United States v. Louis Corona, Iii, Etc.
661 F.2d 805
9th Cir.
1981
Check Treatment

*2 thought point way. but he could He CANBY, Before SNEED and Circuit said he had arrived in the about area ten Judge. HOFFMAN,* Judges District days previously staying and was with a CANBY, Judge. Circuit friend while he sought ship- work as a wright. possessing Corona was convicted of an

unregistered Avenue, firearm in they violation As reached 70th Corona 5861(d) U.S.C. and 5871. He §§ contends asked They pro- Wolfe turn left. then that the district suppress- court erred in not a broadly ceeded into defined area —from ing shotgun the sawed-off found on along his 224th to 260th Street 70th Avenue— person during search. We where Wolfe knew that nine ten thefts agree and search were from automobiles had occurred in the last upon days. that Corona ten Corona asked Wolfe turn west was commit or had committed a 246th Street. Wolfe knew that at that crime and that he presently was armed and corner a revolver been had stolen from a dangerous, findings and that days previ- officer’s truck about four contrary district court to the clearly ously. Wolfe also knew that 246th Street We accordingly erroneous. paved only blocks, reverse. for one and one-half * The Honorable Walter E. Senior Hoffman, Dis- Judge, Virginia, trict for the Eastern District designation. sitting by not, gravel ended in a turn into a example,

and then do indicate criminal activ roadway. ity Wolfe asked which displayed Corona house in the manner in the two eases wanted, upon by he but Corona was not sure. He most government, relied Unit thought Orozco, said he he could find it and (9th would ed States v. Cir.), F.2d 789 denied, get out. L.Ed.2d and United States v. *3 Wolfe let Corona out of the car and asked Collom, (9th 1979), 614 F.2d 624 Cir. cert. Corona for his identification. Corona an- denied, 923, 1862, 446 U.S. 100 S.Ct. 64 that he had none with him

swered because (1980). L.Ed.2d 278 per In Orozco the two left he had his wallet at his friend’s house. stopped sons were a seated in car in a put Wolfe then asked Corona to his hands high-crime them, upon area and one of see top patted of the car and he Corona car, ing patrol got the out and went to a object down. He felt a hard and asked nearby appeared wall and drop object an it Corona what was. Corona answered that Collom, police over it. In investigating a “protection” it was his and Wolfe then suspected burglary car persons found two reached inside the coat and removed a load- stooping automobile, behind the rear of an ed, shotgun. sawed-off He also found three they away rapidly walked when the pocket. shells in Corona’s upon officers came compara the scene. No case, ble behavior present occurred in the THE STOP engage nor did Corona in the repeti kind of pat-down In order to conduct a “casing” tious behavior that was held to search, a officer must be entitled to justify stop Terry Ohio, 1, a v. 392 U.S. stop person the to be searched. v. Adams 1868, (1968). 88 S.Ct. 20 L.Ed.2d 889 Williams, 143, 146, 1921, 407 92 U.S. S.Ct. contrary, On the we believe that the 1923, (1972). 32 L.Ed.2d 612 Even if it be present Texas, case is closer to Brown v. 443 stop assumed that did not occur until 47, 2637, (1979), U.S. 99 S.Ct. 61 L.Ed.2d 357 put Corona was told to his hands on the stopped persons where officers two ob- car1, Wolfe, the circumstances known to walking away served to be from each other totality, taken in their did not furnish the high in an area known for a incidence of required articulable facts as a basis for a drug Supreme traffic. The Court held the suspicion founded that Corona had commit stop to be a violation of the Fourth Amend- ted or was to commit a crime. See ment, noting activity that per- Brignoni-Ponce, v. United States stopped objective sons furnished no basis 873, 884, 2574, 2581, 95 S.Ct. 45 L.Ed.2d 607 suspicion for a they reasonable that ; (1975) Rocha-Lopez, v. States 527 engaged similarly in criminal conduct. We 476, (9th 1975), denied, F.2d 477 Cir. cert. stop conclude that the unlawful in the 977, 2181, 425 96 U.S. S.Ct. 48 L.Ed.2d 802 present case. ; Cortez, (1976) 449 United States v. U.S. 690, (1981). 101 66 L.Ed.2d 621 S.Ct. THE SEARCH may While it have been unusual for Corona was, standing search, justify to be where he and for him to In order to it was necessary be uncertain of the exact location of his for Wolfe to have a founded sus destination, facts, picion, upon and to be without identifica articulable that tion, presently dangero those facts do not indicate a crime Corona was armed and Ohio, 1, 27, They Terry committed or about to be committed. us.2 v. 392 88 U.S. conclusions, 1. Because we conclude that there was 2. In no its the district court stated pat-down stop for a at that was was constitutional because it or search only pat-down pat-down, necessary after the a revealed hard time of the isit not for us object that a further intrusion was made question stop may to consider the whether a reaching pat-down inside earlier, Corona’s coat. Deputy have occurred at the time that initiated, however, may not be in the absence requested Wolfe Corona’s identification. 808

