United States v. Hozie Chamberlin

CHOY, HUG, Before ANDERSON and Circuit Judges.

HUG, Circuit Judge: 26,1979 opinion of December is here- following opinion withdrawn and the appeals substituted. Hozie Chamberlin from a possession conviction of of a check stolen from the inmail violation of 18 U.S.C. principal on § this appeal is whether detention appellant following investigatory an resulted amounting in a seizure to an un- arrest, lawful requiring suppression of the evidence derived from that detention. The evidence; appellant suppress moved to denial of the motion he waived jury proceeded trial and to trial before the court on stipulated We find that facts. detention was unlawful and the motion to suppress granted. should have been We therefore reverse. (1)

The issues involved are: whether the investigatory stop Chamberlin by justified founded suspicion; (2) subsequent whether detention prob- amounted to unlawful without arrest cause; (3) able and whether evi- dence obtained of an was the fruit unlawful arrest.

Facts

On October 1978 at about 12:20 P.M. Diego Morse of the Police De- San partment, driving patrol, while on routine Chamberlin, appellant, observed Hozie Franklin, companion, walking Robert ture bill at the Universal Furniture Store. Park area in south- away the Chicano state- recognized denied that he Diego. Officer east San having Franklin as individuals at the Universal ment about been records for narcot- explained with extensive criminal that his Furniture Store and violations, property, receipt of stolen ics University lived on Avenue and mother Morse was forgery burglary. and Officer what the officer possibly this was activity was afoot suspicious that criminal say. point, him At this Officer Morse heard passed as he they looked worried because the Furniture go decided to Universal He drove back quickened pace. their and investigate the matter further. Store Robert the area about a minute later. with He drove to the store Chamberlin houses, between two Franklin then darted car. At the patrol still in the back of the at the out between the houses looked back manager employees in- store the running away. Appel- began and they Morse that knew Hozie formed Officer attempted also to flee but lant Chamberlin and that been in Chamberlin running because of his hampered from attempting negoti- an earlier store hour physical handicap. ate a check. Officer Morse showed them caught up with Chamberlin Officer bearing the check the name “Willie John- doing. what he was Cham- and asked him payee they son” as and identified it as the returning replied that he was berlin check Chamberlin had earlier tried to cash. furniture at the paying his mother’s bill Morse then Chamberlin un- Officer Universal Furniture Store. Officer Morse der arrest. Chamberlin had been detained away. run why then asked Robert had patrol twenty in the rear of the car for replied, “I don’t know Rob- Chamberlin picked minutes from the time he was first suspi- Morse’s ert.” This increased Officer up. cions because he knew that Chamberlin and possession was indicted for acquainted. Robert Franklin well mail. a check stolen from the 18 U.S.C. point, required ap- At this Officer Morse 1708. Chamberlin contended § pellant in the get Chamberlin to back stop and arrest were unlawful and moved patrol car so he could continue his search to all statements and evidence suppress for Robert Franklin. It was Officer stop obtained as a result of the and arrest. Morse’s intention to detain hearing The motion was followed investigation while attempted further to which Morse and other witnesses find Franklin. testified. The district court noted that this proceeded Officer Morse to Franklin’s motion, denied the was a close case and began working residence and back towards holding stop was lawful under Ter- the area from which Franklin and Cham- Ohio, ry v. 392 U.S. berlin had fled. Five minutes after Cham- (1968). The court re- district began, berlin’s detention Morse re- largely upon lied Circuit case of Sixth informing ceived a radio call him that a 663, (6th Pope, check lying point had been found near the 1977), flight in which the of the accused where Chamberlin and Franklin had been upon approach of an officer to they begun when to flee. He then court’s deter- major him was a factor in the went back to the area and obtained the suspicion reasonable for the mination that check, which was a United Treasury States Terry stop existed. The district court in bearing check the name “Willie Johnson” as upon focus the instant case did not payee. question of the lawfulness of the detention patrol subsequent car to the investi- pa- When Officer Morse returned to his check, gatory stop prior trol car to the interview with with Chamberlin became began nervous and to sweat. of the furniture store. It employees Officer Morse reinquired as to Chamberlin’s state- be noted that the district court did then should regarding paying Supreme ment his mother’s furni- not then have the benefit of ruling recent v. New waived Court’s counsel eventually made state- 200, 99 2248, 60 L.Ed.2d ments incriminated and drew sketches that (1979), which heavily bears this him in the crime. question. issue before the Court was whether the Rochester violated Discussion when, fourth and fourteenth amendments n We first examine the possible two intru- probable arrest, without cause they took rights protected by sions into the fourth custody, into transported defendant him and fourteenth amendments: station, to the and detained him there for interrogation. The Court stated: stop. When Officer Morse Amendment, The Fourth applicable Franklin, first observed Chamberlin and through the Fourteenth that knew both men had criminal records. Amendment, Ohio, Mapp 643, v. 367 U.S. He also observed that when these two men 1684, 81 (1961), pro- S.Ct. him, both noticed men looked worried and right people vides: The se- to be pace. quickened their A later minute while persons cure in their . against . . watching time, the two men for the second seizures, unreasonable searches and shall go Officer Morse observed Franklin be violated, not be and no shall Warrants houses, him, tween two look toward and issue, upon probable but cause . to run. begin attempted Chamberlin also be little petitioner There can doubt that noted, judge correctly to flee. As the trial in the was ‘seized’ Fourth flight Amendment of both men is a crucial fact he justified stop. involuntarily which sense when was taken investigatory Un circumstances, these der all the police station. justified making in an investigatory S.Ct., at 2253. The Court Ohio, stop of Chamberlin Terry 392 then “It must recognized noted: be 1, 1868, 88 (1968).1 S.Ct. 889 U.S. 20 L.Ed.2d whenever police a accosts an individ- 2. The detention. The de- away, ual and restrains freedom to walk in analyzed tention this case must be person.” Dunaway, he has ‘seized’ that 99 light of Court’s recent decision n.6, Terry quoting S.Ct. at 2253 Dunaway 200, New 442 U.S. 99 Ohio, 1, 16, 1877, 1868, 392 20 2248, 60 (1979). S.Ct. L.Ed.2d 824 In Duna- (1968). way, police suspected Rochester in Dunaway carefully analyzed The Court defendant had proprietor killed the of a between the of a distinction seizure Rochester, pizza parlor N.Y., but did not arrest, person re- purposes for which probable get cause to a warrant for cause, quires probable and the more limited The police his arrest. officers took the de- person by investigatory seizure of a a brief house,

