United States v. Rigoberto Fernandez-Castillo

notices, if prejudicial, flawed are none- valid and concluded that petitioners

theless prejudice they timely

suffered no because

filed their petition.19 Additionally,

court legislative concluded that pur-

pose supported of the Act the court’s hold- petitioner that a prejudice must show

to invalidate a notice.20 The deci- Smith reasoned,

sion is well provides further

support for our conclusion.

IV. CONCLUSION that,

We affirm the tax court. holdWe prejudice, the absence of fail- IRS’s

ure to include the calculated date on a deficiency

notice of does not render the

notice invalid.

AFFIRMED. America,

UNITED STATES of

Plaintiff-Appellee,

Rigoberto FERNANDEZ-CASTILLO,

Defendant-Appellant.

No. 01-30398. States Court of Appeals,

Ninth Circuit.

Argued Submitted Oct. 2002. April

Filed 2003. Id. at 915. 20. Id. at 915-16. (1) reported had been

where: the vehicle (2) driving erratically; the officer who knew the source of stopped the vehicle (3) report the described the report; the detail, color, the car’s noting vehicle in model, plate; make and and state license (4) contemporane- made ously with the source’s observations (5) driving; the officer discovered erratic indi- the car the area where found; likely cated that the car would (6) that the driver was the officer noticed wheel, a very steering close to the sitting typical officer knew was of behavior the (7) drivers; and the officer cor- impaired roborated car within its lane. observing the weave circumstances, totality of these Given correctly hold that the district court we found, evidentiary hearing, after a reasonable existence of impaired the car was operator investigatory properly held the vehicle was constitutional. I Jr., Kelleher, 18, 2000, Kelleher Law Of- September afternoon of Robert On the MT, fice, defendant-appel- Billings, Transportation Department Montana (MDOT) Terry lant. Jay Harvey and employees In- on traveling were eastbound Omland Suek, Harper Assistant Lori City, Montana. Miles terstate 94 outside Falls, MT, and Attorney, Great States strip the median They stopped Hicks, At- United States Shelley Assistant and then freeway pick up debris divided MT, plaintiff-ap- Billings, for the torney, accelerat- Harvey was re-entered traffic. pellee. high- maintenance truck ing their state approach a car when he noticed way speed caught mirror. The car in his rear-view its left-turn attention because Harvey’s the car did blinking, but signal light was Instead, the car left lane. not move to the FISHER, FERGUSON, Before: the two east- line of the center straddled TALLMAN, Judges. Circuit passed eventually lanes. The bound TALLMAN, Judge. Circuit traveling truck while Harvey and Omland’s passed, lane. After right an offi- to decide whether We are asked moved over into signaled driver cer had so, Harvey and After it did left lane. justifying impaired, of a car was driver yellow cross the car, noticed the car Omland of that investigatory traffic along line that ran the median. The car vehicle traveling eastbound that matched passed slowly- two other vehicles and then passed, described vehicle. As the car right drifted back lane and across Schock noticed the driver was the fog line to the shoulder of the inter- very wheel, steering close to the a behav- state. It then Schock, drifted back towards the ior that as a veteran traffic officer lane, left where the driver-side tires with years experience eleven of and hun- touched the center line. arrests, dreds of DUI im- associated with paired drivers. Schock made a U-turn Concerned that the driver of the vehicle began following the Monte Carlo. He acti- impaired, was Harvey and Omland decided vated his cruiser’s video recorder and be- report their observations to the Mon- gan filming the driving perfor- vehicle’s Highway twenty-two- tana Patrol. In his mance. The car description matched the MDOT, year tenure at the this was the by Harvey. radioed-in Soon after he Harvey second time had decided to caught up Carlo, to the Monte Schock driving. such erratic Harvey radioed his noticed the car drift in its lane and then dispatcher City. MDOT Miles The observed “one rather large movement to- dispatcher relayed MDOT then wards the center line and then back driving erratic Highway Montana again.” dispatcher. Patrol dispatcher MDOT Highway told the Patrol patrol got As the close to the Monte “one of our guys” called about an older Carlo, the driver decided to exit into Miles model black Monte Carlo near milepost City. stopped the car on the 116 on eastbound Interstate 94 whose driv- freeway exit off-ramp milepost at 138. At “evidently er driving quite was erratical- suppression hearing, explained Schock ly.” She stated that the car had North why he stopped the Monte Carlo even Dakota plates license that the em- though he personally did not observe the ployee thought read “7575.” An MDOT driver of violation, the car commit a traffic log recorded the time of Harvey’s report such crossing as the traffic lines: as p.m.1 2:18 I probably would have followed [the car] a little if longer stayed it had on the

Officer Calvin Schock received the re- interstate, but as the car started to take port driving 2:21 p.m. at from and go time, off the exit at right Billings, Montana, Highway Patrol dis- kind raised the patcher bar me a little while he bit was at his office in Miles now, it, because if City. following we’re if we dispatch conveyed following driver, do have an impaired information: going a black we’re Monte Carlo with North to a—I know stop sign Dakota license there’s a plates heading east- bound end of the ramp. on Interstate 94 exit We’re getting was seen into erratically near two-lane traffic milepost 116. The where traffic is oncom- dis- patch ing. better, also indicated I And decided it came would be from the everybody, MDOT. safer for if I made the stop got before we into town.

