United States v. Jack Manuel Alvarez, Jr.

bring themselves within to they take action Congress of to whole Miller sentative in provided in the manner provisions those States, thereby determine 390cc], As have I 203 U.S.C. subject § when RRA [43 § on this intention body’s that noted, need not decide whether already we act. budgetary an enormous passed it Cf. that beyond the time right extends 237, 104 that S.Ct. Wald, 468 U.S. Regan v. their dispose to of required they would be (1984). See also 3026, 3035, L.Ed.2d — con- existing recordable Co., under the lands Mach. Laundry Bock v. Green 1981, 1994, 104 tracts. L.Ed.2d U.S. -, S.Ct. Second, J., concurring). (Scalia, (1989) entered into these contracts were When express not Miller did Representative even expect to every reason appellants had intent over to that there ly state would their labor future which an irenic which court of a any judgment turn reasonably-priced wa- ample, with combine parties. rights fixed crops. That fu- produce bountiful ter tо Secretary’s vari- to did was not be. Congress ture that hold I would therefore litigation, and delay, this caused acts have judgment ous affect intend to not prices portion for a 224(h), and increased water greatly enacted RRA § when it case not permit I lands. would appellants’ section of that did of the enactment with thus break faith provisions which to government the constitutional violate con- of it to its I would hold appellants. the branches between powers allocate also eschew I would government.12 tracts. statutory of that interpretation Secretary’s respectfully I reasons must For these attempted to he has as language insofar dissent. I am While appellants. these it to apply usually should fact we aware interpreta to administrative give deference interpretations if tions, do do so we Public the law. See in conflict are —Betts, Sys.

Employees Retirement America, of STATES UNITED 2854, 2863, 106L.Ed.2d U.S. -, Plaintiff-Appellant, where, true particularly is That ser raise here, interpretations as constitutionality of about doubts ious Jr., ALVAREZ, Manuel Jack Daylo, 501 statute itself. See Defendant-Appellee. F.Supp. 643. I.A.M., 88-5304. No. enti- appellants It follows Appeals, of United States set forth rate water at the receive to tled Ninth Circuit. regard to the contract, without Moreover, 224(h). RRA provisions of § 4,May 1989. Submitted Argued and provisions subject to they should not 20, 1990. March Decided during 390ee] U.S.C. § of RRA 205 [43 § given to been have period that to pursuant lands excess dispose of their contracts, unless recordable existing con- suggest to that this majority seems case too often the Department, as is far [T]he aof resolution pro- more than is little mismanagement the reclamation clusion of in its sensе. lobbying ambiguity the usual heavyhanded statutory gram, claimed bowed re- large disagree. in California As the authori- landowners I op. n. 15. allowed at 823 See indicate, tens millions worth the dissent portion ceive windfall ties cited appear dollars. before purpose clarity should great surely one of ranks as windfall ... judicial [T]his de- intent to overturn attribute the we history of giveaways in the egregious the most quite from different Congress. That crees end bill program. This will the reclamation wheth- construing to determine simply a statute curtailing subsi- by clearly giveaway facts. applies a certain set it er saving taxpayers tens of millions dies and prepared the administration dollars that away. give information, patrol several Based on Officers dispatched the bank. cars Mustang GT backed into a white observed with a facing the space bank The ocсupant. offi- looking male Hispanic five for min- the car about observed cers government, According to the “[a]s utes. bank, the arrived at officers other bank, the past drove cars one vision,” after which field Alvarez’ of within lot. Mustang GT left the white a short the car for police followed The One of pulled it then over. distance Atty., Umber, San- Asst. U.S. J. Thomas sys- officers, using public address his Cal., Ana, plaintiff-appellant. ta not move and tem, suspect to ordered Cal., Schulman, Ana, M. Santa Marshall Three plain view. keep hands in his to defendant-appellee. with their Alvarez approached officers out of the drawn, him and ordered weapons all of the offi- complied with Alvarez car. placing Alvarez' While instructions. cer’s back, one of the behind arm SNEED, REINHARDT Before jack- Alvarez’ bulge underneath observed BRUNETTI, Judges. Circuit nine millimeter a loaded and removed et BRUNETTI, Judge: Circuit right Alva- suspect’s side. from the pistol pat and a down was handcuffed rez Alvarez, in- was Manuel Jack Appellee, pis- nine millimeter loaded another revealed charging indictment a three-count dicted in The clips. ammunition and two tol to distrib- intent with possession him with car and the trunk searched then 841(a)(1)),posses- (21 ute cocaine U.S.C. § M-6 belt-feed partially assembled (26 found firearm U.S.C. unregistered of an sion rifle, fully M-16 automatic gun, a machine with of a firearm possession 5861(d)),and § weapons, and these for both of (26 ammunition U.S.C. removed serial number cocaine. of quantity a substantial contends that Appellant 5861(h)). § evidence suppressing court erred district suppress motion to hearing on the theAt automobile. Alvarez’ of seized after trunk, anony- in the found evidence Soler, Background as Michael was identified callеr mous At of Alvarez. acquaintance personal 10:28 12, 1988, approximately at May On he was on bail call made the time Soler telephoned male caller am, an unidentified charges on in San Bernardino awaiting trial in- Department with Ana Police the Santa cocaine. transportation of the sale that robbery possible bank of a formation spent he had hearing testified Soler, at the morning. The caller place that to take was day Alva- on the Alvarez with morning claimed himself but identify to refused he was testified Soler arrested. was “in rez happen about robbery going Plaza that Coast at South shopping going America Bank of at 10 minutes way, he of his that, out although day, but driving a The man and Main. Eighth Alva- When the bank. Alvarez explosives followed got and he’s Mustang GT white bank, went direct- Soler into the rez turned the man described him.” caller police. and called phone booth ly to a dark, kinda Mexican “tall, looks as the car working he was testified also Soler bank.” in the back probably and he’s made the when he officer for the going knew what how he When asked ruled that court The district stated, call. “I it’s know the caller happen, that Soler proof met his burden me, he’s Just believe happen. going government acting the behest there.” and that suppress the motion to could not Discussion granted ground.1 on that F.Supp. A. Validity the Investigatory Stop government’s challenge first to the motion, In granting Alvarez’ the district district ruling court’s suppress the evi- court concluded it did not need to dence is that the initial detention of Alva- address the issue of whether the stop was rez’ legal. vehicle was Specifically, an arrest because under either a test of government maintains that the officers’ de- probable cause suspicion or reasonable tention of upon Alvarez was based a rea- government was unlawful.2 ap- sonable articulable ac- illegal peals, and we now reverse. tivity. Standard Review In order justify to investigatory an stop Whether there was sufficient there objective must be “some manifesta- suspicion founded justify investigato to an tion person is, that the stopped or is about ry stop question is a mixed of law and fact be, engaged in criminal activity.” Unit- that requires a de novo review. See Unit Cortez, ed States v. 411, 417, 449 U.S. 101 Thomas, ed States v. 622, (9th 863 F.2d 625 690, 695, (1981); S.Ct. Cir.1988) (Thomas). Whether an arrest Ohio, 1, 392 U.S. has depends occurred on all the surround (1968); Thomas, L.Ed.2d 889 863 F.2d at ing whether, circumstances and under all stop The is evaluated looking at circumstances, “a person reasonable “totality of the circumstances” would conclude he wаs under arrest.” then determining, upon based the whole Patterson, United States v. 648 F.2d picture, whether the detaining officers had (9th Cir.1981) (internal citations omit particularized also, ted); suspect- basis for see United States v. Buffing ton, ing particular person of criminal 815 F.2d activi- Cir.1987) ty. Cortez, (Buffington). U.S. at Whether search was 101 S.Ct. at law presents ful question a mixed 694-95. law and