fendant from a neighbor’s seated requires stop, merely which sus- reasonable police car, him a transported him to the picion. rejected suggestion The police headquarters, and him in an balancing of a multifactor test of “reasona- interrogation room. Although the defend- ble conduct under the circumstances.” ant arrest, was not told he was under emphasized Terry It a stop was would have been physically if restrained attempted narrow and was not to exception be extend- giving leave. After defendant his ed long prevailing Miranda the offi- so as to erode the stan- warnings, questioned cers the defendant. Defendant dards of cause. probable The Court stated: governing investigatory standards, 1. California law brief under both state and federal and stops thus, is the same question as the See federal law. In Re need not reach the which would C., 888, Tony 893-95, 957, posed 21 Cal.3d P.2d 582 state standard more restric 959-61, 366, Cal.Rptr. (1978). Orozco, 368-70 tive. States v. F.2d See United stop by (9th 1979); in this case was made a state officer. 792 n.1 Cir. United States v. investigatory stop proper Grajeda, We find that 1978). F.2d for less than a minute where the single, familiar standard is essential A or two. officers, only a brief only limit- and involved who have guide noted, Brignoni- as the Court to reflect on expertise ed time and general Terry extend Ponce refused to individual interests the social and balance had stated: balancing test but ized specific in the circumstances involved Indeed, recognition of our they confront. may question the driver “The officer consequent our reluc- dangers, these and im citizenship their passengers about protec- depart proven tance from the status, ask them to may and he migration rule, re- general tions afforded but explain suspicious empha- in the narrow limitations flected be based or search must further detention the balanc- employing sized in the cases Brignoni- probable cause.” on consent or ing narrowly 881-882, test. For all but those Ponce, at at intrusions, requisite defined “balanc- Accord, v. Martinez- 2580. ing” performed has been in centuries of Fuerte, supra, 428 U.S. precedent princi- and is embodied 49 L.Ed.2d 3074 at ple only that seizures are “reasonable” if at 2256-57. Dunaway, 99 S.Ct. by probable supported cause. emphasized that The Court in Dunaway, 99 S.Ct. at 2257. narrowly defined intru- all but these Court stressed that lesser standard justi- sions, must be longer detentions probable applied than cause was not to be prob- requirement fied the traditional merely during because the seizure occurred exists where cause able cause. Probable investigative stage an rather than an accu- the officer’s circumstances within facts and satory stage. quoting In from Davis v. reasonably knowledge and of which 721, 726-27, Mississippi, 394 U.S. 89 S.Ct. sufficient in trustworthy information are 1394, 1397, (1969) the Court of reasonable to warrant a man themselves stated: offense has in that an caution the belief person to argue being that the or is committed Fourth Amendment been