Officer Schock immediately left his of- fice and headed Carlo, westbound on After stopping Interstate the Monte Schock 94 in an attempt approached to locate the black Monte the vehicle to contact the driv- Carlo. Near milepost Schock saw a er. As Fernandez rolled down the win- 1. In addition to the Highway MDOT "Communication dispatcher’s subsequent Patrol form, Emergency Report” Incident relay which of the information to the officer in the call, logged Harvey’s audiotape recording field was introduced into evidence at of the MDOT Highway hearing. call to the Patrol and investigatory traffic “is marijua- progeny, an dow, immediately smelled Schock under the Fourth Amendment permissible the car. Schock from inside coming na suspicion.” if supported on the driver’s piece of ash also noticed Ornelas, driver, deciding determining that After lip. (Fernan- whether Officer Schock had Fernandez-Castillo Rigoberto operating that Fernandez was dez), country illegally, impaired, the Monte Carlo while which immigration Fernandez on an detained car, justify would Fernandez’s warrant, Pursuant to a state search hold. must, has re- Supreme we Court searched, later and officers the car was us, peatedly instructed consider the totali- methamphet- grams over 500 discovered ty of the circumstances. United States in a cabinet speaker amine hidden Arvizu, 273, 266, 744, 534 122 U.S. S.Ct. by a Fernandez was indicted backseat. (2002). 151 L.Ed.2d 740 All relevant fac- count of grand jury posses- on one federal must be considered the reasonable tors methamphet- with intent to distribute sion that, those factors suspicion calculus—even 841(a)(1). § 21 amine in violation of U.S.C. context, might entirely in a different be suppress the evi- Fernandez moved to Id. 277-78, 122 innocuous. S.Ct. ground in the search on the dence found properly The district court concluded not based traffic was original of Fer- report factual record that the this therefore on reasonable was driving observed and nandez’s erratic Af- of the Fourth Amendment. a violation by employees, coupled called-in MDOT the district hearing, a suppression ter corroborating with Schock’s own Officer justi- court found that the traffic observations, gave rise to reasonable and denied the mo- inception fied from its impaired that Fernandez was tion. justify investigatory stop. sufficient to of the jury guilty A found Fernandez charged in the indictment. drug count A that the dis- appeals, arguing Fernandez begin analysis by our dis We suppressing not evi- by trict court erred report of the MDOT cussing the relevance stop of was fruit of the unlawful dence that For a third- conveyed to Officer Schock. affirm. his car.2 We activity criminal party report suspected the basis of an officer’s to form II suffi possess must suspicion, novo the district We review de v. reliability. See Florida cient indicia of evi suppress of a motion to court’s denial J.L., 1375, 266, 270, 120 S.Ct. 146 529 U.S. States, dence. Ornelas United 517 U.S. White, (2000); Alabama 254 L.Ed.2d 699, 1657, 690, 134 L.Ed.2d 911 116 S.Ct. 325, 330, 110 110 S.Ct. 496 U.S. (1996). of the district findings Factual Williams, (1990); Adams v. L.Ed.2d 301 for clear error. court are reviewed 143, 147, 32 92 S.Ct. U.S. Hammett, 1054, 1057 States v. (1972). reasons, For several L.Ed.2d Cir.2001). (9th report was reliable think the MDOT we Ohio, Terry v. must be considered and therefore Under (1968), suspicion calculus.3 L.Ed.2d 889 and its unreliable, would still challenges 3. Even if his conviction on 2. Fernandez also weight totality of under the entitled to some grounds, in a which we address two other But, Supreme as the J.L., circumstances test. disposition separate filed con- memorandum recently emphasized' in an unrelia- Court temporaneously opinion. this alone, give an offi- tip, standing does not ble significantly, for it Most order to be considered reliable as coming from a known source. driving came from a known source: dispatcher MDOT. The MDOT knew that argument The dissent’s the tip Jay Harvey employee provided MDOT anonymous must be considered because indeed, report; Harvey’s name was writ- Schock did not know which em- MDOT log ten as the source on the MDOT intro- ployee made the unfounded. suppression duced into evidence at There are simply many not that MDOT hearing. employees in Eastern And Montana. cer- tainly there are even fewer MDOT em- relaying Harvey’s report When ployees working City. near Miles Officer Patrol, Highway dispatcher in MDOT virtually Schock testified that he knew all Highway dispatcher formed the Patrol employees City the Miles guys” that “one of our called in the report area. Though dispatcher the MDOT did “evidently and that the driver was Harvey’s High- disclose name to the quite erratically.” Although Highway way dispatcher, Harvey’s Patrol we think Patrol para distilled and identity easily could be ascertained phrased this in passing information it on to J.L., simple inquiry.4 Supreme Schock, Officer the dispatcher’s knowledge Court explained anonymous tips are properly part is considered as anal our often tipster unreliable because the cannot ysis of reasonable suspicion. See United be held accountable for fabrications and 221, 231-32, Hensley, States v. 469 U.S. tipster’s reputation the cannot be assessed. 675, (1985); 105 S.Ct. 83 L.Ed.2d 604 J.L., 529 U.S. at 120 S.Ct. 1375. Robinson, United States 536 F.2d Here, because a known complain- MDOT (9th Cir.1976); Easyriders Free cf. ant could be held accountable for fabricat- Hannigan, dom F.I.G.H.T. ing any story, the concerns raised anon- (9th Cir.1996). 1486, 1497 Thus Officer ymous tips simply are not present. reasonably- correctly Schock —-and —as At suppression hearing, Officer report sumed that the came from a known Schock testified that he report knew the source, an employee MDOT had who re erratic came from the MDOT. This ported seeing erratically driven Monte significant fact was to Schock. Officer Carlo. We do not believe that the dis Schock testified that he worked closely conveyed patch to Officer Schock must personnel, with MDOT had received re- have contained the magic words “this re ports of traffic infractions and hazards in port came from an employee who MDOT, past from and had found those personally driving” observed the erratic reports to be reliable. Because Officer opposed report to “this came from MDOT” Schock was personnel familiar with MDOT Terry J.L., cer reasonable to effectuate a report. within minutes of the MDOT J.L., stop. 529 U.S. at 120 S.Ct. 1375 long record did not indicate how (holding anonymous tip that a mere that a police responding tip. waited before to the person carrying gun- corrob- Finally, —without Id. Officer Schock corroborated the orating provide evidence—does not a reason- driving through his own in- wrongdoing able justify- of criminal dependent observations. There was no cor- ing person). the officer's frisk alleged illegal activity roboration of the in J.L. We distinguishable note that J.L. is from the Id. J.L., case at bar. "tip” In contrast to Also, this case came from a known source. And, course, Harvey’s identity was ascer- contemporaneously was made suppression tained since he testified at the observation,

