*2 co, two of which were located in an area TRASK, Before MERRILL and Circuit high to have a incidence of narcotics known TAKASUGI,* Judges, Judge. District stop traffic. Each was of short duration. in manner which the car was driven PER CURIAM: indicated a desire to avoid surveillance. U- court, sitting jury The district without occasions, turns were executed on three possession with in- convicted Chatman of on several occasions a block cоmpletely tent to distribute heroin in violation of Title squared. Appellant companions Code, 841(a)(1) §§ frequently out the looked rear window. Ul- 841(b)(1)(A). We affirm. timately surveillance was lost when the car argues Chatman the evidence re- darted across two lanes of traffic. With at trial was obtained as the result of this agent ceived additional information an Drug an unlawful search and seizure. We find Enforcement Agency directed that * Honorable Takasugi, Robert Judge M. United States District for the Central District of Cali fornia, sitting by designation. question on his arrival interrogated ap whether, peal is at the time Seattle. empty directed to pockets, there was Airport Francisco left the San Chatman probable cause to suppose that he was in approxi- flight Airlines a Western
on
possession of
subject
narcotics and
to ar
m. and аrrived
Seattle
mately 2:20 a.
rest. We conclude that
there was. The
his arrival he
4:15 a. m. On
approximately
*3
agent, at the time of entry into the inter
interrogation by an
for
approached
room,
view
probable
cause to believe
Agency
Enforcement
agent
Drug
the
to San Francisco had been
by two uniformed
accompanied
who was
made for the
of clandestinely en
then came
Additional facts
police officers.
gaging
illegal
business of some kind and
It was learned
agent’s attention.
to the
appellant
had something in
his
which he wished to conceal. We also con
Appellant carried
traveling under aliases.
clude that
the most reasonable probability
extremely
and seemed
no identification
all
under
the circumstances was that
the
stopped
interrogation.
nervous when
object which he was attempting to conceal
directed to an interview
Appellant was then
goods
contraband or
possession
or
repeatedly attempted to
room. En route he
concealment of which would constitute a
pocket.
trousers
In the
hide a
in his
Ohio,
crime. See Beck v.
89, 91,
379 U.S.
85
appellant was ordered to
interview room
223,
S.Ct.
13
(1964);
L.Ed.2d 142
produce
He did not
empty
pockets.
Canada,
States v.
1374,
527 F.2d
1379-80
causing
bulge.
He was directed
article
(9th Cir.),
denied,
895,96
cert.
423 U.S.
S.Ct.
it and refused to do so. He was
produce
196, 46
(1975).
L.Ed.2d 128
his trousers. He
then directed to remove
searched,
so,
and nar-
did
the trousers
When
entered the inter
bulging pock-
discovered in the
cotics were
view
agent
room the
then had probable
is this search that
chal-
et.
place
cause to
him under arrest.
“Once
lenges.
probable
there is
cause for аn arrest with
out a warrant
it is immaterial
that a search
Appellant contends
act of
(without
warrant)
a
precedes
to an interview
directing
proceed
him to
arrest.”
States,
Busby v. United
proba
328,
an arrest and that
296 F.2d
room constituted
332
(9th Cir.),
denied,
876,
cert.
ble cause should have existed at that
time.
369 U.S.
82 S.Ct.
1147,
disagree.
suspicion
(1961).
Founded
based on
“We likewise see the defendant’s person, as was conducted asking step Fernan’s Salter to into the here, clearly within proper scope room, convenient baggage more The same [*] [*] interrogation [*] » is made in United States v. than an open platform such a search incident 62 United States v. (9th Cir. 1972). Rogers, to a valid arrest. 453 F.2d 861- Oates, (2d 560 F.2d Cir. where The search of substantially Chatman was quoted. contemporaneous See United States with the аrrest Salter based on Scheiblauer, 299-300 cause. We conclude that the dis- 1973). trict court properly appellant’s denied mo- from than cause for arrest. an obtained Such evidence suppress
tion to
investigatory “stop”
clearly
within the
that search.
language governing
Fourth Amendment
affirmed.
Judgment
“seizures.” Id. at 16. The Court balanced
government’s
preven-
interest in crime
dissenting:
Judge,
TAKASUGI, District
against
constitutionally protеcted
respectfully dissent.
I
private
interests of the
citizen and found
relat-
issues
difficult
This case addresses
that,
justify the
“stop,”
intrusion of a
activity rang-
police
stages
various
ing to
“point
officer must be able to
through final arrest.
investigation
ing from
which,
specific
articulable facts
taken
of the distinc-
required
understanding is
An
together with rational
inferences from
arrest and
cause for
tions between
facts, reasonably
those
warrant that intru-
investigato-
an
justifying
20-21,
sion.” Id. at
S.Ct.
