United States v. Robert Portsche Ward

concerning privately fendant some feder- fugitives. charges al No federal outstanding against defendant. The (argued), Seattle, James L. Yonasch knew defendant had been defendant-appellant. Wash., for the name “Gerald Washburn”. driving in Atty. While an unmarked car Schwartz, about Irwin Asst. U. S. defendant in a car saw alone and (argued), Pitkin, Atty., U. Jer- Stan S. signalled him, by siren, over, pull Olson, Atty., Seattle, S. ald E. Asst. U. agents approached which he did. The Wash., plaintiff-appelleе. car, themselves, his identified stated TRASK, and Cir- Before CHAMBERS wanted to interview about Judges, *, cuit and District SCHNACKE fugitives identify him to and asked Judge. Defendant asked if he was un- himself. der' and was told was not. SCHNACKE, Judge: produced Defendant a driver’s District license the name of was told Washburn and knowing Defendant convicted of agent person. an nowas such De- possession of a false Selective Service agent group fendant then handed the registration App. card, 50 U.S.C. § though agent cards, prove as 462(b)(5). wrong. stipula- The evidence and defendant’s mistake, top This was a because the support fully tions in the trial court registration card was a Selective Service findings defendant court’s written card also issued the name of Wash- identity manufactured false placed burn. was then under Defendant name, himself under an assumed that, for the here arrest asserted. part scheme, he obtained investigating stopped сompleted falsely de- officers made him, registration fendant to seek information which he certificate possession al- to arrest him. Officers at the time of his ingenuity their lowed exercise arrest. contention that the evidence training However, light judgment, their view we take the case deciding when, where, unnecessary experience, in makes it to consider whether how, application. Dionisio and dra- Mara have and evеn with what flair question ex- a witness matics judgment af- conviction is ' entirely pect to It be reluctant. firmed. reasonable, certainly no invasion of right defendants, to decide of TRASK, Judge (dissenting): Circuit question found him when respectfully my opinion I dissent. (un- alone, than his residence rather at unreasonably the F.B.I. stopping appellant’s acted in being investigat- der the of those view the car for attorney ed) or at the office of the interrogating stop оf appellant’s him. The violated he worked. whom rights Fourth Amendment against unreasonable searches and sei- vigorously complains most Defendant infringed unreasonably zures and on signalled stop he the fact that of by right pellant’s a motorist to free be of car. cer- the siren the FBI This arbitrary disruption of unrestrict- tainly law en- led him to believe that Terry Ohio, ed lawful travel. 392 U. him, to see forcement officers wanted S. 20 L.Ed.2d 889 might him to won- well have caused (1968). if der tо be arrested. But when he were arrest, asked if he was under he was he question appel- can no There be not, thereafter, told that he suppress motion lant’s was directed at produced false identification docu- government all evidence obtained rulings implicit in the of It is ments. stop as a result of the —identification judge found, the trial evi- documents, handwriting fingerprints, conflicting sup- adequately dence but exemplars testimony apрel- of what porting findings, up to that during lant said and did search, time there no no ignores majority opinion legality of compulsion, voluntary but rather a determining issue display of the counterfeit identification. argument primary lant’s is without mer- it—that suppressed the evidence should have been plain by Miranda, supra, It is at made warning because a Miranda pp. 477-478, p. 1629, S.Ct. 86 given enough. was not soon I am also designed its limitations not unpersuaded by appellant’s interpreta- “hamper po- of the traditional function warning tion of Miranda and the re- investigating crime”. lice officers quirement under the of circumstances during evidence here obtained bypass this case. This court should not vestigation properly received. See legality a consideration of of the Lamb v. 414 250 stop, however, merely because 1969). (9th Cir. vigor. has raised that issue with less If illegal, then the evidence person using, The name is like his obtained as of a result should fingerprints, publicly or voice suppressed.1 have been displayed Compelling the characteristic. giving samples handwriting a vehicle can be an unrea voice meaning sonable seizure within the violative the Fourth Fifth Dionisio, Fourth Amendment it in because Amendments. United States v. expecta trudes a driver’s 93 reasonable S.Ct. 35 L.Ed.2d 67 right proceed lawfully (1973); Mara, tion United States 410 along highways streets S.Ct. Suppress give 1. The Motion to Memo as the failure and the as well Supplementary proper warnings. randum and He claimed Memorandum Miranda clearly protection of Points and show Amendment Authorities Fourth appellant’s upon illegality reliance and of the Fifth Amendment. them.) were also aware ex authorities molestation without Ohio, there were records birth Seat- cept Beck for cause. who 94-95, tle