the informant’s and the officer hearing. discovered the dispatch car described in the in his area and trusted their reports, he watching the Monte Carlo weave across weigh was entitled to that fact in respond- lines, traffic and Officer Schock could have dispatch he received. See readily deduced contemporaneous na- Adams, ture report. The Highway Patrol 1921(holding that an unverified from a dispatcher informed Officer known sufficiently informant was reliable the black Monte Carlo was observed driv- frisk). justify Terry stop and ing erratically while eastbound on Inter- assume, Even if arguendo, we state milepost 94 near 116. After leaving report of erratic driving conveyed to Offi- office, Schock entered Interstate 94 anonymous nature, cer Schock was we near milepost 135. Traveling westbound, still conclude that must con- Schock almost immediately discovered the given sidered weight due in the rea- Monte Carlo at milepost 134. Given this sonable suspicion calculus because re- events, chain of and the fact port possessed several indicia of reliability. Monte Carlo had traveled 18 miles First, the report suspect described the from the location where MDOT had ob- car in detail. Officer Schock knew served the erratic driving, Schock could (black), (a car’s color make and model have reasonably concluded that MDOT’s Carlo), Chevrolet Monte and that the car observations were made only a short time had North Dakota plates.5 license Fer- before his own. reports Because made nandez’s car matched this description ex- contemporaneously with a complainant’s actly. observations generally are more reliable Second, the detailed report provided the than those reports time, made later in “predictive information” that the Supreme Schock could assign additional credence to Court lacking found J.L. See 529 U.S. at the dispatch he received. 271, 120 S.Ct. 1375. stated We therefore that hold the MDOT re- that the Monte Carlo was traveling east- port possessed reliability indicia of certain bound on in Interstate 94 an erratic fash- given must be weight due in determin- ion, thereby indicating that the vehicle ing, under the totality of the circum- should found east milepost further stances, whether Schock had a reasonable Indeed, Schock encountered the suspicion that the driver of the Monte Monte in exactly Carlo place one would impaired. Carlo was expect it and, to be traveling as discussed section, in following in moving a fash- B ion that indicated impaired that an driver was at the wheel. We do not hold that the MDOT

Third, Harvey report, alone, standing Omland called provided in the Officer report of erratic driving immediately after Schock with reasonable suspicion 5. Harvey and Omland gave a more actually relayed detailed by Officer Schock description of the car to their dis- MDOT Highway Patrol dispatcher, while omitted patcher. The log MDOT introduced into evi- plate the license number of the Monte Carlo suppression dence hearing at the specifically and that the Monte Carlo was an “older mod- noted the Monte driving that Carlo observed el,” sufficiently locating detailed. After erratically was an model older had Monte milepost black Carlo near which North plate Dakota license number "ND found, is where the car should have been 7575.” But Officer Schock was in- be reasonably could certain by Highway formed Patrol that was, fact, that car he followed the car MDOT observed a black Monte Carlo with dispatch. described plates. North Dakota We think the Fernandez, own absent Officer Schock’s cor- Schock drove over the same road,

roborating question ruts, That patch observations. is which did have some determining not before us. When perceive any reason- but he did not ruts or wind suspicion, able courts must examine the may that have accounted for the Monte See, totality e.g., of the circumstances. weaving Carlo’s since neither had ef- Arvizu, 534 U.S. S.Ct. 744. on weaving fect Schock’s car. While with- Here, other factors in addition against in one’s lane of not travel is must be considered in the Montana, reasonably law associ- calculus. type ated this consistent with impaired the behavior of an driver.6 locating

