIS, POOLE and Judges. Circuit WRIGHT, EUGENE A. Judge: Circuit The appellants were convicted of narcot- Patterson, Flintoff, ics offenses. and Mar- tinson, jury, who were tried contend jurors that some prejudiced and that respects. court erred in Ogles- several by, court, who was tried challenges its suppress refusal to evidence taken from him after he stopped by agents. federal

I. FACTS Flintoff, accompanied by Shevalier1 and Wood, agents informant met undercover Drug Enforcement Administration (DEA) in arranged Tacoma and to sell them cocaine and agents paid heroin. The Sheva- drugs lier for the at the residence of Gus- pleaded guilty prosecution. 1. Shevalier appeal. to one count of a He does not agreed seven count indictment and to assist the driver’s seat remained Flintoff and She- Patterson. tafson2 a resi- agents with the running. then went Before knew valier with the motor Street, Mar- allegedly on South 104th arrested, dence agents Martinson two tinson’s,3 pick up drugs. Agent drove converged on the car. Rowe Fitz- Oglesby’s, Agent car to block of the got out Flintoff and Shevalier mo- Oglesby to turn off the gerald 104th residence ordered car at the agents’ Street Ac- agents sight. to drive around. get and told the with his hands tor out Shevalier, left cording to Martinson then Oglesby spontaneously emerged, As he cocaine, residence and returned agents gun there was a told the When he sold to Shevalier. which front Asked whether there seat. returned, co- delivered the Shevalier car, he there anything else in the said that sample them a caine. He later sold marijuana cocaine. After this ex- heroin. change rights he of his and was advised agents could sell Flintoff told the he car, pointing to of consented a search the more cocaine and heroin. In a second them out various items of evidence. transaction, agents Flintoff’s DEA followed residence, acquitted In March Patterson was and to Gustafson Patterson’s van Pat- got jury arising alleged out. Flintoff and of charges where Shevalier a from an resi- then went to 104th Street (POP) terson agents. DEA phencyclidine sale of to with which drugs, and returned Gus- dence Patterson, court, day, next same in the agents. sold and to the tafson Shevalier Flintoff, a and Martinson were tried before conspiracy in the to jury present case for Negotiations continued. Informant heroin, of possession distribute cocaine and reported that Martinson was the Wood cocaine, indi- distribute, of and with source Shevalier cocaine intent to and distri- agents to that his of heroin cated source heroin, bution of cocaine and in violation in Finally, Flintoff. December a was jury 21 U.S.C. 841 and 846. The found §§ larger arranged. transaction guilty them on all seven counts.4 Agents at a restaurant. met Shevalier Oglesby charged only in connection gave photograph a of cocaine After he them right and cocaine sales waived partial payment, they accepted for sale and jury to a trial. The cocaine distribution thereafter, agents Shortly arrested him. charges against were him dismissed spotted van and arrested its Gustafson’s court, conspiracy but he was convicted of In occupants, and Patterson. Gustafson possession and of cocaine distribute cocaine agents package found a scale and a van the with intent distribute.5 lactose, drugs. no but Patterson, Flintoff, and Martinson assert searching were Gustafson Other jurors prejudiced by six were knowl- that pursuant residence and Patterson’s day’s charges against edge previous ar- Oglesby warrant when and Martinson Patterson, they challenge and the court’s wagon. in brown Oglesby’s rived station jury refusal to instruct the on informant appearance An of similar automobile Martinson, who credibility. Flintoff and seen at the resi- earlier 104th Street challenge also testify, chose not dence, Oglesby but not known jury court’s to instruct the on the refusal agents. entered the residence Martinson right to remain silent. and was arrested. Gustafson, probation Patterson was sentenced to 4. and Martinson received concurrent who years’ imprisonment events, appeal. sentences of five five for his in these does not role years’ special parole for each offense. Flintoff years’ four received concurrent sentences of imprisonment allegation that 3. Martinson contested the years’ special parole. three agent An who later residence was his. searched the residence testified that noticed received concurrent sentences of there mail addressed Martinson. years’ years’ spe- imprisonment three and three parole. cial Davis, a lso Donovan v. 558 F.2d that the court erred