1880.1
ry stop.
Upon making
investigatory stop upon
*4
to
for this court
Although it is difficult
suspicion,
may,
founded
an officer
under
officers who
police
role of
itself in the
circumstances,2
certain
“frisk" the suspects,
and take
to make decisions
required
are
being
but
than
upon
based
less
quiet
reflec
the benefit
without
action
cause, the frisk must
in scope
be limited
to
requires judi
tion,
Amendmеnt
the Fourth
clothing pat-down
weapons.
an outer
for
police activity
when
com
intervention
cial
Thus, Terry
a
frisk is “limited to that which
people
the
to be se
right
the
promises
necessary
is
discovery weapons
for the
searches and sei
unreasonable
cure from
might
which
be used to harm the officer or
“judicial
Terry v. Ohio condemns
zures.
nearby,
may realistically
others
and
be
protean
the
vari
cоmprehend
can
opinion[s]
something
characterized as
less than a ‘full’
1, 15,
the
encounter.” 392 U.S.
ety
search,
street
though
even
it remains a serious
1868, 1876,
(1967).
569
1975).
is a
three drove to
There
several
F.2d
residences in
however,
mаde,
be-
Francisco,
distinction to
crucial
San
stopping briefly and then
developing
naturally
probable cause
tween
Two of
leaving.
the residences were locat-
during
Terry questioning
the course of
high-drug
ed in
areas.
being bootstrapped into
probable cause
As appellant
city,
traveled about the
search
by
discovered in a
evidence
existence
car was seen to make sеveral U-turns and
Terry.
permitted by
exceeding the bounds
on
circle blocks
Appellant
occasion.
Supreme Court in
stated
As
Sibron
male
were seen to look out the
40, 63,
York, 392
v. New
U.S.
rear window as they traveled.
(1967):
1902,
I. II.
FACTS. *5 review the factual Although de novo of ANALYSIS uncommon, decisions is for trial court basis of founded involving a determination cases From the foregoing, the majority con- suspicion probable frequently and/or cause officer, cludes that the arresting at the time complete review of the fairly involve room, of into entry the interview prob- had See, v. Hom g., e. United States facts. able cause to believe that the trip to San F.2d, 1351-52; burg, supra, n. 546 at Francisco had been made for thе purpose of Canada, v. 527 F.2d States in engaging illegal business some kind. 1975); (9th majority and the Cir. 1376-77 This by conclusion is reached the majority case. opinion in the instant The salient analysis without detailed situation as in this case are: facts it evolved from the appellant’s time of the Appellant bought round-trip 1. airline first encounter with the upon re- which ticket from Seattle San Francisco turning San Francisco to Seattle. layover for a in Francis- provided short San At the time appellant’s deplaning in made co. Several other reservations were Seattle, there did probable not exist cause pur- upon. not acted ticket was but arrest. This is conceded currency. with a roll of chased cash from Government.5 There is also no indication in alone no traveled and with majority opinion that cause luggage. time, existed at trial court met in Appellant 2. San Francisco found, law, its in conclusions of that: restaurant, aby They man. drove to a time Agent “At the drink, Snyder first contact- eat or made they where did not but upon ed defendant phone. the latter’s phone pay They calls from a debarka- joined by Seattle, a woman who left with them. the airport Agent in Sny- merely argues A extent of discussion of a warrantless The Government the de- .the purchase search based cause to arrest fendant’s ticket and his activi- appears unnecessary light gave in the of the facts ties in San rise Francisco to a “founded suspicion [upon approach appellant before this court. which] ” Respondent’s to him. talk . . Brief (emphasis added). at 14
570 they
der had reason to believe that defendant had reasonably trustworthy infor- had made a Francisco in San order mation were sufficient pru- to warrant a purchase narcotics. At time dent man believing petitioner that the Agent Snyder grounds to detain de- had committed or was committing an of- questioning.” (Emphasis fendant fense.’ Selby, United States v. 407 F.2d added) (9th 242-243 1969), Cir. quoting Beck Ohio, 89, 91, v. 379 U.S. 13 The fact that founded and not (1964).” 142 L.Ed.2d Id. probable cause existed at that time is im- portant First, for two reasons. it means This pointed court also out in Moore that: any search made under those circum- “Probable cause lacking if the circum- stances would have to be limited to one for stances relied on are ‘susceptible to a weapons. Second, it means that an arrest variety of credible interpretations not permissible or full search is not without necessarily compatible with nefarious ac- which, together additional facts taken tivities.’ Kandlis, United States v. facts, рreviously ascertained establish (9th F.2d 1970), Cir. quoting probable cause. The additional facts which Selby, supra, United States v. 407 F.2d at agents’ came to the attention are: 243.” Id. (1) That The appellant’s actions the instant case aliases; traveling under are certainly susceptible to innocent inter- (2) nervous; Appellant appeared pretations. (3) Appellant tried to hide a in the point The exact at which оf his trousers as he was tak- arose is also agents. question