fact re viewable de novo. United States v. question Linn, The here is whether (9th Cir.1988); 862 F.2d 739-40 also, anonymous see United sufficiently States v. McConney, corrobo (9th Cir.1984), by police rated 1204-05 de observations to nied, 469 U.S. officers with suspicion war L.Ed.2d 46 rant an investigatory stop. We assume sations, 1. The district court was troubled nothing evidence where else the observe working that Soler with law gives any enforcement being, reason to believe a crime is has appearance officers to create the of reasonable been or is about to be committed. suspicion justify the initial and subse- circumstances, probable can be there neither quent seizure. The court noted that evidence suspicion cause nor reasonable which would Perales, suggested ex-police that Modesto an of- justify gunpoint stop and search. ficer, may have been the source of cocaine for importance of this issue should not be Further, both Soler and Alvarez. the court not- broadly minimized. more the law con- ed that its own docket contained a three-count duty strues the investigate officers to against possession indictment Perales with suspicious right circumstances and their to do an intent to distribute and distribution of co- weapons, so with drawn that, fact, likely the more it be- caine. The court if coop- stated States, persons comes that innocеnt eration will die or with the be seri- Soler in- ously injured. go Anytime people duced Alvarez to wait at two the bank confront drawn, weapons, weapons cocaine and each great and then made the other with there "anon- is a call, ymous” telephone suppress a motion to risk that one or both will shoot. Because granted; would have been if it were not tragedy neces- high likelihood of is so when armed sary suppress grounds, evidence other necessary, confrontations become it is of the the district court concluded that it would be importance clearly utmost social and narrow- inclined at least to more invite evidence on the ly define the high- occasions which call for such question. ly volatile confrontations.” grant- District Court's Memorandum and Order gunpoint stop 2. "A justified cannot be on the suppress dеfendant’s motion to at 8-9. anonymous basis of and unidentified bald accu- lacking facial indicia of working reliability, with law while tipster was not appear- every significant to create the was corroborated detail enforcement surveillance, suspicion by pre-stop justi- which the the officers’ of reasonable ance justi- subsequent might investigative an stop and fied detention of the sus- pect. fied.3 Gates, 213, 103 462 U.S. Reviewing surrounding