Oglesby contends (same (4th 1977) persons should not evidence taken Cir. suppress the refusing to jurors separate trials of ground have served as agents on the by the DEA from him accord, defendant); Virgin v. Par Islands founded probable cause or they lacked that rott, (3d 1977). suspicion. in the jurors participated When have JURY VENIRES II. OVERLAPPING n conviction, prior past or his defendant’s asserts, the United Patterson States guilt conclusively has been established in prospective half the deny, that does may be inevitable. presence, prejudice their (CR 79-2T) case jurors in the instant overlapping venires But we believe in his trial on other members of the venire (1) require otherwise reversal if 79-1T) charges (CR previous narcotics specific suggest significant circumstances appears It that six members of the day. prejudice (2) risk of examination or case, jurors in this panel became actual first jurors negate admonition of the fails to from the first having three been removed Compare, g., e. inference. challenge.6 panel by peremptory Meeker, States v. 1977) (prosecutor’s repeated implication of he was Patterson contends that unconsti- through leading past questions bad acts impartial jury, and tutionally denied an prejudicial despite judge’s to be likely contend that Flintoff and Martinson admonitions), Splain, with United were also affected. Patterson observes 1131, 1133(8th 1976) (witness’s prior that evidence of his arrest and indict- isolated, past “innocuous” reference to bad charges would not ment on narcotics have unlikely prejudicial; acts is to be evidence been admissible as direct of guilt “overwhelming,” evidence of convic 404(b), argues and he guilt, see Fed.R.Evid. affirmed). tion should be prior arrest and indict- that disclosure of his jurors through overlapping suggest signifi- ve- The circumstances here a ment to six prejudicial. prejudice. alleged cant risk The nires was of offenses day were similar and the trials one States, 378 In Leonard v. United U.S. apart. Although acquitted Patterson was (1964) (per 84 12 L.Ed.2d 1028 trial, no indication in the first there is that curiam), Supreme Court reversed jurors knew this. Marrero v. Flori- See previous defendant’s conviction because a da, (Fla.App.1977) (“a 343 So.2d guilty charge on a similar had been verdict unfairly prejudiced jury is bound to be against presence him in the of the returned against by the accused reason of the knowl- jurors panel from which were selected to edge crime”).8 of his arrest for another try charge. the second Id. at 84 S.Ct. Supreme at 1696. The Court found the The United States maintains that procedure “plainly “vigorous” a examination erroneous.” Id.7 See court conducted conviction, finding supported appar- it it 6. Counsel for Patterson and Martinson the second ently anticipated overlapping jury “strong convincing venires and evidence.” Leonard v. States, prior 1963), informed the court of their concern to the rev’d, 544, 545, 1696, 1696, first trial. But the court denied Patterson’s 378 U.S. 84 S.Ct. (1964) curiam). motion to move one of his trials from Tacoma (per L.Ed.2d 1028 to Seattle. Supreme in in- The Court’s decision Leonard case, At the trial in the instant the court convincing strong dicates that evidence of denied a motion to remove for cause the six guilty guilt will not save a verdict returned jurors day. present previous The who were jury. prejudiced permit court also refused to individual voir dire possible prejudice, examination on and it de- States, 8. See Marshall v. United also severance, mistrial, nied motions for and a new 310, 313, 1171, 1173, 3 L.Ed.2d 1250 trial. (1959) curiam) (jurors exposed (per were prior newspaper defendant’s con- article about jurors This circuit had noted that the who sat victions; prejudicial “not information because panel possible on the prejudice were not asked about tempered by protective procedures”). prior exposure from the and affirmed scope procedure voir dire that the prej- of negating any inference of jury, of transcript any reason- testing does used for does not create But trial udice. There no ex- would be prejudice that dis- support this contention. able assurances specifically targeted pre- present, if commits reversible amination covered experience. day’s error.” vious Id. at and alternates as a Addressing jurors We conclude that the examination anyone “Does . . . the court asked: group, appar inadequate. here The court . .. any any of defendants? know [D]o tainting the ently trying jury to avoid this case ... ? you anything know about of conveyed that informa through questions talked any you time as anyone Has already have. In jurors tion the did so individuals, you, of all about either fourteen questions doing, sufficiently to ask it failed defendants or all of of the individual [s/c] specific provide scope direction together, anything, anybody has men- them prejudice “any assurances that reasonable anything you about either individ- tioned if present.” would be discovered Id9 of them I defendants or all combined? ual Although prejudice the risk of hands, no so I assume none.” see case, we be perhaps clearest Patterson’s jurors It is not at all clear whether the lieve Flintoff and Martinson are also that day present were before who under- likely prejudice. They to have suffered questions refer to expe- these stood coconspirators. charged as Patterson’s any jurors whether rience. court asked We of this may infer the facts case any- of or “knew” the defendants knew juror prejudice against defendant anyone thing about “this case” and whether sale recently charged with the unlawful jurors al- had talked “all fourteen” carry persons to such narcotics would over “as about the defend- ternates individuals” jurors’ closely with him in the associated negative A answer would not neces- ants. minds.10 juror mean did not remember sarily that a indicate a sig- Because the circumstances prior ques- Failure to ask indictment. prejudice nificant and examination risk coupled jurors, with re- tions individual jurors negate of the failed to infer- counsel, permit questions by fusal such ence, Patterson, Flintoff, the convictions procedure. casts further doubt on the and must be reversed. Martinson trial have dis The court does broad dire, scope of cretion to determine the voir III. FAILURE TO GIVE Chenaur, v. 552 F.2d 302 United States INSTRUCTIONS 1977), (9th may take Cir. and the lead examining proposed instructions on jury prejudice. for United Martinson’s Baldwin, (9th right and on the credibility v. 1297 of informants11 States 1979). judge rejected by But trial so limits to remain silent12 trial if “the jury judge questions must the inform- 9. A trial be able to ask The determine whether should creating testimony by interest, prejudice to detect without it. If this has been affected er’s impossible, jurors likely prejudiced by prejudice against to be or defendant. is 3/30/79, Transcript, must be excused. & 434. See Devitt Black- mar 17.02. § jurors 10. The Patterson and Martinson saw Every in a defendant criminal case has together. This literal nexus be- handcuffed right testify. not to You must not absolute two the risk tween the defendants enhanced against guilt the de- draw inference of prejudice against that Martinson. Patterson would affect testify. he fendant because did not 3/30/79, Jury Transcript, See Criminal testimony provides § for the District of Columbia 11. The an informer who Instructions (3d 2.26 against pay, 1978). evidence immunity a defendant or for ed. punishment personal initially or for it from The court indicated that would vindication, advantage give changed apparently or must be examined but its this instruction greater weighed by jury closing arguments. with care mind after testimony ordinary of an witness. than