of a Gerald years may as a had died child severаl be less And that April 4, States suspicion. United founded than a (9th Cir., Mallides, April 4, 1972, Prior agents pull mo federal When surveilled occasions Ward different siren off road use torist to inter- his residence and wanted though the even a seizure there has been regarding fugitive, view him federal agents only routine to make a intended Ayres', who had been indicted William question investigation. Jury, Grand every case whether raised in presence Fourth under the was reasonable seizure acquaintances. friends or determining rea Amendment. agents Woodlieg (7) 4, 1972, April On stop, the courts such a sonableness of driving Capitol around and Clark were weigh police action need agents other Hill with two who were against intrusion and the inconvenience agents by new to went Seattle. The Ohio, Terry entails. which appellant appellant's residence where Leal, supra; Volkswagen. spotted The was in his denied, (9th Cir.), cert. 385 889, agеnts co-op appellant followed 93 S.Ct. him after he left and then followed catching co-op, up him a with nearby sign. mind, general principles at a intersection in these With agents on the siren The then turned of is cru- of the facts this case a review Appellant assessing in car. their unmarked of the reasonableness cial in challenged them and stop. turned around look at at the The evidence the suppression go they hearing motioned him to around that: established Appellant and turn- corner agents (1) where F.B.I. knew pulled over ed corner num- lant lived had known park- road into the side jnonths prior April 4, 1972. ber stopped place. agents ing in agents (2) knew car appellant’s Volkswa- behind the street model, color, make, year and license gen curb. but about five feet number. agents (8) exited the All four F.B.I. (3) ap- Agent presumably appellant. knew approached car Woodlieg pellant typist for a had worked as a and the that he testified practicing lawyer, themselves, but no effort was other identified appellant that appellant made to contact the wanted formed that through attorney. fugitives office or interview him about federal identify him- appellant to and asked (4) knew that knowing self, already using Clayton the name Gerald the name Washburn num- and had known for a Washburn ‍​‌​‌‌‌‌‌​​​‌​‌​​​​​‌​‌‌‌​‌​‌‌​​​​​‌​‌‌​​​‌‌​​‌​​‍name had a driver’s license ber months. acknowl- Appellant produced the Washburn. edges it is not a crime itself to Woodlieg agent driver’s license and identity. assume a false did that Washburn informed not be that he could (5) not exist and knew response to Appellant, in Washington in Washburn. license had a driver’s shrugged this, and then his shoulders the name of Gerald pa- of identification a stack copy handed driver’s li- and had seen say, Woodlieg pers if to “What state’s records cense Washburn, mean, you I’m of course April 4, (Washington do driver’s top Woodlieg Agent saw picture see.” on licenses have the driver’s tailing identification which for an pulling his interview car and Registration stop by Certificate him over to a siren name of Washburn. street. Second, the not made local seeing Upon the Selective Service guardians enforcement law officers as Woodlieg card, appellant that advised peace, he was under advised him of duty specific to enforce federal stat rights proceeded frisk him. only. Frye utes See v. United Woodlieg (10) Agent testified that (9th Cir.), cert. de prior to the Selective Service nied, 11 L. nothing card, to ar- Ed.2d 76 rest or detain Ward and facts Third, important all, and most suspect which to Agent law violation. something made because of Woodlieg also testified done, suspected or was did not know or having Rather, done. was made pеllant had the false Selective Service questioning for the agents justified card. The 2 Investigative person. about a third stops ground appellant’s vehicle on the person’s suspicious based on a ac carrying out “tradi- their constitutionally permissible. tivities are investigatory function,” tional ex- Terry Ohio, plaining that to interview wanted (1968). 20 stops Vehicular appellant in secret. based on the driver's furtive actions may all due deference unlawful, however, police With to the federal if the agents’ grounds duties to make criminal investi- officers did not have reasonable gations, justify making I am stop. unable the man- for United States v. they ner approaching ap- Majourau, (9th chose for Cir., 474 F.2d 766 pellant. First, exigent 1973); Davis, there no were United States justify (9th circumstances to 1972); as 458 Cir. police when suspi- Nicholas, (8th have a founded 1971). 448 F.2d 622 Cir. activity cion that fresh criminal Terry is afoot. of appellаnt The “investigative was not a emergency Here there was no stop,” situation.- since had nothing There was no agents’ need for suspi immediate action. done direct agents not fearful at cion him.3 would leave town. The was not di- Considering differences, these I con- particular crime, rected at a but was clude the must be dis- part general investigation of that had tinguished general “investiga- from the agents been started months before. The stoр” approved Terry tive and in de- sought never an interview with Porter, cisions this court. Wilson pellant place at his house or of business (9th 1966). 