In Illinois v. the facts and cir (1983), the Su- perspec S.Ct. cumstances of this case from the Court, weight an deciding preme officer, experienced tive of an law we con tip, applied a “to- anonymous informant’s clude that the initial warrantless analysis, re- tality-of-the-eircumstances” proper because officers had reason assessment of the rela- quiring a balance able that Alvarez was involved in reliability.” ‍​‌​‌‌​‌​​‌​‌‌​‌‌‌‌‌‌‌​​​​‌​‌​​​​​​​​​‌‌‌​​​​‌‌‌‌‍“indicia of weight of all the tive Thomas, criminal conduct. See 863 F.2d at Gates, at 2330- 626-27; Sutton, United States v. of an 31. In the details (9th Cir.1986) (Sutton). Here, by po- corroborated informant’s letter were officers, through anonymous tip, Court rea- lice observation. dark, “tall, were informed that a [male inherently suspect nature of soned that the looks kinda Mexican” a “White who] diminished inde- an Mustang parked in GT” back of the by police of the let- pendent corroboration going bank rob the bank. The predictions future activities of the ter’s police were also informed that the man had Gates, suspect. 462 U.S. at 103 explosives. police The officers observed S.Ct. at 2335-36. sitting Alvarez in a vehicle which fit the anony an description given by anonymous tipster. Circuit has held that D.C. tip can sufficient reasonable parked park mous The vehicle was in the bank’s tip “wаs corroborated unusually positioned when the ing lot and was —front police every significant detail facing police offi end outward. first [the pre-stop surveillance.” United cer to arrive on the scene the car observed officer’s] McClinnhan, 660 F.2d 502 v. States occupant approximately and its five ) (McClinnhan); (D.C.Cir.1981) see also minutes; police two other marked units (D.C. White, v. 648 F.2d 29 United States appeared appellant the scene. The did denied, Cir.), 454 U.S. cert. one of depart from the bank until these 70 L.Ed.2d police two marked cars drove within appellee’s sight. line of McClinnhan, given a description suspect of the and told detailed officials corrob- “When law enforcement shotgun a in a brief that he had sawed-off an infor- orate the details of fitting police spotted a man case. give to a reason- tip, mant’s can risе description standing with a brief case. The suspicion.” United States able articulable police approached the man and initiated an (5th F.2d Cir. Rodriguez, v. investigatory weapons detention and frisk. Circuit). Here, 1988) {Rodriguez—Fifth a They also conducted warrantless of the details of the officers verified each next to the of the brief case which was tip. facts were consistent with These man. robber who the actions of a would-be bank until the coast was decided to take break possible for The court noted “that it is anonymous tip, corroboration of clear. The grudge anyone with a fabricate tip, pre-stop and the ob- the details of the details, clothing such as whose neutral gave officers rise servations location, [necessary] cor- provide the make suspicion to McClinnhan, to reasonable artiсulable stop.” ... roboration The “Fourth investigatory stop. Nonetheless, an the court 660 F.2d at 503. not, particularly where does suspicions about the Amendment held that the officers’ explosives], re- that, reported contraband suspect, on an based [is govern- being tipster with the appellee’s associated argument, At oral counsel stated 3. ment. that he did not want us to address the issue if it occurs under cir stop into an arrest ignore his well- quire officer personal justifying fears of cumstances accordingly permit will founded doubts at 1300 safety.” Buffington, 815 F.2d 660 F.2d at investigative detention.” an police officers forced (Terry where 503. pave lie down on suspects to exit car and the activities ob- argues gunpoint); at accord United States v. ment are innocent served Cir.1988) (briefly Parr, F.2d activity. criminal probative suspect car does not con рlacing But might be correct. “Taken alone he requiring stop into an arrest vert a tip and other light when viewed cause). v. probable See United States above, activ- noted this same circumstances (9th Cir.), Greene, 783 F.2d 1367-68 appears highly suspicious. It is not ity denied, 1185, 106 S.Ct. 476 U.S. seemingly innocent conduct uncommon for {Greene) (1986) (investiga suspi- provide the basis for [reasonable instructed sus tory where officers Rodriguez, States cion].” the car and then pects put their hands on (9th Cir.1989) (Rodriguez— weapons); United States drew Circuit) (citing Ninth (9th Cir.1983) Taylor, 13); n. also 244 n. 103 S.Ct. at 2335 see (investigatory stop where officers {Taylor) Sutton, 1427. The fact that 794 F.2d at suspects weapons with their approached actually “did not observe the officers having after been warned that drawn irrelevant,” activity is as is criminal dangerous). suspects were at the that Alvarez could have been fact totаlity of the circum- In this Sutton, 794 purposes. for innocent bank conducted stances indicate that hold that under the F.2d at We investigatory stop rather than an arrest the officers had circumstances of this ease police, probable cause. without particularized a basis observations, through independent their making investigatory stop the of Alvarez’ anonymous tip. the details of the verified vehicle. tip, the corroborating After the details of location, description including suspect’s Validity B. the Manner the Investi- of vehicle, police officers had addition- Stop gatory portion reason to credit the al vehicle, stopping After one of carrying suspect indicated the ex- that immediately ordered Al police officers suspect plosives. “Although approaching a keep to move and to his hands vаrez not extraordinary weapons are with dfawn approached The officers then view. measures, procedures jus- [are] weapons and or vehicle with their drawn neutral- tified as a reasonable means of ... step to out of the vehicle. dered Alvarez by- izing danger to and innocent argues investigatory that Appellant Taylor, 857 standers.” v. United States stop escalated to a full arrest when he was Cir.1988); 210, (5th 214 United States F.2d gunpoint necessi forced to exit his car at 965, (7th Serna-Barreto, 842 F.2d 968 v. tating showing probable a cause. Cir.1988) an stop does not turn into {Terry permitted has limited points gun officer his arrest as soon as an suspect’s liberty during a intrusions on a 716 F.2d at 708. suspect); Taylor, at the safety; protect the officer’s Terry had warned Taylor, In the officers been may mea- ap- officer take reasonable suspects dangerous аnd that the were physical weap- neutralize the risk of suspects’ sures to vehicle with proached the person whether the ‍​‌​‌‌​‌​​‌​‌‌​‌‌‌‌‌‌‌​​​​‌​‌​​​​​​​​​‌‌‌​​​​‌‌‌‌‍offi- harm and to determine held that ons drawn. We “[w]hen question suspects] question is armed. States v. stopped cers [the 221, 235, 675, justified 469 U.S. 105 S.Ct. the officers were Hensley, them ... (1985); protection,” 683-84, Terry, drawing weapons 392 in self 83 L.Ed.2d 604 did not weapons In drawn 88 at 1881-82. and the officers’ U.S. at S.Ct. Tay- Terry stop into an arrest. held that use of convert the circuit it has been “[t]he lor, 716 F.2d at 708-09. [investigatory] force does not convert