631 1112, 1121-22, Although we need not reach (1981); court. these 67 L.Ed.2d 241 Lake- we appeal, say, to decide the must n.7, issues v. Oregon, side 435 U.S. 338 98 retrial, upon such that both n.7, avoid error (1978); S.Ct. 1094 55 L.Ed.2d 319 given.13 instructions have been should States, 287, 293, Bruno 198, 200, 60 (1939). 257 L.Ed. Accomplice A. Informant Credibili- The United apparently con ty cedes that give failure to such an instruc give Failure an ac informant or tion is reversible error. It contends that complice credibility requires instruction re trial court met the requirement by in or versal when the informant accomplice’s forming jury during the impanelling “ testimony ‘important’ case,” e., i. process right of the defendants’ to remain it supplies strong guilt. evidence of preliminary silent. But such admonition is Rosa, Guam v. Dela See no substitute for the required instruction 1981) curiam).14 (per which must given be jury others as the clearly was an Wood informant. Shevali- prepares to deliberate.16 accomplice, er was an an also provide[d] informant because he evidence IV. OGLESBY’S DETENTION against personal a defendant for some ad- ” agents conceded they lacked vantage .. .. Id. at 1259. Martinson was probable Oglesby cause to arrest they when coming going, seen but the against case first encountered him. The United States primarily him relied on the testimony of maintains that suspi- “founded Wood and Shevalier. The instruction cion” an investigatory stop,17 rip- which given. have should See id. 1260.15 probable ened into cause for an arrest when the gun was discovered. Right B. The to Remain Silent Flintoff contends that he was ar- and Martinson chose testify, rest when the proposed and Martinson blocked an instruc his car and out, ordered explaining right tion Al him testify. and that all evidence instruction, though opposed Flintoff seized suppressed. thereafter should be He clearly that, Martinson was entitled to have it also contends even if he was not under 3481; given. arrest, see § U.S.C. Carter there was no investiga- basis for an Kentucky, U.S. -,-, tory stop. - serious, accomplice 13. Because this error is manifest and informant or instruction reversi- we have Our commented it. lack of com- accomplice’s ble the informant or testi- Patterson, ment on other assertions of error mony important. is At 1260. Flintoff, implies approval and Martinson no or disapproval. jury: We 16. note also that the court told the do not have to the “[Y]ou take witness stand Bernard,