1868, 1883, (1968). personal security.” Again, 20 L.Ed.2d 889 Id. at inquiry nothing the facts 1878. To aid that certain verbal we find known developed formulas upon which to base a have been which when Wolfe such belief. applied provide in an even handed manner The mere circumstance that Corona was consistency long rainy night, some in the treatment so- coat on a even “stop stops called together facts, and search” cases. As to with the other taken majority repeats applies is formu- does not suffice. This not case where investigatory la a valid weather, must rest the coat was unsuited to the see upon suspicion, “a Bull, reasonable based on ob- (4th United States F.2d Cir. facts, jective that the individual is 1977), denied, involved Texas, activity.” in criminal See Brown v. where was L.Ed.2d 545 2637, 2641, only suspicious unsuited but contained L.Ed.2d 357 As conspicuous bulge, see United States *4 majority applies searches the states and the Mireles, (10th Cir.), F.2d de 583 1115 permissible standard that such searches are nied, 332, 936, 439 99 58 U.S. L.Ed.2d where the officer “has to reason believe (1978). 332 The is situation here far more dealing that he is with an armed and dan- Illinois, analogous 85, to Ybarra v. Ohio, gerous Terry supra, individual.” v. 338, (1979), 100 S.Ct. 62 L.Ed.2d 238 in 27, 392 U.S. at 88 1883. pat-down which a held search was unlawful person when the searched was a Inevitably specificity the of these tests weather, appropriate coat the to was not draws inquiry” attention from the “central recognized person as a with a criminal his appropriate application to the of the Fourth tory, gave no indication that he carried particular stop Amendment to a pat- and weapon, threatening and no made over down long ques- search. So as I the frame dupli tures. All of these circumstances are presents tion this case terms of the rea- present cated in the case. of stop pat- sonableness Officer Wolfe’s and down I difficulty. search encounter little accordingly We conclude the that Officer Wolfe did competent what a officer stop pat-down and search of Corona were would do under the circumstances. His requisite suspi the conduct was reasonable. He had reason cion, facts, drawn from articulable and that apprehensive purpose be about the of the findings contrary the district court’s to be appellant’s actions and to be anxious about clearly erroneous. safety. his own The incidence of crime REVERSED. area, vagueness within the the of appel- the directions, lant’s out-of-the-way the nature SNEED, Judge, dissenting. Circuit spot the appellant of at which the asked to and, This is an odd case no doubt for that left, be the hour night, of the and the reason, a difficult one to decide. The ma- any absence of justify identification the jority’s they go conclusions insofar as are conclusion that the limited intrusion the and, quite defensible were I more certain appellant’s personal security resulting from n Officer legitimacy exclusionary of the stop pat-down Wolfe’s and search generally rule as applied, perhaps I would was reasonable. given my reservations, concur. But I must arise, acknowledge, Difficulties I when respectfully dissent. What, the verbal formulas are invoked. taught Ohio, We by Terry have been v. majority inquires, implicitly suggests that 1, 1868, 88 S.Ct. 20 889 was, L.Ed.2d appellant been, might or had be- “the inquiry that central under activity, come involved in criminal or that Fourth Amendment” is as “the reasona- dangerous? he was armed and Other than bleness in all the par- circumstances of the nothing. what has been mentioned there is governmental ticular invasion of a enough majority. citizen’s This is not For 85, 92-93, 62 subject arm- that is U.S. of a founded 444 Illinois, dangerous. presently Ybarra v. ed and L.Ed.2d that even it I hold under is. would me by obtained FAULKNER, formulas the evidence Faulkner,

these John L. Laura Jo pat-down stop Faulkner, search is means R. Fred and Susan L. Alternatively, I would Faulkner, hold Plaintiffs-Appellants, admissible. because the the evidence is admissible that search was reasonable WATT,* Secretary James G. of the Inte appellant’s personal security. intrusion rior, al., Defendants-Appellees. et might that lingering Whatever doubt oth- No. 80-3023. my flight takes haunt mind erwise exclusionary purpose of the rule is re- Appeals, States Court Despite uncertainty some caused at called. Ninth Circuit. Ohio, 643, part by Mapp least Argued July and Submitted 1981. (1961) 6 L.Ed.2d is Decided Nov. 1981. acknowledged generally now rule designed made and was the courts Schlesinger deter See behavior. Wilson, Privacy Property, and Deter- Rule in Exclusionary rence: Search of Rationale, Duquesne L.Rev. Sunderland, Liberals,

(1980). But see Con-

servatives, Rule, *5 Exclusionary and the C., 343, L.

J.Crim. & 375-77 This

decision, however, will not deter officers position find

who themselves in a similar to in which found Officer Wolfe himself this case. Nor it. Officers

in should so being will not risk slain on a

situated back because of nor can I

street this decision

good conscience ask them to assume such policemen The

risks. incidence of murdered high lightly.

is too to dismiss the risk

depth my feeling by my can be evidenced

affirmation that had I been Officer Wolfe I stopped

too would have and conducted a

pa1>down appellant. search of the me, therefore,

To the fundamental issue presents

this case down to comes this: exclusionary thé rule be

Should invoked it, should, will, neither nor deter the question. from the I

officer intrusion Thus, respectfully

think not. I dissent.

* James G. Watt has been substituted Cecil D. Appellate Andrus as the under defendant Rule 43(c)(1).