After the black Monte Carlo report, described the MDOT Officer are mindful pre-Arvi- We of our circuit’s Schock noticed the driver was precedent zu that the dissent cites for the wheel, very steering close a behav- proposition that “movement within one’s typical ior that Schock knew was of im- ... ground own lane is not a sufficient paired drivers. See id. at 122 S.Ct. which to suspicion.” base reasonable But 744(explaining weight that due must be distinguishable these cases are from the given “to the factual by inferences drawn case before us. Each of these cases dealt officer”); the law enforcement Illinois patrol agents suspected border who Gates, 213, 232,103 transporting illegal vehicle was im (1983) L.Ed.2d 527 (explaining that a migrants drugs. or See United States v. review of court’s evidence “must be seen Jimenez-Medina, (9th 173 F.3d 752 Cir. weighed library analy- terms of 1999) (suspected illegal immigrant smug scholars, by sis but as understood those gling); Rodriguez, United States v. enforcement”). versed in the field of law (9th Cir.1992) (same); F.2d 592 Schock testified that a sitting very driver Hernandez-Alvarado, States v. close to the steering wheel could indicate (9th Cir.1989) (suspected drug smug impaired the driver was and trying to gling). It perfectly understandable that concentrate on the compensate road or swerving within one’s own lane of traffic peripheral loss of vision drugs due to or would not support alcohol. smuggling, which nothing has to do with impairment, Schock also support observed Fernandez drift— but that it would Offi appreciably rather cer as we can see on the Schock’s reasonable suspicion that videotape one side of his lane and then Fernandez was a operating vehicle under —to back to the other following side. When the of drugs influence or alcohol.7 alone, Standing 6. investigatory stop Officer Schock's though observa- an the officer —even weaving tions of the Monte Carlo within its does not observe the driver commit a traffic might supported investiga- Regardless, lane not have the infraction. Id. the MDOT tory stop recently sitting We and steering Fernandez’s car. Fernandez's close to the investigatory stop distinguishable declared an wheel make this unconstitution- case from only al where the officer observed the car for Colin. driver, stopping 35-45 seconds before the the by distinguishable "weave” observed 7. the officer was not This case is also from State Colin, 157, pronounced. Lafferty, United States v. F.3d 291 Mont. 967 P.2d 363 (9th Cir.2002). (1998). 445-46 Supreme Our decision in In that the Montana expressly open possibility Colin dispatcher's left the that Court a concluded that "pronounced weaving” weaving coupled or for a with an officer's observation of the might give crossing fog “substantial distance” rise to a defendant's the line were insuffi- particularized suspicion that the driver of the cient to create that intoxicated, weaving thereby justifying impaired. car is the driver was Id. at 366. But er- the most direct route from the MDOT Interstate a result of As Missoula, coupled indepen- with his own Spokane deputy ratic local sheriffs observations, had a dent surveillance up along set Interstate 90. to sus- objective basis” “particularized Id. at 1072. Deputies spotted soon a white the driver of the Monte Carlo pect that Taurus, description giv- which matched the stop of investigatory impaired. tipster. Deputies en trailed the therefore consti- Fernandez’s vehicle was Taurus, but the driver did not commit tutional.8 traffic violations that would warrant Id. Finally, police stopping vehicle. C miles, following thirty-two after suggestion, our Contrary to the dissent’s Id. deputies stopped the car.9 United States pre-Arvizu decisions deciding that the Taurus v. Thomas do and United States Morales supported by suspi- was not a reasonable Morales, contrary result. not dictate a wrongdoing, cion of criminal we noted county department sheriffs re- a Montana First, was from a several facts. tip that “a white anonymous ceived an anon- completely anonymous source. “An Taurus, li- bearing Washington 1989 Ford alone,” we ymous tip standing explained, JJY, number 772 was trans- plate cense ve- “does not demonstrate informant’s pound methamphetamine from porting racity reliability anonymous or because Missoula, F.3d Spokane to Montana.” 252 tipster cannot be held if he or accountable (9th Cir.2001). According to information, and provides she inaccurate left tip, already Spokane the car had tipster’s rep- Id. As- police cannot assess way to and was on its Missoula. J.L., Id. traveling 1074(citing on utation.” suming that the car would be check- analysis fact at an intersection to avoid border significant to the court's was the 270-71, training point. S.Ct. 744. The testify Id. at that the officer did not that his factors, taken experience Court conceded these led him to infer that the behav- or alone, explana- "susceptible were of innocent characteristic of an im- ior he observed was Here, Id. at 122 S.Ct. 744. But taken paired tes- tion.” driver. Id. together, held that these factors provided the Court that effect but also reasons tified to objective particularized basis steering formed "a why very close to the wheel vehicle, making stopping the swerving may for[the officer’s] lane indicate im- in one’s meaning within pairment. 277-78, Id. at Fourth Amendment.” Watching very a driver sit close to S.Ct. 744. dissent, According Officer Schock's steering his lane wheel and weave within disregarded because sit- observations must be not, alone, standing give reason- might rise to swerving ting steering close to the wheel and impaired. the driver was able once a lane do not “constitute conduct within supra, (discussing our See note 6 decision suspi- supports finding of reasonable Colin). type But this of be- United States v. disagree respectfully We on this rec- cion.” when, highly as in this havior is relevant ord. report of erratic driv- there is also reliable rejected Supreme expressly the The Court ing. "divide-and-conquer analysis” in dissent’s Arvizu, stop the Ultimately, officers decided to at 122 9. the United States v. Arvizu, at tinted windows. Id. upheld car because had S.Ct. 744. In the Court only illegal in windows are stop the 1072. But tinted investigatory near the border where observed, registered in Mon- stop Montana for -those cars who effectuated the officer government did not appeal, the among things, appeared tana. Id. On other that: the driver any way justi- argue in that the officers were rigid posture; the children in and stiff in his of the stopping the vehicle because artificially waved the as if fied in the car to officer instructed; at tinted windows. Id. 1073. they the vehicle turned were 1375). pick-up at We then ex- truck. after thumping Soon the an El stopped, pick-up Camino truck exit- anonymous the in plained tip that that garage. Believing marijuana ed the that possess case did not sufficient indicia of had been loaded into the back of the El reliability tip provided such that the rea- Camino, stopped officers the vehicle and suspicion. particular, sonable we not- subsequently packages discovered several ed tip specifics. lacked For ex- illegal at substance. Id. 1188-89. ample, tipster suggested the never that suppressed We the evidence in found traveling the car would be on Interstate finding the search of the El Camino after (“The 90. Id. at tip speaks here investigatory that sup- was not general by about location in[ ] terms ported by a reasonable of crimi- ”). identifying ‘Spokane’ and ‘Missoula.’ First, nal wrongdoing. we noted that the We also noted that the deputies failed to FBI tip “was devoid of specifics.” Id. at predictive corroborate information 1189. information in expressed “[T]he in given tip through their own inde- exceedingly equivocal and attenuated pendent deputies observations. The nev- ‘suspicion’ manner: a ‘possibility’ er verified that the car was fact travel- that ‘might’ there be at narcotics.” Id. Missoula, stopped to as the officers Perhaps problematic, 1190. more thirty shy the car city. miles of that Id. tip source of the FBI was unknown. “The that 1077(noting although deputies government presented regard- no evidence did corroborate the identity of the car ing the degree basis for the FBI’s third observations, with their “the tipster’s own speculation.” Finally, Id. we concluded ability identify to the car does not demon- observing people that enter and leave a strate that knowledge he or she had hearing residence three or four activity”). concealed criminal thumps garage in a did not amount Thomas, drugs reasonable that were in we also declared that an the El Though Camino. recognizing that anonymous tip possess did not sufficient wholly may lawful conduct support a find- reliability indicia of support finding ing of suspicion, we held that* (9th 211 F.3d 1186 observations, noise, the sum of the Cir.2000). “tip” in Thomas was for- “conjectural and unsupported tip” FBI warded FBI agents to a local law en- officers, was zero. Id. at 1192. The we County, forcement officer Pima Arizona. concluded, therefore had no reasonable Agents told the officer “that ‘might he suspicion of criminal wrongdoing pay particular want to attention to a cer- the car. Id. tain house’ in Tucson because there was ‘a investigatory stop of Fernandez’s suspicion that possibility there was a plainly distinguishable car is from the traf- might there be some narcotics’ there.” Id. stops fic in both Morales and Thomas. Nothing in the record indicated foremost, First and why suspected the FBI drugs pres- were driving conveyed to Officer Schock came ent at the house. Id. at 1190. source, from a known the MDOT. While it Responding tip, to the FBI local officers true that we declared the FBI began surveillance. An officer noticed nature, Thomas to anonymous it does several people entering leaving follow we must dismiss the MDOT house. Id. at 1188. The officer then similarly anonymous. As we heard three or four “thumps” coming from out, pointed have Highway Montana inside of the garage attached to the house. Patrol knew Id. The officer thumps deduced from these originated from an employee,10 MDOT that something was being Highway loaded into a Patrol dispatcher informed dispatcher 10. The guys” MDOT driving. informed the Mon- our observed the erratic Highway tana Patrol that "one of tip drugs might present came from the be at the report (the the car FBI report, tip of the MDOT residence The basis MDOT. observation; therefore, drugs might present from first-hand identified that be was house; report hand observers—MDOT the and those first never indicated that be Harvey transporting and Omland—could residents of the house were employees Camino) in El fabricating story. drugs for and too innocuous held accountable Thomas, did not indi- factor into the simply In the record calculus anonymous any suspicion wrongdoing. information about the of criminal cate provided “tip.” the FBI its source who Though perhaps innocent in other con- Second, possessed report the MDOT texts, posture driving Fernandez’s than either of the reliability more indicia of performance highly were relevant here. in Morales and Thomas. Unlike tips These two facts tended to show that the Morales, tip in which did not even note probably driver of the Monte Carlo was car would suspect road on which the be impaired, corroborating the report. MDOT exactly de- traveling, the MDOT zeroes, not a sum in This case is of as (trav- the route of the Monte Carlo scribed totality Thomas. The of Officer Schock’s 94 from eling eastbound Interstate observations added to the rehable MDOT 116). milepost Officer Schock encountered report equaled suspicion suffi- precisely Monte where one Carlo cient to the car and fur- investigate expect traveling the car to be would ther. 134). (near milepost