839 contentions, supported by prob the search must still be Unit- Contrary appellee’s (9th Strickler, Carney, 490 F.2d 378 cause. v. 471 able ed States California re- Cir.1974), require 2066, 2070-71, different does U.S. case, that an armed we held (1985); In that sult. 85 L.Ed.2d 406 United States v. vehicle approach to surrounded (9th Miller, Cir.1987). Strickler, clear that ... In “it is arrest. probable Officers who have cause to be for their legitimate no fear had that lieve an automobile contains evidence only tenuous reasons to believe safety and vehicle, may crime includ occupants the car were involved trunk and all containers which Taylor, 716 F.2d drug in the transaction.” probable cause there is to believe evi present In the at 708-09. concealed. dence was United States v. strong reason believe Ross, U.S. 102 S.Ct. explosives and was armed with L.Ed.2d cause exists Probable safety. for their reasons to fear legitimate if, circumstances, totality under the of the did that the manner We hold probability “there is a fair that contraband stop into an investigatory not convert or evidence of a crime will be found in a arrest. particular place.” Rodriguez-Ninth cu Cir it, F.2d at Validity the Frisk C. probable decision to frisk Alvarez this case cause existed similarly justified. pat “Police weapons was to search the vehicle. The frisk re steps pistols entitled to take to assure nine millimeter are vealed two loaded Greene, 783 stopped is not armed.” person appellee’s inside the waistband. The mo purpose “The F.2d at 1368. ment the discovered the two con pursue is ‘to the officer weapons, they frisk allow cealed had reason to believe ” investigation fear of violence.’ without in the criminal that Alvarez was involved Bautista, United States tipster activity described Cir.1982), denied, reason to provided with additional (1983) L.Ed.2d suspect possessed explosives. that Alvarez Williams, 407 (quoting Adams v. The verified details of the 1921, 1923, experience “coupled with [the officers’] (1972)). de In this corroborated gave probable cause to believe the rise to noted tails of the car and trunk contained contraband.” allowed them to form reason officers Circuit, 835 F.2d at Rodriguez — Fifth was armed with suspicion that Alvarez able explosives. Additionally, when the officers car, In the officers’ search they his placed Alvarez’ arm behind back long beige large bags and a box jack two black large bulge a underneath observed These con significant found inside the trunk. bulge et. The visible explosives; ad easily conceal clueing in the officers to Alvarez’ tainers could factor of gun. ditionally, It thus reason the officers observed barrel possession of a bags. precaution protruding for the officers to take rifle from one able step pat justify frisk to insure that Alva the officers’ ary These circumstances We conclude that the in the trunk. bags rez was not armed. and box search of the frisking Alvarez. properly acted Conclusion Validity D. the Vehicle Search district Accordingly, we reverse question The next is whether evidence suppress court’s decision of Alvarez’ warrantless officers’ The case is remanded in the trunk. found proper. including the trunk was automobile with this consistent proceedings further mobility, a search Due to an automobile’s opinion. prior not need to be obtained warrant does However, AND REMANDED. REVERSED the automobile. to a search of REINHARDT, Judge, gree Circuit of corroboration will establish the reli- dissenting: ability anonymous tip? of an particularly I dissent. This is a intri- struggle Our with these issues has been guing case because complicated by many the fact that in re- patently was false—and manufactured out spects fact-specific and, the answers are of whole cloth in at least one crucial re- thus, development resistant to the appli- spect in the seizure of evidence —resultеd Still, general principles. prior cation of our that led to the defendant’s conviction for an decisions and those of the entirely unrelated offense. Because the frequently have noted the intrinsic unrelia- false, could obtain cor- bility anonymous tips. It follows that details, any roboration of of its other than law enforcement officials must corroborate wholly sug- neutral facts that failed to tips significant detail before their gest activity, the existence of criminal reliability properly can be established. Be- Yet, planned or otherwise.1 cause I do not believe that the Santa Ana suspicion holds that the had founded corroborated the at justify sufficient a number of detail, in any significant issue here I con- drawing weapons, stopping officers’ their they clude that lacked reasonable gunpoint, immobilizing an individual at him, frisking questioning and then him. Alvarez. By finding wholly innocuous facts Ohio,3 principles Under the of Terry v. police provided observed sufficient “ investigatory stop justified must be ‘[a]n anonymous tip, corroboration for an objective some manifestation that the ensued, justified the use of force that is, be, person stopped or is about to en- majority lowers even further the constitu- ” gaged in criminal activity.’ separate tional society barriers that a free Thomas, States v. from a state. Cir.1988)(quoting Cortez, United States v. The district court framed the central 411, 417, 690, 694-95, question in this case as “whether the (1981)). The lawfulness of the lawfully stop person can a vehicle or stop depends upon totality whether the drawn, guns acting solely on the basis circumstances, as existed “at the anonymous phone properly of an call iden- time stop,” the officer Thom- initiate[d] tifying рerson found, where the could be as, particu- 863 F.2d at constitutes “a any supporting without evidence that a suspecting larized and basis for been, being, crime is has or is about to be particular person stopped of criminal actuality, committed.” In one activity.” Cortez, question several, but with which this court totality-of-the- S.Ct. at 694-95. Under this struggled years. Among has them are test, cireumstances the today:

two that we must address Under upon police the which relied was insuffi- may police rely what circumstances on an cient to suspi- to form reasonable investigatory stop?2 cion for an What de- Alvarez. was, aspect learning tip signifi-

1.Another unusual case is that the that the at least in most known, "anonymous” eventually respects, compelling caller became cant Soler’s invention —a suppression hearing. argument importance ascertaining and in fact testified at the for the the knowledge rely- The district court characterized the basis of an informant’s before informant’s testimony ing intrinsically testimony on such an as follows: "Soler’s that he unreliable source. page police See responsi- called the out of a sense of civic infra. bility Nothing was not credible. in his testimo- ny any granted Supreme recently revealed reason for him to believe that 2. The certiorari Moreover, in order to address this issue in Alabama v. was about to rob the bank.” — -, -, White, testimony absolutely U.S. 110 S.Ct. Soler's makes it clear that (1990) (No. 89-789). 107 L.Ed.2d suggesting he had no information whatsoever any explosives. that Alvarez had Soler's refusal allegations to reveal the basis for his 3. 392 U.S. police dispatcher prevented police from suspicious arrangements travel this court firmed the Supreme Court and Both predicted by anonymous telephone informant. anonymous indicated that have The confirmation of those details estab- source of infor least reliable tips are the Gates, reliability personal Illinois v. mation. See lished knowl- 462 U.S. edge provided proba- of the informant and 2331- 213, 233-34, 103 S.Ct. Adams v. cause for the ble the defen- (1983); L.Ed.2d 527 Williams, property dants’ for narcotics. 143, 146-47, Unit (1972); 1921, 1923-24, 32 L.Ed.2d many While there are distinctions be- Sierra-Hernandez, ed States tween Gates case,4 present key and the J.), Cir.) (per Kennedy, purposes distinction for our is that here the denied, verify any significant could not detail (1978). However, anonymous tip, certainly not the anonymous tip may held that an Court has allegation planned that Alvarez to rob a probable cause as the basis serve carrying he explosives. bank or that was where, totality the circum light in surveillance, While under Alvarez en- in including extent of detail in gaged suggest no behavior that would stances — corroborating in police success robbery planned that he a bank and made reli police can establish its that detail —the he no moves that would ‍​‌​‌‌​‌​​‌​‌‌​‌‌‌‌‌‌‌​​​​‌​‌​​​​​​​​​‌‌‌​​​​‌‌‌‌‍indicate was arm- anonymous veracity of the ability and the parked He in a ed. was observed bank informant accu In informant. minutes, parking waiting lot for five as if the defen rately predicted the conduct of possibly tip- someone — dants, describing in detail their unusual only ster. That is the conduct operandi and the modus plans travel observed.5 He made no move to enter the engaged activity they bank, would be parked the criminal and while the lot he did surveillance, Through con robbery in. nothing to indicate that a bank to a firmed that the defendants travelled was about to commence or that he was drug particu proceeding trade awaiting location where the further events before min- larly They confirmed that the de criminal conduct. After several active. utes, frequently engag- route he out of the lot without followed a travel drove fendants whatsoever,6 ing any suspicious activity drug And con- employed by couriers. short, support probable the record does not the Govern- cause case and not rea- 4. Gates is a degree suspicion case. The of corrobo- ment’s claim. sonable suspi- required of details for reasonable ration parked with The mere fact that Alvarez was undoubtedly required less than that cion is facing end of his car out of the the front text will But as the discussion in the Gates. space usual, itself un- and toward the bank is not clear, case involved almost make in this getaway. suggestive planned let alone only in the and could be corroborated no details slightest degree. fact, survey judges’ park- an informal the details that could be And Angeles in Los lot in the federal courthouse suspect suggest did not corroborated Friday more typical afternoon revealed activity. engaged criminal which, theo- car on the Government’s than one suggested ry, parked in a manner claims that Alvarez was 5. The Government planning getaway a fast after the driver was manner, parked planning a an unusual as if perpetrating form of mischief. some However, only getaway. record shows suggests vaguely parking place, some causal 6.The Government car was “backed into a Alvarez’s facing relationship car’s arrival and between a the bank.” The record does not show the departure, seems un- and the the car and the entrance to the Alvarez’s distance between bank; critically ever, accept this version of events. How- between the it does not show the distance lot; that Alvarez’s parking record fails to establish the it does the car and the exit from appearance precipitated pas- the the driver’s side or the exit not show whether car, bank; by. police saw it drive or even that Alvarez senger’s the car was closer to the side of point, the clear on this position While the record is not whether the of Alva- it does not show merely argument that might easily below was parking space Government’s car in the as rez’s maybe "quite possible, pulling a connection was Alvarez forward into it, have resulted from sup- probable." possibility was never people This space space behind even his from the as sugges- do; by anything ported tion, more than counsel’s or it does not show whether some often tentatively only Judge after Letts had parking made other cars in the lot were even all of the Indeed, the against Government. ruled the parked manner similar to In in a Alvarez's. stopped shortly majority’s tip’s him there- discussion of the cor- police and when after, tip the they had received no information or roboration —without which is admit- robbery tedly had been unreliable—is deficient in three re- reports indicating that a First, short, majority everything spects. In about Al- the asserts that attempted. each suggested that he had not “the officers verified of the details of varez’s conduct fact, bank, only engaged tip.” not in a bank the the officers verified a robbed robbery, meeting anonymous a the fact that a man the and did not intend rob bank. in, allegation carrying description parked caller’s was indeed Alvarez was lot; ultimately places, parking the explosives proved significant also to be un- all actually true.7 details of the were called into question by police observation. Thus, police could not corroborate Second, any significant majority detail about Alvarez’s con- asserts that him; anonymous stopping duct before facts observed “were consist- telephone reliability extended ent with the actions of a would-be informant’s bank only ability description to his to offer a robber who decided to take a break until public in if the sitting an individual in his car the coast was clear.” Yet even facts place. majority This far short of the corrobo- were as the claims—and are falls Terry higher ration deemed sufficient which demands standard. not8— Reasonable Supreme “range suspicion Court described as a does not exist when- just easily relating merely of details ob- ever a citizen’s actions are consist- existing tained facts and conditions at the ent with the actions of a would-be criminal. tip, majority correctly points po- time of the but to future actions of The out that parties ordinarily easily predict- directly third lice need not observe criminal ac- tivity, ignores important corollary at at 2336. it ed.” 462 U.S. but Surely, emphasized by even under the lesser stan- dards, suspicion making must be found- “In a determination of Gates: upon description probable inquiry ed more than an accurate cause the relevant is not present ap- particular of an individual’s location and whether conduct is or ‘innocent’ pearance, especially allegations ‘guilty,’ degree suspicion where but the particular types of his criminal conduct are сalled attaches to of noncriminal future question by into surveillance. In this acts.” 462 U.S. at 243-44 n. anonymity added). (emphasis Clearly, of the informant and the at 2335 n. 13 inability any suspicious simply to corroborate behavior does not become significant tip preclude any details of his it. because are told about How- ever, finding any particular- deciding that the conduct observed suspecting police adequately ized or basis for Alva- the Santa Ana corrob- Cortez, activity. rez of criminal orated the tip, single 101 S.Ct. at 694-95. Because fails to detail indicate or combina- suspicious had no reasonable tion of details that would be engaged planning tip. Alvarez was in or This circular manner the absence aof engage activity, analyzing essentially criminal makes it subsequent self-corroborating, though searches of and his car Alvarez even the infоr- illegal Terry. supplied by under mation the caller here could ed, thus, provides placing

