*2 and Juan present Treto were also ANDERSON, Before WALLACE and detention area. Dickerson conversed with Circuit Judges, WILLIAMS,* District Treto and him told that he had come to Judge. Arizona because Beck wanted to check out J. ANDERSON, BLAINE Judge: Circuit University of Arizona. Dickerson fur- In a trial ther jury, without a related to Treto that he and his com- appellants Beck panions convicted, and Dickerson previous day arrived the respectively, Tucson, possession of cocaine possession depot, and of had taken a taxi to the bus heroin, distribute, with intent Nogales. and from their violatiоn had come bus to 841(a)(1). of 21 appeal, U.S.C. § On Beck had told Swanson that he had flown challenge as University erroneous the denial of their to Tucson to look at suppress motions to planned evidence seized. We the Nogales to remain in area sev- reverse. days. eral
*
Williams,
Judge
The Honorable
District
for the
David W.
Central District
California, sitting by designation.
the motel
then returned to
about
He
computer
of the
ran a
check
Swanson
again shortly after
He left
men,
negative:
infor- minutes later.
three
it was
but
he
border where
and took a taxi
recorded оn
mation was
by foot.
again
Mexico
strip
men.
then conducted
search
crossed into
He
man,
each
no contraband or
again
were first seen
Beck and McDowell
were found.
in a taxi
about
returning
the motel
*3
m.,
carrying
leave.
were
p.
The three men were allowed to
Both
Friday.
4:00
however,
Swanson,
suspicious; he
remained
Dickerson was
large
paintings.
Mexican oil
Agents
shortly
and
them,
had a
and asked
Treto
there-
hunch
not with
was seen
but
a
on the
maintain
surveillance
He went to
Salomon to
room.
leaving
after
the motel
the three
left the
three mеn. When
men
return
the bank
his
again and
station,
to
inspection
Treto followed them
the motel and
hedges
some
across
beside
Nogales,
Motel in
where
Siesta
At
looking
something.
appeared to be
were
their own names.
registered under
m.,
McDowell came
p.
6:00
Beck and
about
approached
also
out of the motel and
Wednesday,
day,
The
March
next
ap-
by while
other
hedges; one stood
Smith,
requested
Treto
that Alfred
a radio
something.
looking
to
After
peared
Paso, Texas,
El
contact the
coordinator in
patrol
customs
depаrted,
the two
a
men
Missouri,
Clinton,
police
in
department
area and found noth-
officer searched the
reported
about the three men. Smith later
ing.
sergeant
recog-
to Treto that the desk
had
locally
nized Beck’s name as
involved
motel, Beck had
departing
Before
drugs
in
identified Dickerson as
and had
making
telephone
a
call in
been observed
sidekick,
Beck’s
but that neither
the men
lobby
noting airline information on
and
unspeci-
At
been arrested.
some
ever
later determined
pad
paper.
Treto
time,
spoke
fied
directly
Treto
with the
flight
on
that the
men were booked
three
sergeant
Because
in Clinton.
he omitted
City
p.
at
m.
from
Kansas
3:30
Tucson to
report,
in his
un-
conversation
he was
and other officers
He decided then that he
told,
thought
he was
able to recall what
way
on
stop of the men
would make a
officer mentioned
Beck was sus-
airport.
pected
involving
of an offense
the use of
p.
at
Saturday,
On
March
1:38
weapons.
m.,
motel in a taxi.
left the
three men
learned that the
Treto also
three men
in four cars
officers
patrol
Nine customs
moved from the Siesta Motel to the El
agеnts
followed
followed the taxi.
Motel,
Dorado
a nicer motel. The surveil-
minutes, and, according to ar-
for 20
cab
continued;
lance
a room next
to the one
radio,
one CPO vehicle
rangements made
assigned
was used
customs
to McDowell
taxi,
pulled
one went to the
front
agents.
to “box in” the
left and the other behind
afternoon,
Thursday
On
March
Emergency lights
pull
and
it over.
taxi
a taxi to
and
three men took
the border
approached the
agents
were also used. Six
patrol
Mexico. The
walked into
customs
agents
remaining
three
stood
taxi.
following them
officers
remained
All
strip
the median
across from
taxi.
gate
midnight.
until it closed at
Word was
displayed
were
guns
were armed but no
then
inspectors
left with the customs
front seat of the
any time.
was in the
Beck
look
men.
out for the three
Surveillance at
were
taxi
McDowell
midnight
motel also continued until
the taxi on
approached
the back. Treto
then
men
ceased. The three
were not ob-
side,
badge
his
Dickerson’s
showed
again
following day,
served
until the
Fri-
door,
while the other
opened
taxi
day,
March
other doors. The
proceeded
open the
gеt
out
requested
passengers
motel
leaving
Dickerson was seen
No contraband
Friday.
of the taxi.
about 10:00 a. m.