361 F.2d stop 415 Cir. although arranged. that could have been unreasonably in this case interfered Instead appellant’s right chose to contact as a motorist “No, arresting “Here, agents knowledge 2. I had no intentions of Mr. had no of a my stopping having Ward. The sole crime been committed and interview, anything him was for аn did not observe which would fugitive suspect all In .... relation to lead them to a crime had been concerning by Ward, seeing prior . matters . . William committed Ayres.” (Testimony Agent Charles Government Service card.” Woodlieg, R.T. at Brief at 14-15. “ charge Terry . . . had no [T]he “The in this not a case was suspect stop” “investigative law violation since the did the Selective Service crime had been or was ” card; being by appellant, . . Brief at Government committed Ward.” Brief at 21. Government

167 judgment, appellant’s my The Su- travel without interference. Brinegar v. preme conviction should be reversed. has noted States, S.Ct. United U.S. MERRILL, CHAMBERS, Before (1949): DUNIWAY, 93 L.Ed. 1879 KOELSCH, BROWNING, WRIGHT, HUFSTEDLER, ELY, given good “The who has citizen GOODWIN, CHOY, TRASK, and WAL- believing engaged in Judges. LACE, Circuit activity is enti- [unlawful] way BANC EN proceed without HEARING on his ON tled to S.Ct. terference.” Judge: TRASK, Circuit also Carroll United ‍​‌​‌‌‌‌‌​​​‌​‌​​​​​‌​‌‌‌​‌​‌‌​​​​​‌​‌‌​​​‌‌​​‌​​‍at 1311. See appeals from Portsche Ward Robert States, knowing possession his conviction L.Ed. 543 registration a falsе Selective 462(b)(5). The card, App. § U.S.C. right proceed interfer- This without upon ob- evidence based conviction was Clay ence was violated from the tained (5th 1956), 239 F.2d 196 Cir. request after a vehicular gambler off a known forced when pretrial appellant’s identification. Agents. Revenue As the road suppress de- motion to the evidence was case, stopped the vehi- in this reverse We nied district court. although question cle to the driver ground stop of Ward’s that the reason believe that violated the automobile being knew committed. right against unrea- Fourth Amendment and where where lived and that search and seizure sonable kept him under worked and suppression evi- required violation days prior surveillance for a number of the unlaw- dence obtained as a result to the time forced his automobile ful public highway. off the The court con- presented suppres- cluded evidеnce a The evidence seized as result sup- hearing stop FBI indicated that the the should sion unlawful have regard- pressed. appellant wished to interview Ayres, ing fugitive, a federal William agents to The mere desire of F.B.I. fed- a who had been indicted indi- Jury. April 4, talk to an individual about another eral Prior Grand agents forcibly stop, for the date the road insufficient reason vidual is occasions, high- on different surveilled Ward stopping vehicle on the а citizen’s waiting opportunity to interview an way against the embar- when measured presence and of friends Ward outside indignity rassment and to a incident acquaintances. stop city on of a a street means siren that: The evidence further established agents. appel- four It idle for the argue appellant (1) agents lee to because The FBI knew where “voluntarily” not under formal arrest num- and for a lived had known produced incriminating prior document. April ber of months 1972. being forcibly He was detained under (2) agents appellant’s The knew the heavy hand of the law and knew make, model, color, year li- car it. it and knew the circum- Under cense number. case, compelled to stances of I am this agents (3) presumably The knew that believe the unreasonable an typist a had worked as under the Amendment. trusion Fourth practicing lawyer, a but no effort The materials discovered as a result appellant at that of- made to contact the suppressed be- should have been attorney. through fice or unlaw- were fruit Wong (4) agents appel- stop. The knew that ful Sun v. United Clay- 407, 441 lant the name L.Ed.2d of Gerald ton and had a num- Washburn known for that he was under arrest and advised him acknowledges rights. ber of months. of his that it is in itself to assume Agent Woodlieg further testified that identity. a false the FBI did not know or appellant had the false Selective Service (5) agents knew that the card; the Selective Washington lant driver’s license grounds Service card he had no on which Clayton the name of Gerald Washburn to arrest detain Ward and no facts copy li- seen driver’s suspect any which to law violation. stop prior April cense in records state’s agents justified appellant’s (Washington licenses drivers’ ground vehicle them). photograph have the driver’s carrying investiga- out their “traditional agents aware that were also tory function,” explaining in Seattle of were birth records wanted to interview the in se- died Gerald who had cret. years prior to as a small child several Central to the determination of this April appeal legality the FBI’s initial appellant’s interception of the automo- agents Woodlieg April On illegal, bile. If the then the together Clark