written declarations of the officers on the scene no basis for suggest may long anonymous allegation all that Alvarez have waited as faith in the that Alvarez appearance the ve- as five minutes after hicle before planning to rob the bank. leaving lot. The dis- "[¡Instead getting trict court found that out of Although explosives the absence of was con- approaching car and the bank otherwise occurred, only firmed knew after acting in a manner consistent with an intent to they stopped Alvarez that he had not before bank, simply park- rob the the bank left engaged robbery. in a bank added). (emphasis lot" Under these circum- stances, any fleeing inference that Alvarez was supra. 8. See notes and 6 5 entirely from surveillance is unwarrаnt- case, In sight investigating, here. cus- by anyone within supplied have been time, anyone agent verify who had able to toms Alvarez at lot.9 anonymous accurately meet him at the had Alvarez to informant stat- told ed the license number of a truck that would Third, up by majority sums all of this lightly loaded with watermelons at a tip, anonymous “The corroboration stating, company, particular fruit with room left in pre-stop tip, and the details of of the agent the truck for contraband. The fol- gave rise observations company the truck from the fruit lowed suspicion to make articulable to reasonable stand, he a small fruit where observed box- anony- stop.” Yet the investigatory an marijuana transport es sometimes used to no indicia of tip, which contained mous being loaded onto the truck. Because this to no reliability, was entitled inherent degree surpasses any- far corroboration significant weight unless corroborated here, thing by the offered Government detail, police surveillance tended majority’s citation of the Fifth Circuit’s details than it significant more contradict Rodriguez opinion provide sup- does not corroborated. for its port decision. has ever prior decision of this court No so little anonymous an credited majority suggests that the law majority cites United corroboration. jus the District of Columbia Circuit would F.2d Rodriguez, 869 v. States tify finding based Cir.1989), proposition that “seem- for the solely confirmation the anon can reason- ingly innocent conduct” tip correctly ymous described Alvarez and However, “seemingly suspicion. able accurately car and identified their loca by police in innocent conduct” observed McClinnhan, v. tion. United States suspicious Rodriguez involved a number (1981); White, F.2d 500 v. States currency, details, including large stacks denied, F.2d airport, and “evasive frequent trips to the 70 L.Ed.2d We Moreover, driving.” 869 F.2d at 483. entitled to consider the D.C. are of course tips in actually two there were persuasive authority, decisions as Circuit’s already been one of which Rodriguez, them to follow them if we deem cor a consensual search of corroborated when rect; majority provides here the no but $140,000 up turned to which apartment an adoption of that cir justification for the alerted; and these dog a narcotics later any principle. cuit’s law over other Cf. a third tips supplemented two White, (question 648 F.2d at 43 whether informant, as well as infor- from a known only by obser corroborated other narcotics offi- mation obtained from justifies Terry details vations of innocent majority’s cita- Id. at 482-83. ‍​‌​‌‌​‌​​‌​‌‌​‌‌‌‌‌‌‌​​​​‌​‌​​​​​​​​​‌‌‌​​​​‌‌‌‌‍cers. disputed one in circuit and stop is a live and Thomas, v. tion of United States Louisiana, courts); Jernigan v. state (9th Cir.1988), and United States (9th Cir.1986), Sutton, is 794 F.2d 1415 J., (1980) (White, joined by Brennan to understand: Neither more difficult even Marshall, JJ., a denial of dissenting from anony- involved an nor Thomas Sutton calling for resolution certiorari and tip. mous of innocent details whether corroboration stop); Alabama v. for a Fifth Circuit’s decision sufficient Nor does the — U.S. -, -, White, case, also entitled United States another (1990) (granting (5th Cir.1988), 107 L.Ed.2d 835 F.2d 1090 Rodriguez, years ten the issue raised reaches certiorari on the result support general public at the time what the result would not observable need not decide 9. We telephone actually sought call. of the informant’s if Alvarez had have been bank, only the current express opinion described on that and I no enter hypothetical question. However, public place. The in a such case state of affairs