14. See also United States v. 625 F.2d testify against yourself.” Transcript, and 854, (9th 1980) (refusal give 857 Cir. accom- 3/29/79, (emphasis added). at 11 The instruc- plice credibility required reversal). instruction 12, quoted supra, preferable, tion in note is suggest jury it does not that 15. The court tell the defendant’s testi- did the the assess credibility mony guilt. of witnesses. would establish his The United States re- We need not consider, however, Hoyos, on lies (9th United v. language States 573 F.2d 1111 whether the used 1978), proposition gener- Cir. require that a would reversal had it been used at accepta- al instruction effect can be an appropriate time. credibility ble substitute for the informant in- Hoyos, struction. But the court determined - generally Cortez, 17. See United States v. question that witness in was an “infor- -, -, 690, 694-95, U.S. 66 agent. mant” because he was a salaried Id. at (1981); Williams, L.Ed.2d 621 Adams v. 407 1116. The court added in if dictum that even 143, 49, 1921, 1923-25, 92 U.S. S.Ct. 32 146— informant, the witness an was there no was Ohio, 1, (1972); Terry L.Ed.2d 612 v. prejudice. Id. 16-19, 1868, 1877-78, 88 20 889 S.Ct. L.Ed.2d Rosa, (9th Guam v. Dela 644 F.2d 1257 Cir. (1968). 1981) (per curiam), case, recent more reaf give specific firms rule that failure to 632 continuing the with law en- or or encounter Stop Arrest? A. Id. at 755 (citations forcement officers.” with If the arrested defendant defendant omitted). We concluded that the cause, is no there need probable