He went to a
any suspicious
safety
sight,
were in
nor were
deposit
bank
obtained a
box.
circumstances observed
the officers dur-
ARREST
ing this interval
of time. Two
took
Appellants preliminarily contend that the
each man
the arms to different
locations
patrol
conduct of the nine customs
around the car.
agent
Treto and another
effectuating
of the taxi in which
taxi,
escorted Dickerson to the rear of the
passengers
and in further detain-
between the taxi
and CPO vehicle. Treto
ing them was such as to constitute an ar-
asked
questions
Dickerson routine
such as
prob-
rest. Because the arrest was without
was,
been,
who he
where he had
and how
cause,
maintain,
able
appellants further
long he had been Nogales,
though
even
illegal
arrest was
and the evidence seized
he
already
admitted he
knew the answers.
suppressed accordingly.
must be
Treto,
According to
Dickerson was nervous
prob-
The line between an arrest without
and his hand shook when he handed his
investigatory stop
able cause and an
driver’s license to Treto. Treto then asked
on founded
is blurred and often
Dickerson if he minded if Treto searched
*4
detect,
difficult to
but the task here is less
him
belongings,
and his
to which Dickerson
troublesome than in most cases. See Unit-
replied either that he didn’t
go
mind or to
3,
Ramos-Zaragosa,
ed
v.
States
footnote
ahead. After
emptied
pock-
his
infra.
ets, Treto
patting
frisked him. While
him
Whether an arrest has occurred “de
down, Treto felt
bulge
in Dickerson’s pends on an evaluation of all the surround
put
boots. He
his hand inside the boot and
circumstances,”
United States v. Rich
under the sock
something
and felt
made of
ards,
1025,
(9th
1974),
500 F.2d
1028
Cir.
rubber. Treto then arrested Dickerson and
cert, denied,
924,
1118,
420 U.S.
95 S.Ct.
43
advised him
rights.
of his
The boots were
(1975),
subjective
L.Ed.2d 393
and not the
subsequently removed to reveal
to two
intent of the
Taylor
officers involved.
v.
packages of
wrapped
heroin
in prophylac-
Arizona,
848,
(9th
State
471 F.2d
851
Cir.
tics.
cert,
1972),
denied,
1130,
409 U.S.
93 S.Ct.
948,
agents,
Two other
501
Furthermore,
the search
1889,
40, 67,
smuggling.
York,
20
88 S.Ct.
392 U.S.
(1968); Henry
v.
then did not reveal
contra-
917
United
conducted
L.Ed.2d
168,
customs
weapons.