“[T]o does not at 2254n.9. apply investigatory stage Dunaway, to the be arrested. S.Ct. is fundamentally pur- to misconceive the noted, there were suffi As we have poses of the Fourth Amendment. Inves- upon which ciently specific articulable facts tigatory subject seizures would unlimited suspicion that criminal to base a reasonable numbers persons innocent to the was activity when Chamberlin was afoot ignominy harassment and incident to in- justify to stopped. This would be sufficient voluntary Nothing is more questions. few brief stop a brief and a clear than Fourth Amendment However, probable cause there was not was prevent meant to wholesale intru- justi questioning to then or after the brief sions personal security of our a more extensive detention. Chamberlin fy citizenry, whether these intrusions be patrol of the car for was held in the back ‘investigatory termed ‘arrests’ or deten- at police while the twenty minutes ” tions.’ and con Robert Franklin tempted to locate S.Ct. investigation. There is no doubt tinue his reasonable, good police faith Terry The case on- this was involved a limited of the officer. He was weapons. part the-street and frisk for The work on the attempting custody Court to retain Dunaway appli obviously in traced the narrow Franklin exception cation of the in until he could locate subsequent cases. Chamberlin government pointed Dunaway, Court out in them both. justified by at Brignoni- argues 2256-57 that United that this detention Ponce, of the circumstances 45 the necessities (1975), police of the officer. applied Terry excep good L.Ed.2d 607 faith actions however, balancing ap roving This, very tion patrols stopping border auto is rejected illegal immigrants mobiles to check for that the proach illegal It is the fact Dunaway. police. true that situation actions of the Rather, Dunaway flagrant apt question constituted more in such more detention, “whether, is police, granting unlawful because case establishment cause, probable pick up illegality, without went out to of the primary the evidence to him encountering objection accused rather than which instant has been made suspicious only and not exploitation illegality come of that car, but placed patrol sufficiently him in the took him to or instead by means distin- case con- certainly guishable station. This purged primary Guilt, on Maguire, stitutes a lesser intrusion Chamberlin’s taint.” Evidence of significantly (1959). is a liberty. this

greater stop. brief Terry intrusion than the States, Wong Sun v. United 487-88, 407, 417,

Here, questioned Chamberlin was not (1963). he He briefly where was found. twenty seat of a car for back In order to determine whether the car, the police minutes. While in Officer statements, the observations of Chamberlin ques- Morse observed his demeanor and and the ultimate identification are fruits of He tioned him. was never informed that he detention, a brief review of the fact, leave In free to the car. facts is When necessary. Officer Morse admitted that once detained initially Chamberlin, stopped he asked Chamberlin, go. he was not free questions. Chamberlin two Officer Morse Morse also admitted that he detained doing; asked Chamberlin what he was going Chamberlin “to find out what was just responded that he had re Therefore, on.” we conclude twen- paying turned mother’s furniture ty-minute detention of Chamberlin consti- bill at Furniture Universal Store. Offi interroga- tuted a “detention for custodial cer why Morse also asked Robert had run meaning

tion” within the v. away; responded did jus- New requiring probable cause for not know Both statements Robert. this, accordingly tification.2 We hold that prior placing Chamberlin in detention violated Chamberlin’s fourth and police the car was while still rights.3 fourteenth amendment engaging Terry investigatory stop.4 in a justified The investigatory was question The final is whether the state- circumstances; thus, the of neither these by ments made Chamberlin after was product illegal statements was the of activi car, police ordered the the into observations ty- time, of ultimately Chamberlin at that and the identification of Chamberlin at fur- the placing Five minutes after Chamberlin in store, niture were fruits of the unlawful car, police the Officer Morse received a Wong States, seizure. In v. United the Sun message radio that a check had been found Supreme Court stated: point near the apprehen- of Chamberlin’s