out a knock at answered arrested stop investigatory an whether determine agents the door of his home confronted v. justified. United States have been would into custo- guns with who took him drawn Strickler, (9th 1974); 380 Cir. Id. dy. at 755-56. Ramos-Zaragosa, 516 States v. see United Strickler, v. placed United States In we 1975). (9th 144 Cir. F.2d defendant great weight on the fact that the has occurred Whether an arrest leave. F.2d at 380. not free to 490 surrounding circum “depends all of Strickler, Oglesby, had been observed like stances, including the extent that freedom in an near a home under surveil- automobile degree curtailed and the of movement is Id. at investigation. drug lance in a effec authority of used to type force or was ar- We defendant concluded Harring v. United States stop.” tuate the rested encounter at the outset ton, 1981) (9th 1186 Cir. police restriction of because “[t]he whether, omitted). question (citation com- ‘liberty of movement’ was Strickler’s circumstances, all of “a reasona under police and plete when he was encircled person he was under would conclude ble with official orders made confronted Id. arrest.” Id. at 380.18 gunpoint.” Strickler, we held in United Relying on Among the considerations in deter Beck, (9th 1979), States v. 598 F.2d 497 Cir. occurred, mining arrest has du whether an agents that an occurred when nine arrest critically important. of detention is ration even stopped carrying suspects, a taxi three York, Dunaway v. New 442 See U.S. case, though, present as in the 2253-58, 206-16, 99 60 L.Ed.2d Id. at 500-01. guns. their not drawn Chamberlin, States (1979); United 824 (9th (deten 1980) 644 F.2d 1262 at 1266 Oglesby contends that the Strickler police following 20 minutes tion in car for restric complete line of cases forecloses If, improper). stop reasonable held time, with liberty, tion of even for a short circumstances, person an innocent probable disagree. out We Al cause. expect to be af reasonably released would though has not our treatment of the issue questioning, likely we are less ter brief ambiguity, Oglesby’s entirely been free v. Har United States arrest. See an contrary many find to our decisions position is rington, at 1186. F.2d that involve brief but com upholding stops plete personal liberty restrictions Johnson, In F.2d 753 purpose investiga would defeat of the 1980), suggested a different we tory stop.19 emphasis. “primary” that a con- We stated Strickler, determining whether arrest force sideration an In we indicated under the may has occurred “whether or the defend- used have excessive See In terminating F.2d at 380. ant was free to choose between circumstances. omitted). (footnote reasoning has Id. at Our in Strickler been chal- LaFave, lenged. Search Seizure: See 3 W. require a 19. The Amendment not Fourth does 29 A Treatise on the Fourth Amendment policeman precise in- who lacks the level of (1978). necessary probable for to formation cause To officers’ conduct must conclude that the shrug simply and al- to his shoulders arrest viewed from the outset be- be as an arrest escape low or a a crime to occur criminal liberty of cause the defendant’s restriction of may good police .... be the essence of [I]t complete ... movement then is to create response. adopt work an intermediate upon a test cast doubt most which would Williams, 143, 145, 92 S.Ct. 407 Adams v. U.S. investigation stops. typical stopping The 1921, 1923, (1972). L.Ed.2d 612 32 anything complete but cannot be as viewed liberty of for a time restriction on movement

633 Ramos-Zaragosa, again despite v. we having United States failed to find evidence occurred, wrongdoing. found that an arrest had but em- 598 F.2d at 502. stop The was designed not to phasized pointed their freeze the quo, status yield but to evidence of wrongdoing, guns suspects at the “under resem- circumstances bling the detention for custodial interroga- suggesting personal not fears for their safe- tion held be an arrest in Dunaway v. ty.” 516 F.2d at 144. New 206-16, York. 442 See U.S. at 99 S.Ct. Proscription of excessive force at Similarly, despite 2253-58. the broad merely corollary holding is to our language of Johnson, United States v. attempting an “officer to make an investi initial detention in that case was clearly a gatory may properly display detention some prelude interrogation. to custodial See 626 force when it apparent becomes that an F.2d at 754-56.22 individual will not otherwise comply with stop A valid is not transformed into request stop.” United States v. an arrest merely because law enforcement 522, Thompson, (9th 558 F.2d 1977), 524 Cir. agents momentarily person’s restrict a free denied, 914, 1466, cert. 435 U.S. 98 S.Ct. 55 dom of They movement. may impose such Accord, (1978). 504 L.Ed.2d United States a restriction to maintain the quo status Moore, 1171, (9th v. 638 F.2d 1174 Cir. while making an initial inquiry, provided 1980), denied, - U.S. -, cert. 101 S.Ct. displayed force is not excessive under 924, (1981); 66 L.Ed.2d 842 United States v. the circumstances. See United States v. Richards, 1025, (9th 500 F.2d 1028 Cir. Gomez, 1124, (9th 1126-27 denied, 1974), 924, cert. 420 95 U.S. S.Ct. 1981). A contrary result would leave 1118, 43 (1975).20 cases, L.Ed.2d 393 In such agents powerless perform their investi person stopped clearly go. free to gative functions without cooperation Moore, v. See 638 F.2d at suspects.23 1174.21 Applying standard, we have no Beck, In we acknowledged suspi- that “a difficulty characterizing agents’ initial cious may briefly stopped individual be encounter Oglesby. Had he attempted purposes detained for the inquiry of limited to drive away they approached him, after frisk, weapons ... or ‘to maintain the pursued could have him. See United quo status momentarily obtaining while Thompson, States v. 558 F.2d at 524. The ” more information’ .... 598 F.2d at 500 require Constitution does not them to have (emphasis added) (quoting Adams v. Wil- given him- a head He start. was in the liams, 146, 1923; 407 U.S. at 92 also driver’s seat running. with the motor Ohio, citing Terry 1, 22, v. 392 88 U.S. S.Ct. Blocking the car was a precau reasonable 1868, 1880, (1968)). 20 L.Ed.2d 889 tion to ensure that the inquiry would not be prematurely.24 terminated