concluded that he was arrested the WALLACE, Judge, dissenting: Circuit here. circumstances Coates agree findings I cannot the factual force, supra. degree even the district as to what oc- though guns pointed, were drawn or clearly erro- curred on March unreasonable; precipitated it was neither neous. The arrest issue constitutes one of appellants justi- the conduct of the nor questions deciding those makes close fied the immediate environment and harmony with difficult. While I am events. The circumstances of this case are many parts majority opinion my of the similar to those in United States v. Strick- brothers, I am convinced that the test es- ler, supra. The court there held the arrest determining when an arrest tablished for complete when Strickler encircled test, faulty. applying occurs is Even by police vehicles and confronted with offi- the closeness of the issue cаuses me to cial gunpoint. orders made at See United support the factual determination v. Ramos-Zaragosa, Therefore, judge. respect- I must district and Plazola v. United *6 fully dissent. 56, (9th 1961). 291 F.2d 60 Cir. We find that complete arrest was in our by case time each man was taken locations, if not be- judge, listening The district after to and
fore. evidence, carefully weighing all of the came proper to the conclusion that this was a specifically The court below ruled is, stop. investigatory That that there was that there was no cause for an suspicion present a founded or reasonable agree arrest. We with that determination. stop which allowed the customs officers to activity Most of the observed Brignoni- the taxi. v. See United States was innocuous and consistent with the be Ponce, 873, 2574, 884, 422 95 45 U.S. S.Ct. typical havior of a Any visitor. inferences (1975) (officers reasonable L.Ed.2d 607 need to be drawn from their observed activities vehicle); suspicion stop would be Finally, contrived at best. there 476, Rocha-Lopez, (9th 477 527 F.2d Cir. strong is a suggestion stop that 1975) (founded suspicion and reasonable pretext subterfuge detention was a or same); Wil suspicion substantially are enable the officers to conduct a warrantless Porter, 412, (9th son v. 361 F.2d 415 Cir. having search after failed to otherwise sub 1966) (brief detention valid where officers suspicions stantiate their during the four action). grounds had reasonable for their days stop of surveillance. The and deten appellants majority grips tion of with did not occur under the never comes exigent finding usual fact circumstances and was not whether this of
503
525,
395,
suspicious arrest at activity Beck and causе for an the time oí Dickerson in apparently something investigatory the taxi. If the looking motel; hedges (8) stop prior to the offi- near their the extensive turned into an arrest cause, traveling finding probable cers we would be unusually use of taxis for short required evidence which re- (9) suppress Nogales; distances in rental and use If, sulted from in this case. the search deposit of a safe Beck and box Dickerson hand, other there were stay area; despite their short suppression (10) be no need for because change during of motels their short during patdown, the evidence was found stay. While no one the above factors pursuant which is to a reasonable allowable may justify be suspi sufficient to founded 1, suspicion stop. Terry v. 392 88 cion face, and several neutral are on their (1968). 889 20 L.Ed.2d the test is may not whether the conduct activity, deemed with innocent consistent majority three tests for establishes circumstances, whether all the under determining when an arrest has taken the officers in believing were reasonable place: (1) average person, whether the in- activity that criminal was involved. United crime, reasonably nocеnt of a would think Holland, States v. (9th F.2d arrested; (2) being he the extent Cir.), denied, cert. 422 U.S. curtailed; (3) is freedom of movement Viewing L.Ed.2d 674 these degree stop of force used to manner light factors in a most favorable to the and detain. government, say cannot test majority’s first refers to what suspicion clearly reasonable errone “average person” “ordinary citizen” ous. circumstances; would believe under give any weight Nor can I specula- is, hypothetical would this individual majority tion of the on the majori- believe he arrested? The way to the airport pretext. wаs a mere ty directly any does not case as authori- cite Such a factual would have to be ty refer this test. The does made the trial court and none was made Scheiblauer, F.2d in this case. apparently The officers waited prop- but that citation is until the possible last minute secure all Indeed, erly preceded by “See.” Scheib- during valuable investigation leads this of a any lauer did there is such not hold that possible They narcotics offense. did not language test. The is: know might what other evidence be devel- thought That Scheiblauer oped on the way airрort. In addi- he is of no had been arrested conse- tion, I find nothing improper with making that, quence. We are convinced place at a which was safest for the circumstances, average, similar rea- officers. person, thought sonable would not have event, that he had been arrested. II. did, person even if he such would at why least have asked Because I conclude that the finding of accosting him and whether or not he was is errone- under arrest. ous, I charges must examine the made that, Beck and It language Id. seems to me that this case, facts of this therе was an prior merely response argument arrest to an to the time says the officers found the appeal, nothing narcotics. Scheiblauer in his *8 The is an investigatory whether more than was that Scheiblauer not reason- stop, properly pursuant to founded able in his belief he was arrest- that suspicion, became Significantly, an because of the ed. first two sentences if the actions of the of quoted passage literally, customs officers. Resolution the taken as are of this issue they majority, is critical due to the the