conduct, future departure from the prediction Alvarez’s at least involve of future lot, support i.e., than part to undermine rather conduct on tended some Alvarez’s conduct— that reliability tip. predicted informant and Second, to see how the it is difficult and Jernigan). earlier in Once White care, level of corroboration almost nonexistent are examined with McClinnhan and apparently sufficient under White them becomes majority's endorsement of possibly can be consistent McClinnhan extremely troublesome. investigative requirement that an with the First, appear to be in those decisions by objective man- justified “some has way this court some conflict with is, person stopped that the or is ifestation tips general in handled the corroboration be, engaged activity.” in criminal аbout particular. in We anonymous tips and Cortez, at 694- 449 U.S. at emphasized did have —as 95; Thomas, By appeal- F.2d at 625. examining in- when Gates—“that principles to the announced White informant, the provided by an formation McClinnhan, majority today ap- and test, Spinelli two-prong Aguilar-Spinelli only proves a seizure based on an States, U.S. v. United [393 tall, dark, that Alvarez was manifestation (1969)]; Aguilar Mexican, lot. parked and a bank Texas, [378 prior clearly I that our decisions believe (1964)], ‘highly relevant’ in is more, justification and I see no for require determining of the information.” the value scrutiny adopting the lower level of Miller, 753 F.2d States v. prevails in the D.C. Circuit. apparently (9th Cir.1985) Gates; parallel (citing and omitted); Finally, I believe McClinnhan White also citations see United States even if questionable would be decisions 1396-97 Angulo-Lopez, principles in (9th Cir.1986). they “a did not contravеne settled While holds that Gates con- ‘veracity’ or this circuit. As the McClinnhan'court in either the ‘basis weakness ceded, fatal,” possible anyone is with a knowledge’ prong Angulo- is not “[I]t tipa neutral tips grudge held reli- to fabricate whose Lopez, 791 F.2d at location, details, clothing such as or and able in White McClinnhan —and required by the today from the corroboration majority’s decision —suffer stop.” decision for a 660 F.2d at mere “weakness.” All three more than White significant permits This itself in the form of tele- 502. tips were may liberty of those who police which disclosed intrusion on phone calls to the subject Appar- either the in- be the of such fabrications. absolutely nothing to show willing pay ently, of the infor- the D.C. Circuit is this veracity or the basis formant’s paid by it those knowledge.10 prior price, decisions or rather to have Our mant’s relevant,” likely stop. arе most yet the D.C. whom the “highly this deem However, willing opinions and to credit anon- White apparently is Circuit anony- if these in- fail to note that tips fully, without McClinnhan ymous “[e]ven White, tipster allegation reliability,” 648 F.2d at mous also fabricates dices of “suspect” dangerous, is armed or 44.11 higher degree anonymous tips operandi, have a their modus 10. Some verified offi- supplied by reliability through except the details because in all details cers surveillance specific, or are of a nature so informant are possession exchange of narcotics the actual conduct) (e.g., prediction of future provides legitimate Terry a sufficient basis for knowledge of the infor- personal establish question occupants identi- as to their S.Ct. at U.S. at 2330. mant. ty visually check inside the car.” 648 tips corroboration of details kinds The upon Likewise, added). (еmphasis the McClinn- apparently Circuit would which the D.C. considering han noted it was "an court suspicion to be founded are of allow that, lacking facial indicia while order. a far lesser reliability, every signifi- was corroborated in pre-stop cant detail sur- [the officers’] goes Arguably, even the D.C. Circuit added). (emphasis veillance." 660 F.2d at 502 phrase quoted in the is text in some far. panel's To the extent that White and McClinnhan re- White narrower state- with the conflict ment, concluding quire every "that an about corroboration “in all details” or “in transaction, detail,” time and ongoing significant majority's expan- detailed as to more an place, specific description including of one of today truly unprecedented. sive decision participants as well as and their vehicles converge entitled to are police officers then drawn, guns issu- “suspect” with