freeway speeds Thomas, in the MDOT tip contrast to Ill specifics. of hardly was devoid Schock, an experienced Officer traffic erratically report described the officer, suspected that the driver of the detail, color, make noting impaired. Monte was If Carlo Schock’s model, and North Dakota license reasonable, objectively was plates suspect vehicle. investigatory stop of Fernandez’s car must Finally, significantly, and most Officer court upheld as the district concluded. corroborated the totality Given the the circumstances driving by observing the Monte Carlo this Schock’s was reason- by noticing weave within its lane and properly able. The district court refused sitting very the driver was close to the found in the suppress evidence subse- steering wheel. No such corroboration of the vehicle. quent search present either Morales or Thomas. AFFIRMED. law officers Morales the enforcement indicating never made observations FERGUSON, Judge, dissenting. Circuit that the driver of the Taurus was trans- I ever an- methamphetamine. Arguably, respectfully dissent. Without porting so, nouncing doing majority’s the FBI that it is there was some corroboration of thump, effectively significant overrules opinion Thomas. The officer heard prior our Fourth Amendment portion which he believed was the sound of mari- majority finds that an juana jurisprudence. into a truck. being pick-up loaded essentially anonymous tip allegedly en- “er- people The officer also noticed several only by an driving,” But in that ratic “corroborated” ter and leave residence. arguably innocent recognized case we that the officer’s obser- officer’s observation behavior, is suf- certainly attenuated from and non-criminal simply vations were too 1124 Cir.1999)). finding Although a of reasonable support

ficient to conclusion, “totality of suspicion. coming this is determined under the the Arvizu, circumstances,” United States v. majority systematically the brushes aside 266, 273, precedent our and misstates the facts of 534 U.S. 122 S.Ct. 151 (1) majority particular, (2002), this case. L.Ed.2d officers must still have prior misconstrues our case law which re- objectively suspect- reasonable basis for quires dispatch pro- a does not when ing legal “a wrongdoing; mere ‘hunch’ is Arvizu, vide information about the factual under- justify stop.” insufficient to a pinnings tip, tip of a must be treated at 744. will U.S. “Courts (2) anonymous; dispatcher as allows a uphold investigatory stop based on a stop anyone, any instruct an officer to secondary or other only information when time, basis, any without if the stated even possesses the information sufficient indicia dispatcher legally does not have a suffi- reliability independently that are cor- so; him asking cient reason for her or to do Thomas, by police.” roborated (3) implies re- employee, state F.3d at 1189. In the instant none of gardless training expertise, may or and, requirements met these are as re- accorded the same deference as law en- sult, instant case must be personnel provided forcement she or he held to be unconstitutional. area; (4) in a sparsely populated

lives and Background I. Factual prior fails to abide our case law which weaving instructs that neither minor with- I begin with a brief recitation of the one’s lane nor close to the steer- facts are relevant to our determina- wheel, ing together separately, either or tion of this matter. the afternoon On supports finding constitute conduct that 18, 2000, September Montana Depart- two of reasonable (“MDOT”) ment of Transportation employ- ees, Omland, Harvey called in a