en to the office of the called into by the majority opinion. At one it states Do these facts create cause? In that the arrest did not take when the Moore, the case of United was met the agents in Seattle. it was proba- held that is then asserted that time ble cause did not exist where the defendant suspicion based on the facts then “[f]ounded stоpped airport at an and was found to agent justified known to the the interrogat- (he under an alias ing and it was improper, not in absence of identification which the officers knew to be *6 protest or circumstances, coercive to ar- false), after which he became extremely range that it take free public agitated, “sweating, trembling, eyes [with] view with its attendant embarrassment. ‘glassy,’ dilated and speech slurred.” [and] This statement indi- [Citation omitted].” Id. at 1362-63. In Moore the defendant cates that at the time agents the asked the luggage was that had mask- appellant ing tape accompany to keyhole, over the and he tried to them they to the office airport leave the in such had haste and confu- sion that he and were dropped merely trying carry his still refundable Terry type ticket out stop questioning and did nоt when the customs in a more se- agents called to him they place. that had it. Id. at cluded agents The were aware at Although appear these factors point to be that appellant that the using was an incriminating least as as in those the alias appeared nervous, and that he but case, instant “[appel- this court held that probable cause did not exist. The majority lant's conduct was no suspiсious” more than additionally states, however, that “the probable and that cause did not exist. Id. agent at the time entry into the inter- probable The test for cause set forth in room, view probable cause to believe Moore is: that to San Francisco had been
“. ‘whether at that moment the made for the purpose of clandestinely en- facts and circumstances within . gaging illegal in business of some kind. agents’] knоwledge and of which added).6 .” (Emphases [the e., probable probable emerged point, If cause at this i. cause to arrest what for is— room, upon entry ques- crime'i While at one into the interview majority flatly To saying require that it otherwise appears might to be majority encourage a room, to the interview during the walk was beclouding further of the distinctions be trying appellant apparently was when degrees tween various to permissible something pocket, his to conceal police intrusions and increase the possibility This is came into existence. probable that evidence disclosed a search would trial court’s conclusion with the inconsistent part justification considered as because, cause existed inter probable subsequent Cipres arrest.8 should be fol alia, appellant failed tо remove ob- lowed. majority whereas the pocket,7 from his ject probable cause existed finds that therefore the
reaching the room and
III.
by directing
appellant
conducted
search
pockets
proper.
his
empty
CONCLUSION
States,
Cipres
This court
This case
involving
is not one
mere tech-
denied,
cert.
F.2d 95
nical
about the
details
order in which steps
(1966)
to arrest with arrest contemporaneous
substantially danger of any if there a warrant
out evidence loss of destruction or
imminent States, supra), no such v. United
(Cipres exist here. was shown to
danger agents no- that the
Additionally, fact ar- he was under
tified of the heroin discovery
rest after there not feel they did
may indicate that time. him until grounds to arrest justi- could not discovеry of heroin
The sup- arrest. To either the search or the
fy conclusions, probable majority’s
port the com- have because of
cause need existed activi- appellant’s of a series of the
bination
ties, interpreta- possible innocent all knew that appears agents that the
tions. and, therefore, cause was doubtful they until not arrest
did incriminating evi-
forcibly obtained the surely have re- The would
dence. object in his if the
leased turned to be innocuous.
pocket had out therefore, inviting police majority, which to make for evidence
searches exists no
subsequent arrests when there suspicion. Such more than (argued), John H. Paer Richard Ran- S. clearly the Fourth Amend- activity violates ter, Society Leong, Legal Linda-Mei Aid ment. Hawaii, Honolulu, Hawaii, plaintiff-ap- pellant.
I would reverse. Goodsill,
David J. Reber An- (argued), of Quinn, Honolulu, Hawaii, derson & for de- fendant-appellee. GERMAIN,
Chuck ST. Plaintiff-Appellant, ELY, Before HUFSTEDLER and WRIGHT, Judges. Circuit HAWAII, Defendant-Appellee. BANK OF HUFSTEDLER, Judge: Circuit
No. 76-2007. thorny question presented on this Appeals, United States Court whether appeal Lending the Truth in Act *8 Ninth Circuit. (“TILA”), seq., 15 U.S.C. et re- §§ Dec. quires disclosure an acceleration clause in installment a retail contract. The district required court held disclosure was not (D.Hawaii (St. Hawaii Germain Bank of