upon the cause law-abid- that would

ing orders distress. Misun-

ing citizen considerable

derstandings expected to be are

situations, citizens the lives of innocent all without thereby placed jeopardy,

are identify anything

requiring genuinely suspicious about

“suspect’s” conduct. find summary, I do not ‍​‌​‌‌​‌​​‌​‌‌​‌‌‌‌‌‌‌​​​​‌​‌​​​​​​​​​‌‌‌​​​​‌‌‌‌‍White nothing and I find persuasive,

McClinnhan allay them to majority’s

in the discussion of extent to which

my concerns about the I prior decisions. Nor do

conflict with our jus- has otherwise

believe court’s its reversal of the district

tified I therefore af-

suppression order. ground

firm that order on suspi- Ana lacked a reasonable

Santa they stopped when Alvarez.

cion COURTNEY,

Wallace J.

Plaintiff-Appellant, & APPLIANCE

CANYON TELEVISION Manthei,

RENTAL, INC., David Mark Pinkerton, De-

Bartholomew and Matt

fendants-Appellees.

No. 88-2961. Appeals,

United States Court

Ninth Circuit.

Argued and Nov. 1989. Submitted

Decided March

Case Details

Case Name: United States v. Jack Manuel Alvarez, Jr.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 20, 1990

Citation: 899 F.2d 833

Docket Number: 88-5304

Court Abbreviation: 9th Cir.