“The govern- Fourth Amendment allows driving” “erratic to their main office in ment investigatory officials to conduct an City. City The Miles Miles office then re- of a vehicle upon showing of layed to the Montana Highway reasonable suspicion: particularized ‘a (“MHP objective Dispatch”). Patrol suspecting particu- basis person stopped activity.’” specifics Harvey lar exact of what of criminal Omland Thomas, United States v. reported headquarters 211 F.3d to their is not re- 1189(9th Cir.2000) (quoting States corded and was never transmitted to the Jimenez-Medina, (9th Highway Montana Patrol.1 What is re- lane, "passing” 1. straddling Because the information was never commu- or instead the driv- Schock, majority’s nicated to passing Officer dis- lanes for less than a minute. Harvey Maj. Op. cussion of what Harvey and Omland wit- at 1115. As admitted at the however, Maj. Op. suppression hearing, nessed is irrelevant. See this was not relevant, however, Even it majority necessarily improper, given if was that the MDOT misrepresents majority what occurred. The about vehicle was to enter into the left-hand that, Harvey fails to speed. responsible mention and Omland’s at a A lane slow driver pulling truck highway, onto the two other would have waited to see what the truck passed right-hand "driving” Harvey cars or would do. also admitted the Fernan- result, lane. As a passing dez’s Fernandez-Castillo's behavior in the two cars was signaling mysterious, was not proper, passed for a unknown waited as he until he reason, but apparently signaling, merged because he had been MDOT truck before then lane, cars, preparing pass majority passing passed the two cars. The into then that, makes despite sig- signaled again returning much of the fact before naling, only clearly thing Fernandez did not enter the left-hand lane. incorrect Fer- source, tip’s anony- from the Miles about the is treated as transmission is the corded mous). MHP Dispatch, majority’s MHP attempt MDOT to The to distin- City to Officer subsequent call Dispatch’s guish tip the in this case from those we majority acknowledges, As the Schock. anonymous in determined be United calls, all based on these Maj. Op. States v. Morales and United States v. knew at the time that that Officer entirely unpersuasive. Thomas is had was that MDOT he made the surrounding The facts the in tip the dispatch in a to his called virtually indistinguishable instant case are Monte “erratically” driven black Carlo play from in At those Thomas. the traveling east- plates, North Dakota hearing, that suppression Schock testified highway. stretch of particular ward on a nothing reliability he knew about the that, person who made the Directly Majority’s Holding The II. all stop, for he knew at the time of the our Decisions Conflicts with tip anonymous could have come from an v. Morales and Unit- United States importantly, caller to the MDOT. More ed v. Thomas States any Schock admitted he lacked information majority begins from the flawed about the basis of the informant’s assess- “tip” that had such indi- assumption driving. ment car’s Schock testified minimum, if that reliability cia of dispatch that contained no details required corroboration was order any, being about the car’s other than it to find reasonable to allow Officer Schock allegation “erratic” and no that it had vio- However, pre- prior under our traffic lated laws. Schock was not cedent, “tip” must be treated as Harvey informed had witnessed the par- form even a anonymous and cannot vehicle straddle the center lane or cross finding tial basis for lane, fog nor was he informed that in the instant case. Harvey had made his observations contem- Thomas, we held United States poraneously report. po- with his Schock’s FBI tip that a from the was sufficient- indistinguishable from that of sition is thus partial a basis ly rehable to serve as even Thomas, who knew that the the officers suspicion when the informa- for reasonable knew provided tip, FBI had but who relating to specifics” tion was “devoid of tip which the upon none of the facts conjec- “entirely criminal conduct and was result, in the instant tip based.2 As Thomas, conclusory.” tural and anonymous. case must be treated as Morales, at 1189-90. United States majority cites States v. United if succinctly: we articulated the test Robinson, Hensley, States v. dispatch does not contain information v. Hanni Easyriders Freedom F.I.G.H.T. source, tip’s about the “the should dispatch that “the gan proposition anonymous.” 252 F.3d treated as properly considered as knowledge er’s (9th Cir.2001) (holding tip pro- Maj. at 1118. part analysis.” Op. of our police to an officer another de- vided trained point. This is Of course beside “Attempt to Locate” dis- partment via experienced officers are entitled that did not include information patch, activity, they had been told nandez did was to allow the left side of criminal line, once, fog the far- car to cross over the possi- was "a that there was there highway merged left of the after he into the might bility that there be some narcotics” in passing lane. Thomas, 211 F.3d at 1189. the house. Indeed, instant the offi- unlike in the actually allegation cers in Thomas had a clear police frequently another’s inferences to is no doubt that officers rely on one estab- However, FBI, suspicion.3 closely cooperative the work with the lish reasonable Thomas, majority’s reasoning prop- agency yet presence creates a broad of this relationship no to kind of does not and not dispatchers longer osition that have must requirement communicate the basis for the information eliminate the that an officer they conveying objective, are or even their own have an factual to support base basis dispatches finding suspicion.4 on reasonable Noth- of reasonable ing holdings any of these cases majority The to ar- attempts bolster its for such a provide support proposition. by gument relying on Florida v. J.L. for Hensley permit and Robinson an While proposition that because Officer rely dispatcher’s officer to on a instruc- Schock lived a small town and could tions, only dispatcher so if this is “the easily party locate the who called in the suspicion, himself founded or ... had[ ] tip, anonymous. need not be treated as from information a reliable informant who Maj. First, Op. majori- at 1118-1119. supplied adequate him with facts to estab- ty’s suggestion that the Fourth Amend- Robinson, suspicion.” lish founded 536 protections ment are lessened for those (9th Cir.1976). 1298, F.2d In the who live in through sparsely pop- or travel case, the had only instant completely ulated areas is untenable. allegation driving, bare not “ar- protections “The search and seizure supporting! ticulable facts ] reasonable vary Fourth Amendment [do from person wanted has com- place place to and from time to time.]” 221, Hensley, mitted offense.” 469 U.S. States, 815, 806, Whren v. United 517 U.S. (1985). 232, 675, 105 S.Ct. 83 L.Ed.2d 604 1769, (1996). 116 S.Ct. 135 L.Ed.2d 89 Second, majority’s reasoning