We not check, need hold that all is retrieving evidence sion. After the “fruit the poisonous of tree” be- simply Morse observed Chamberlin’s nervous de- cause it light would not have come to but reinquired meanor. Officer Morse than as Terry-type exception, purposes 2. of analysis The limits the when 4. For of this shall we take used, balancing approach may subject be by judge is the facts as the found district at the cases, in to delineation future see suppression hearing. judge United States The district found 1284, Perez-Esparza, (9th v. 1287 by n.2 that initial the statement Chamberlin about 1980). Dunaway emphasizes We note Cir. that placed the furniture store before he exception that the is a narrow one. patrol stipulated the car. facts presented at trial indicate that the initial state- find Since we the detention violative of just ment Chamberlin been to Constitution, federal not we need reach the furniture store was after had been propriety under state law the See of patrol in the car. 187, Thompson, United v. 597 States F.2d 190 (9th 1979). n.6 Cir. 1268 case, we the evidence.5 In this because regarding pay-

to Chamberlin’s statement bill at the Uni- the detention ing his mother’s furniture have determined unlawful, re- question- Furniture versal Store. disclaiming that he had made sponded police ing he was held of him after Illinois, Brown v. a statement. In such it is clear interrogation,” car was “custodial 2254, 590, sup- made must the statement dealt with the (1975), since no amendment pressed under the fifth given by statements of whether given. Miranda warnings Miranda illegally detained the defendant while 436, 444, Arizona, detention, illegal custody were fruits of (1966); United 16 L.Ed.2d under the exclu- suppressed thus to be (9th Cir. F.2d Kennedy, fur- Dunaway, the Court sionary rule. In 1978). Therefore, need not consider we ap- holding Brown as interpreted ther apply Brown factors so whether the three given by and sketches plied to statements preclude the use Chamberlin’s as custody after Dunaway while defendant disclaiming prior comment statement stated: arrest. The Court an unlawful store, because we do about the furniture designed to vin- a test Brown articulated get threshold fifth amend- beyond not policies and interests the “district dicate question. ment See Following of the Fourth Amendment.” 2259; Perez-Esparza, any per se Wong court eschewed Sun the 1980). F.2d rule, identified the rele- or “but for” “whether Brown’s state- inquiry vant as whether the We next consider by exploitation of ments were obtained of Chamberlin’s nerv officer’s observations arrest.” Brown's fo- illegality of his excluded as fruit of ous demeanor must be “the causal connection between cus on apparent It is illegal seizure. re- the confession” illegality his demeanor was to observe opportunity policies behind the use of flected the two illegal only because of his brought about rule to effectuate exclusionary detention, excluded as an and thus must be is a When there Fourth Amendment. Dunaway, arrest. of his exploitation the ille- close causal connection between 99 S.Ct. at 2259. confession, only gal seizure and the likely more exclusion of the evidence the evidence Finally, we consider fu- misconduct in the deter similar of Chamberlin and the identification of the ture, is more but use of the evidence only store. It was check at the furniture likely integrity compromise observed Chamberlin’s after Officer Morse courts. and Chamberlin nervous demeanor (citations omit- at 2259 S.Ct. disclaimer, that the made ted). the Universal Furniture go to to decided store, at the the em After arrival Store. identified in The three factors being the check as the ployees identified statements or pertain particularly Brown had tried to same check that Chamberlin acquired from evidence which have been The information available to cash earlier. wheth to determine the defendant himself indepen was obtained Morse which attenuation or er there has been a sufficient illegal detention can be summa- of the justify the use dent break in the causal chain temporal These factors are: “[t]he excluded. factors in United States 5. We discussed these confession, 1284, (9th proximity Perez-Esparza, 1289 Cir. of the arrest intervening 1980) stating: presence of and, purpose particularly, . Illinois, supra, in Brown v. an- flagrancy misconduct . . consider, of the official nounced three factors for courts to 603-04, Illinois, supra, 422 U.S. at ques- Brown v. beyond threshold Fifth Amendment 2262, 2254, Dunaway quoted voluntariness, determining 95 S.Ct. whether tion of York, supra, inculpatory putative New 99 S.Ct. at 2259. state- a defendant’s illegal arrest must be ments to an rized follows: Officer Morse observed are fruits of as the unlawful detention and acting suspiciously. Chamberlin Chamber- have suppressed. should been attempted lin had to flee while Officer Reversed and remanded. observing Morse was him a second time. just stated come CHOY, Judge, Circuit concurring and dis- paying