We observed that the officers had fol- suspects lowed the days, for several essen- Ordering Oglesby from the car was also a hunch, tially on a stopped and had them precaution. reasonable Pennsylvania See White, cooperate,” seizure; 20. Cf. United States v. 648 F.2d 29 at desire to there is no -(D.C.Cir., 1981) (“What suspicion required), makes the case at even reasonable cert. denied, 944, 1527, hand difficult is the amount of force used to 98 S.Ct. 55 L.Ed.2d stop.”). (1978). effectuate the 542 Perez-Esparza, 22. See also United States v. Supreme 21. The Court has made clear that an 1980) (detention F.2d “seizure,” investigatory stop subject is a interrogation; probable custodial cause re- Fourth Amendment constraints. United States quired). Cortez, -U.S. -,-, 694-95, (1981). 66 L.Ed.2d 621 supra. seizure of 23. See note 19 person complete liberty, is a restriction of if Accord, LaFave, supra for a short time. Cf United States v. 3 W. note at 30 Wylie, U.S.App.D.C. (“an stop inevitably otherwise valid is not ren- (1977) (when merely “the citizen’s ‘freedom to walk dered unreasonable because the sus- away’ by anything pect’s is police not limited other than his car in was boxed cars in order Mimms, 106, 110, 330, 333, He was at the wheel with the motor run- 98 S.Ct. 434 U.S. His looking brown sta- (officer may ning, apprehensive. (1977) order 54 L.Ed.2d 331 the wagon general description tion matched stopped of for routine traffic driver out car leaving of automobile earlier seen anoth- an violation). logic permit to “def[y] It would in the same er residence under surveillance a minor traffic vio policeman to order investigation, agent Rowe informed and policeman’s for the lator out of the car similarity agent Fitzgerald of this after him to exercise the safety but not allow Oglesby’s. his to block The driving car Terry making a valid precaution same when instruments of the car contained band back suspected narcotics traffickers.” stop of view, Fitzgerald in had heard that plain and White, United v. F.2d States 29 at played in a suspected drugs of source (footnote omitted). -(D.C.Cir., 1981) circumstances, Ogles- Under these band.26 justified by’s appearance Although person Oglesby’s presence an in and innocent quo stop brief freeze status while reasonably position might have believed he agents inquired possible about his involve- was free the force used not go, not was being investigated. ment in activities person innocent excessive could - Cortez, v. See United States U.S. reasonably being have assumed he was tak- -, 101 S.Ct. at 696. custody en The indefinitely. stop into was arrest. an was Oglesby properly stopped Because investigation properly arrested