The nothing would allow in the J.L. sug- decision dispatcher to instruct an officer to pick up gests exception such a broad to general its time, any anyone, any holding without stated “anonymous that an call ... [that] basis, if the dispatcher providefs] even does not have predictive no information and legally asking sufficient reason for her to therefore police [leaves] the without means do exactly so. This is the kind of behavior to test the knowledge informant’s or credi- which the Fourth Amendment bility” provide was created does not in- “moderate guard against exactly reliability” the behavior dicia of required for reasonable J.L., respond by 266, to which Morales and Thomas suspicion. Florida v. 529 U.S. 271, imposing stringent 1375, a more requirement. 120 S.Ct. 146 L.Ed.2d 254 (2000). Thomas and instruct that point Morales the ba- is not whether po- sis for law potentially enforcement inferences must be lice can find the informant and communicated, explicitly regardless him interrogate to determine if he is tell- truth, whether one lives a small or a ing point town is that officers huge metropolis, regardless information, of wheth- sufficiently specific must have conduct, er a police previously relating officer has worked they to criminal can agency providing tip. There to independently tip. use corroborate the See, Warden, 560, e.g., Whiteley 3. 401 U.S. In an era in which law enforcement and 1031, (1971) L.Ed.2d 306 government agencies being actively are other (officers upon called to execute a search war- encouraged cooperatively to work with one probable rant entitled to assume that cause life, aspects sweep- another in all of civic illegal has been established but "an otherwise majority’s reasoning ramifications of the challenge by arrest cannot be insulated from respect apparent. in this should be instigating rely the decision of the officer to arrest.”). on fellow officers to make the identity legitimately equated is cannot with an informant’s The fact irrele- eventually completely allegation activity.5 of criminal More im- ascertained detail, beyond question portantly, any It is established because it lacked vant. in- a fourth amendment allegation driving” that the focus of of “erratic the in- analysis subjective is “whether the officer’s trusion stant case was too and too justified inception.” at its Ter- action was vague provide type meaningful Ohio, 88 S.Ct. information. ry v. predictive See id. What re- added). (1968) (emphasis L.Ed.2d 889 identifying mains is the information relied law en- would allow majority’s position car, by locating informa- this requirement forcement to evade tion value “tendency whose was its unconstitutional searches “cleaning up” identify a person.” determinate investiga- through subsequent and seizures majority appears give tip to tion. unwarranted credence because it came in previously have held that order We government agency (regardless from a of anonymous tip for an to serve as basis not, fact, in the fact that Officer Schock did it: “must include suspicion, for reasonable employee know that it came from an of the simply range ‘a of details’ ... cannot [that] However, agency). we have held that “an easily observed facts and condi describe simply officer cannot defer to [another] tions, predictive infor [provide but must agency’s suspicion establishing without that ... corroborated inde is] mation facts on which that suspicion articulable Morales, police pendent observations.” Thomas, 1189; 211 at was based.” F.3d addition, In 252 F.3d at 1076. Morales, at n. see also 1076 5. in requires tip that a be “reliable unquestioning instant reli- such just in illegality, its assertion of not its tip particularly troubling ance on the is tendency identify per to a determinate because is not a law enforcement J.L., 271, 120 at 1375. son.” 529 U.S. S.Ct. agency, employees nor do its have the “experience specialized training and to case, none

In the instant of details from and make inferences deductions grounds for provided tip provided the cumulative information available about illegal conduct had occurred. believing ‘might them that well elude an un- to they provide predictive Nor did sufficient ” Arvizu, 273, person.’ trained 534 U.S. information from which Officer Schock 744(quoting 122 United States Cor- S.Ct. reliability. tip’s could have tested the See tez, 411, 418, 449 U.S. 101 S.Ct. only illegali- “assertion of possible id. (1981)). Harvey only L.Ed.2d 621 testified ty” contained in the MDOT was the training resur- experience that he had allegation driving.” of “erratic As a debris, matter, clearing roads and not iden- vague totally facing such a threshold fact that driving” tifying “erratic inebriated drivers.6 The unspecific allegation of Harvey's training expertise question panel lack of 5. There is no that this would persistent inconsistencies in evident from prohibited hold unconstitutional statute testimony. example, For in his initial driving," irrespective simply "erratic young signed report wrote that he saw "a he sought public safety that it to ad- interests looking Hispanic male ... some sort of [with] prohibition vance. Such a would be void for looking package hand ... white in his left vagueness give not fair no- because it would staring straight ahead ... like he was in a prohibited. tice to drivers as to the conduct earrings and his He had several hair trance. Columbia, City See Bouie of straight very shiny back. and combed 350-51, (1964). L.Ed.2d 894 Also, very high car.” he sit didn’t However, majority's position I fail to see how the differs suppression when asked person hearing what he was able to see such a law. from closely” allegation driving,” with of “erratic in- “worked presumption not render this potentially MDOT does formation that indicated the reliability permissible. police However, No doubt possibility illegal activity. be- closely many state officers work cause minor movement within one’s own this, contexts, many in and agencies, but lane of traffic close to the itself, give agen- those simply does steering simply wheel are not activities carte blanche to direct the activities of cies that, own, on their indicate criminal activi- enforcement, give police law nor does it ty, simply it is suggest untenable permission stop people officers without they “corroborated” the erratic al- establishing the facts neces- independently legation.

sary support precisely Almost this issue was ad- opinion dressed our recent Nei- III. Officer Schock’s Observations Colin, States v. in which we held unconsti- Tip ther Nor Pro- Corroborated stop performed tutional a under almost Independent vided Reasonable Sus- identical circumstances. 314 F.3d Stop picion (9th Cir.2002). Colin, the officer ob- tip Even if the can instant case seconds, served the vehicle for 35-45 dur- partial form basis Officer Schock’s ing which time the vehicle: suspicion prior reasonable under our —and drove within speed proper- limit and required caselaw it does not—Schock was ly signals activated his turn before mak- independently to corroborate the facts lane ing changes. thought [The officer] upon tip which the was based. Officer was ‘possibly”driving [the driver] under observations, however, own Schock’s nei- the influence because the car’s wheels tip pro- ther corroborated the nor touched the fog right line on the side of an independent vided basis for reasonable right then, lane for 10 seconds and vehicle, suspicion to as our recent later, about 5-10 second touched the cases make clear. yellow line of the far left of the left lane majority concludes that Officer for another 10 seconds.7 tip by matching Schock “corroborated” the coming 314 F.3d at 445. In to the conclu- state, plate the license model and color of sion that such conduct was not sufficient to car, its of direction travel on the inter- “pronounced weaving” jus- constitute or to state, and, allegedly, driving.” its “erratic tify a stop, the Colin court approvingly Maj. if Op. 1120. Even Officer Schock Circuit, quoted the 10th which noted that correctly presence par- confirmed the of a “if perfect the failure to follow a vector ticular highway black Monte Carlo on a in highway keep eyes down the or one’s on Montana, however, give this does not rise the road were sufficient suspect reasons to to At reasonable the risk of person driving of impaired, while a sub- being repetitive, reasonable re- portion stantial public be would quires that a in “reliable its asser- subject day each to an of their just tion of invasion illegality, tendency its identify J.L., privacy.” Lyons, United 7 person.” determinate States F.3d 529 (10th Cir.1993), U.S. at quoted 120 S.Ct. 1375. Officer required Schock was to corroborate the F.3d at 446. driving "just quick testimony why he stated that he made a 7. The officer's as to Colin he glance through thought driving sign out impairment the window” and that this was a only thing got "the [he] noticed was that identical to that of Officer Schock’s. [he] almost impression person very was not tall.” See 314 F.3d at 445 n. 4. coming wrong fol- even from the neighborhood’ instant minutes, give do not to legally than three rise sufficient ‘rea the car for less