apparently by of are then the district court the consistency. that officers had no that the third require would Supreme Court estab- place. In the literally. We also be taken sentence may “stop” an require inquiry to make police thus defendants lished that officers to be can be considered before which do not in circumstances individual is not should not be surely arrest. That and Terry an arrest. warrant n the law. 22, 30, is 1868. There 88 S.Ct. average citi- addition, per- Terry -type stop, reasonable in a a In the no doubt that is such as son test unworkable situations and liberty of is curtailed zen’s movement test, apply majority that before To the us. Thus, has in fact restricted. where average an reasonable we must assume that suspi- a reasonable stop upon been a law, can tell the person, unlearned cion, applied. test should not be the temporary a detainment difference between by majority The the third test relied investigation pursu- by police officer and of used in the and manner force “degree is In both in- Terry ant to and an arrest. con- majority The the detention.” stop and stances, person average the un- reasonable as a cludes, of the evidence on the basis his freedom of movement derstands that overwhelming whole, “an there was instances, In the has been restricted. both “implied authority” restraint show of probably questions. ask police officers will ripened into actual immediately to me to establish a It seems unreasonable custody,” holds physical restraint and requires “average rule which the by complete in case arrest our “the two person” to differentiate between these man taken two the time each police judges when types of confrontations locations, seрarate not to if before.” lawyers time have such difficult ana- Indeed, lyzing average them. reasona- authority, as overwhelming show of The person simply does have the neces- ble not is the by majority, apparently indicated sary experience legal understanding to involved; (1) following: nine officers make differentiation. (2) vehicles taxi was boxed in majority’s requires second an test (3) approached stop; six officers evaluation the extent that the officers of taxi; taxi; (4) the officers surrounded person’s curtail freedom of movement. (5) (although the officers were armed opinion, majority In footnote 2 its (6) two offi- guns); did draw their does not reach the issue whether such a test to cers each of the defendants escorted appropriate been a is when there has be questioned to three different locations pursuant suspicion.1 I to reasonable As and frisked. have concluded that the of reasona- findings reviewing factual erroneous, clearly I ble light in a most favorable district court must reach that issue. re- The so-called government, I not conclude do liberty striction of of movement test had its оfficers None are erroneous. Henry foundation indication spite an drew their 168, 4 L.Ed.2d might be wanted the defendants that one of (1959). See also Plazola v. United implication robbery and for armed 1961). While the in- danger might be that fatal therefrom Henry “restriction freedom move- together with knowledge, That volved. language specifically ment” has not been investigating overruled, fact helpful officers longer always it is no to be a narcotics appeared has what to them determining when an arrest taken If, stop. suspicion for meaning was no founded 1. The of this statement eludes me. major- openly only although purports never considered decide that “the already latter, then, ity, complete as is the arrest ... the time each shown, analysis regarding majority’s when man was taken loca- dicta; tions, Yet, pure is the majority, if it if occurs is not before.” either arrest former, actually understand then it difficult in footnote indicates that it is decid- becomes that an at the first instant is ever not an arrest. arrest occurred when a taxi, or that there *9 offense, importation justify response that the not unrea- seems to me to officers’ implicit finding judgе district under the sonable circumstances there- great- that the use of additional officers for that there was no That fore arrest. protection er reasonable. Nor do I con- be should not overturned. clude wrong that the district I would affirm convictions. because vehicles used instead of one that there was an ar-
rest.
The decision to the three de- preliminary questioning
fendants for when appear
the taxi was does unrea- officers,
sonable. That rather than
one, took each defendant aside did not seem to the district be court to unreasonable. America, UNITED STATES Thus, conclude, I cannot as does the ma- Plaintiff-Appellee, jority, “overwhelming there was an case; authority” indeed, show of in this circumstances, Eugene CONRAD, under appear does not William to me be an Defendant-Appellant. response unreasonable situation While hand. some disa- No. 78-2244. gree judge’s with the district factual find- ings, I do not find them to be erro- Appeals, Court neous. Ninth Circuit. provides proper This case setting June proper determine when a stop pursuant to suspicion ripens into an arrest. It give opportunity also us an to define
with particularity more can test which applied point
be determine what
arrest has occurred. have concluded that inquiries
there are three would
appropriate: (1) What was the extent
the detention the law enforcement offi- (2)
cers? scope What was the of the search (3) the officers? and Was the force
used reasonable under the circumstances? response
In inquiry, to the first the ex-
tent of the detention appreci- here was not
ably different from what be expect-
ed in Terry -type stop under similar second,
circumstances. As to the patdown, search other than a which was pursuant
valid rea- suspicion.
sonable The real arises essence, inquiry which, the third
was stressed under its for- degree
mulation “the and manner of
force used in the and detention.” I
would restate the test in order to determine
whether what was done was reasonable. case,
this apparently the trial court believed