from his mother’s bill Univer- at senting: sal A Furniture Store. check subse- Because of the Supreme strong- Court’s found near the location of quently Cham- ly-couched dicta in New attempted flight. berlin’s The information 200, 2248, U.S. to Officer available Morse which was (1979), agree I my colleagues with illegal obtained as direct result of the detention of Chamberlin after the initial can detention be summarized as follows: investigatory stop illegal. check, After the officer retrieved the respectfully I dissent my very excited, began Chamberlin became colleagues’ conclusion that all evidence appeared very sweat and nervous. Cham- by derived the officer after the placement making any berlin denied statements about of in the back seat of the police having been at the Universal Furniture car was illegal tainted detention and Store. We must determine suppressed therefore must as the fruit Wong Sun test whether this evidence was poisonous tree. by “exploitation illegality obtained of [the] My colleagues find that the officer’s or instead sufficiently means ini- distin- tial suspicious observation Chamberlin’s guishable to be purged primary behavior, Chamberlin’s first statement Sun, Wong taint.” at about the Store, Universal Furniture at 417. The focus is on the causal connec- regarding his statement Franklin were tion between illegality the evi- completely untainted. All this dence; evidence and, the showing burden of admissi- was obtained before illegal bility prosecution. rests on the Dunaway, circuit, 99 S.Ct. at 2259. In this we have point But I wish to out that the officer’s stated the test illegal to be whether the receipt of radio message and his dis- significantly tends to activity direct the in covery that check belonged to a third vestigation to question. the evidence in person, rather than mother, Chamberlin’s Cales, (9th United States v. 493 F.2d 1215 untainted, were also because they had no 1974), Bacall, United States v. 443 F.2d connection with detention. The Cir.), denied, cert. information possession in the officer’s (1971). that moment suspicious him of Cham- There is no doubt that the observation berlin’s reference to the earlier furniture excited Chamberlin’s condition and nervous store. if Even Chamberlin had been re- ness, together with his that he statement before, leased the officer would have pro- previously mentioned the furniture directly ceeded store, the furniture store, impetus added considerable to the where he (without would obtained investigation, and tended significantly to of illegality) hint the evidence that was investigation direct to the furniture used to convict Chamberlin. Thus, store. we hold that the identification Since in the officer fact had Chamberlin evidence must be as excluded fruit of the in detention the properly when discovered unlawful detention. pointed facts him toward the furniture We store, conclude that Officer engaged Morse’s obser- him in further dialogue as vation to Chamberlin’s nervous demean- about the furniture store' and observed his or, Chamberlin’s statement that he did not sweating. nervousness and This evidence having mention been at the detention; Universal Fur- was the fruit of the how- Store, ever, niture identification made it was the source of the evidence employees Universal Furniture Store obtained furniture store. The ille- merely buttressed evidence gaily-obtained legal determination, undeniably on based

evidence, already made. that the officer evi suppress refusals to reviewing

When light most dence, facts we view the E. position. to the Government’s favorable Sherman, v. g., United States denied, 1970), cert. (9th Cir. (1971). I emerge the facts believe a result compel a view different such colleagues reached. my which Brandon, F.2d v. United States See 1972). 1010-11 I would affirm the conviction. America,

UNITED STATES Plaintiff-Appellee, ROBISON, James Albert Defendant-Appellant. America, UNITED STATES Plaintiff-Appellee, PEDOTE, Joseph Fred Defendant-Appellant. America, UNITED STATES Plaintiff-Appellee, Leroy JONES, Defendant-Appellant. 80-1784, 80-1785

Nos. and 80-1786. Appeals, Court of

Ninth Circuit. 26, 1980. Submitted Nov. 14, 1981. May Decided

Case Details

Case Name: United States v. Hozie Chamberlin

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 7, 1980

Citation: 644 F.2d 1262

Docket Number: 79-1076

Court Abbreviation: 9th Cir.