lowed ”); suspicion.’ sonable the vehicle States during which time he observed 592, 595-96(9th Rodriguez, 976 F.2d lane, Cir. goes “drifting within whereas 1992) (observation of preoccupied driver in center line and fog from the line to the vehicle, particular type swerving within the vehicle back.” He did not witness traffic, highway lane with reputa and, contrary to the violate traffic laws tion smuggling, for alien did not support Colin, specifically officers testified suspicion); United States v. per- he trial that he believed the behavior Hernandez-Alvarado, issuing a sonally observed did not warrant (9th Cir.1989) (large reduction in speed of Colin, these citation. Under observations vehicle, demeanor,” li driver’s “nervous a basis for reasonable sus- provide do not plate cense from a dealership brackets as picion. drug trafficking, sociated and driver’s is clear precedent prior Our Colin residence in neighborhood investiga under common, non-illegal motorist behavior tion activity, support for narcotics did not give suspicion.8 does not rise to reasonable a finding of suspicion); see also people par- are not such most [BJecause 157, 160, Lafferty, State v. 291 Mont. agons skill and virtue that (1998) (dispatcher’s report P.2d 363 they consistently adhere to each one of crossing officer’s observation of defendant complex relating opera- laws fog particu line were insufficient for vehicles, are many tion of motor there larized that defendant was driv targeted opportunities vehicles influence). previous under the Our opportunities ... But are not lim- those recognize cases that even considered alto reasonable, Suspicions must be itless. totality gether, as the of circumstances they if not they and cannot be are suffi- test requires, simply certain conduct is not to an officer to believe that cient cause justify stop. sufficient to a traffic illegal. something the driver has done Sitting steering close to the wheel Mariscal, 1127, v. 285 F.3d United States swerving once within one’s lane of traffic 1130(9th Cir.2002) (holding that officer actions, together sepa- are not either or suspicion lacked reasonable to vehicle rately, conjunction vague or even in with a that was under surveillance on the basis of that rise to tip, give and unsubstantiated a turn making right signaling). its without activities, even reasonable Both circuit that move- repeatedly This has held conjunction, likely at as to are least be ment ones own lane or other rela- within (for subject explanations to innocent exam- tively benign driving activity is not a suffi- could ple, inexperienced, driver ground cient on which to base reasonable short, upon new road particular suspicion, coupled even when with other three) or all traveling, which she or he is suspicious circumstances. See United they activity. as are to indicate criminal Jimenez-Medina, 173 F.3d States fact, testified that Cir.1999) (“The (9th law of this circuit perpendi- surface contained both highway presence teaches that the of such facts as dips by heavy as well ruts caused cular traffic, preoccupation, speed, driver slow move- truck both of which are factors that traffic, may weaving.9 one’s own lane of have caused Officer ment within Contrary majority's suggestion, Maj. testified that he him- 9. While Officer Schock Op. nothing any weaving his car at in these cases limits self did not notice ruts, necessarily application involving smug- because of does not their to cases this lighter gling. mean that another driver with a car or that suspicion it would not be Fernandez-Cas- Schock also stated to make a minor person Colin, unreasonable for impaired. tillo was 314 F.3d at 446. upon witnessing a swerve within her lane short, both the and the officer’s her from at police approaching behind observations, viewing them from Officer legal well limit. speeds over the While at the time he made perspective Schock’s necessarily conduct that not indicative of is stop, objectively are devoid of circum- activity may, criminal certain “A ... criminality. may evidence of hunch stances, still be a consideration the rea- trigger investigation an facts uncovers calculus, innocuous con- sonable suspicion, proba- establish reasonable justify investigatory duct alone does not cause, grounds ble or even for a conviction. in- presence unless the of additional hunch, however, A is not a substitute for formation or circumstances tend to indi- necessary specific, articulable facts re- activity cate criminal has occurred or is quired justify a Fourth in- Amendment place. about to take United States Thomas, 1186; trusion.” F.3d at see Montero-Camargo, 208 F.3d Montero-Camargo, also 208 F.3d at 1129. (9th Cir.2000) (en banc). No such addi- majority essentially allowing is tional information or circumstances were hunch on a vague, anonymous, based case. present instant allegation uncorroborated of erratic driv- majority asserts that because Offi support for an officer, cer experienced Schock is was investigatory I stop. therefore dissent. reasonable for him to associate steering close to the wheel with intoxicated

driving. Maj. Op. Exactly at 1120. this

argument rejected in Colin however.

Colin, n. 4. 314 F.3d 445 While “officers

are ... encouraged upon to draw their

experience in assessing ‘totality ” Colin, circumstances,’ the deference we accord to officer experi FLORES; F., minor, Alana F. ence “unbridled.” Hernandez-Alva through guardian litem; J.D., ad a mi rado, 891 F.2d at facts sup “[The nor, by guardian through ad li porting ... suspicion] must tem; C.L., minor, by through subjective impressions more than the mere guardian litem; M.L., minor, by ad particular of a deduc officer. Permissible through guardian litem; V.P., ad or rational tions inferences must be minor, by through guardian ad grounded objective capable facts and be litem; P.P., Plaintiffs-Appellees, explanation.” rational Id. In the instant opinion Officer Schock’s steering sign near to the is a wheel HILL MORGAN UNIFIED SCHOOL entirely intoxication was unsupported by DISTRICT; Carolyn McKennan, Su objective Moreover, fact. the fact that Davis, Principal; perintendent; Bob sobriety Officer Schock did not conduct a Schizzano, Superin Delia Assistant test or ask field Fernandez-Castillo if he tendent; Bartschi, Maxine drinking had been or Assistant using drugs is indica Principal; Gaston; Larry Carr, tive that actually Schock did not Rick harbor familiarity roadway less with the would not have been affected these conditions.

Case Details

Case Name: United States v. Rigoberto Fernandez-Castillo

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 8, 2003

Citation: 324 F.3d 1114

Docket Number: 01-30398

Court Abbreviation: 9th Cir.