for probable appeared, cause convic- Objective Suspicion? Basis B. tion must be affirmed.27 requirement The essential for a CONCLUSION investigatory stop valid justi that it “be Patterson, Flintoff, The convictions of objective fied some manifestation that REVERSED. The con- and Martinson are is, the person be, stopped or is about Oglesby of is AFFIRMED. viction engaged in activity.” criminal v. Cortez, - U.S. -,-, POOLE, Judge, concurring spe- Circuit (1981) (foot 66 L.Ed.2d 621 cially. omitted). note and citations Based on all of in reversal of the convictions circumstances, I concur detaining “the officers Patterson, Martinson, and appellants of particularized must have a objective Flintoff, reasons ma- for the stated basis suspecting particular person affirming I also jority opinion. concur Id. stopped (citations activity.” criminal However, I Oglesby’s conviction. appellant omitted).25 possible to justify believe it is do not approach Oglesby off Martin- on a founded

Oglesby dropped officers’ Oglesby had never been son, suspicion analysis. home surveillance. who entered a 1980) moved”) (footnote (corrected being copy). prevent 751 & n. We it from omitted). stop was must therefore determine whether objective an based on manifestation criminal gun Oglesby’s had a came 25. statement that he activity. emerged car, other state- from the as he ments followed. anything, his Before he said Oglesby ques- disputed point and raised get he ordered to out car was blocked and was agent’s ability to see the band tions about the sight. stop initial his hands in If this in, he but district instruments when closed unwarranted, Oglesby’s statements immediate- question against resolved the factual court Oglesby following ly The inadmissible. law it are say finding its and we cannot justify settled that facts asserted well clearly erroneous. to officers at or must be known search the time seizure or See Sibron the search seizure. anything he had To ask whether York, 40, 63, New else, gun, quite after mentioned the cause). (1968)(probable Subse- 20 L.Ed.2d917 question refer to other The normal. could justi- provide “bootstrap” quent no admissions drugs. weapons. agent refer to did not Allen, fication. United States during by long seen the officers investi- “objective

gation. manifesta- be, was, or Oglesby was about to

tions” that activity vague criminal were

involved in things one of the

references officers us,

heard, a from source unidentified to

about the color of a car seen at another stakeout, during

point and the connec-

tion of someone with a band. Such tenuous cannot form the basis for found-

assertions silent, suspicion.

ed Had remained

I would that there was no basis for an hold

investigatory stop that his conviction

should be reversed. silent;

However, Oglesby did not remain

rather, immediately voluntarily told gun.

the officers that he had In these

circumstances, justification of the officers’

approach unnecessary. to him becomes prior Ogles-

Even without reason connect spon- once he wrongdoing,

taneously possession confessed to con- weapon, justified

cealed in tak-

ing I arresting it and in him. do not think justice stretching served for suspicion, especially

founded where ex- Hence,

ercise is not necessary. I would

affirm Oglesby’s conviction on these

grounds. Francisco, Cal., Ungar,

(cid:127)Donald L. San argued, petitioner; Michael D. Finne- gan, Ungar, Francisco, Simmons & San Cal., on brief. Tariq HAMID, Petitioner, Fisher, Justice, Dept, Washington, Eric C., argued respondent; D. Lauire Ste- IMMIGRATION & NATURALIZATION Filppu, Washington, C., ven D. brief. SERVICE, Respondent. No. 79-7000. Appeals, States Court of

Ninth Circuit. HUG, Before DUNIWAY Circuit July Submitted CROCKER,* Judge. Judges, and District Decided June 31,1981. July As Modified DUNIWAY, Judge: Circuit Supreme the basis of the deci

On Court’s Wang, 1981, - U.S. -, INS sion in Crocker, California, designation. sitting by *The M. Honorable D. Senior United Judge States District for the Eastern District of

Case Details

Case Name: United States v. Edward D. Patterson, Richard L. Flintoff, Jimmie R. Oglesby, and Gregory C. Martinson

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 15, 1981

Citation: 648 F.2d 625

Docket Number: 79-1368 to 79-1371

Court Abbreviation: 9th Cir.