with two new evidence obtained as a result of the leaving Seattle, spotted suppressed. should have been Volkswagen. They fol- in his residence from a food lowed the to and Although all street encoun co-op caught up and then ters between citizens and enforce law sign nearby intersection. ment involve Fourth Amendment in their then turned on the siren considerations, when an officer accosts unmarked car and motioned the by physical an individual and force or go to appellant the corner аnd around authority liberty show of restrains his turning immediately complied, short of a “sei becomes pulling the corner side over to the person. Terry Ohio, zure” of the agents stopped of the road. The in the 1, 16, 19, n. Volkswagen street behind Such a seizure about All five feet from the curb. four must then be tested for reasonableness approached exited the car under the Fourth This re Amendment. appellant. Agent Woodlieg testified that quires weigh the courts to the need for he and other identified them- police against action the inconvenience selves, appellant informed the stop intrusion which the entails. wanted interview him about federal Terry Ohio, supra; v. United States v. fugitives identify appellant and asked Mallides, (9th 1973); 473 F.2d 859 Cir. himself, already knowing appellant Leal, (9th United v. States 460 F.2d 385 was the name had Cir.), denied, cert. 409 U.S. ‍​‌​‌‌‌‌‌​​​‌​‌​​​​​‌​‌‌‌​‌​‌‌​​​​​‌​‌‌​​​‌‌​​‌​​‍93 S.Ct. a driver’s license in that When name. 34 L.Ed.2d 146 appellant produced li- driver’s censе, Agent Woodlieg appellee informed would forestall consid- Washburn did not exist and that could of erations stop, arguing of the reasonableness not Appellant response be intercep- Washburn. the FBI’s shrugged to this his and hand- tion merely shoulders car was an ef- Woodlieg ed a initiating private stack of identification fective method a in- papers say, you mean, as if terview, equiva- “What do and the use a siren Agent Washburn, course I’m seе.” lent to a knock on the door. Additional Woodlieg top Appellee saw that the identification Brief appellee for at 3-4. The registration card was a Selective thus claims that the road did not Washburn, certificate in the pur- name amount to a “seizure” within the immediately appellant informed the view the Fourth Amendment.

169 any particular has with Although Supreme car crime, connection pursuant was rather the precise point which not defined investigation general subject criminal to to a becomes police encounter There begun scrutiny, Terry months before. v. had several Fourth Amendment any emergency need nor situation Ohio, 88 was supra, n. U.S. at not immediate action. for four that when it is clear leave would fearful off the road pull a motorist sought an inter- never seizure town. there has been siren use at either only to view though with intended even although place both investigation. home of business United make a routine short, arranged. In (8th could Nicholas, have Cir. 448 F.2d States v. exigent war- 1971); Sigler, were no circumstances Carpenter v. 419 F.2d ranting extreme of a nature vehicu- (8th 1970); v. States see United Cir. stop by a siren on street. supra. lar Mallides, as law abiding respond was forced motorist Secondly, law enforce local while (unlike knock at siren may stops ment vehicular officers make ap door); despite that the the fact guardians generally, peace fed formally pellant under agents may only specific eral enforce flashed their when the four Frye federal statutes. v. United badges him, his freedom and surrounded denied, Cir.), (9th cert. 315 F.2d realistically depart restrained. 375 U.S. 84 S.Ct. supra. Nicholas, United We States v. Here, government’s by the interception find therefore that the FBI’s admission, own the FBI of Ward’s automobile under these cir reason to that the сumstances did constitute a “seizure” any going or was fed violated violate which must examined for reasonable be eral Brief for law. 13-15. ness the Fourth Amendment. under surrounding The circumstances significantly, Finally, and most distinguish present in the are case pursuant to the made Terry Ohio, able from those v. involved agent’s suspicion that the de- founded supra, and the decisions of this court tainee or about was involved “investigative upheld which have certain Rаther, activity.1 volved in criminal stops.” g., Bugarin- States E. purpose of for was made Casas, (9th 1973); Cir., 484 F.2d 853 questioning about a third Porter, (9th Wilson Cir. person. This then not a “. 1966). conformity Terry, we suspicious brief of a individual repeatedly have held that a founded sus in order to iden- determine his [made] picion activity that criminal afoot tity quo mo- to maintain the status requirement minimum lawful mentarily . . .” Adams Wil- Leal, detentive liams, 143, 146, supra; Davis, United States added), (emphasis 32 L.Ed.2d 612 (9th Cir. The facts object was not the present case, however, preclude such suspicions. Clearly, the FBI’s the nar- finding: exception Terry Ohio, supra, row investigative First, stops which allows was no crime “afoot.” grounds probable stop appellant’s short of did cannot “ by Ward, agent charge 1. . . . had [T]he a crime been committed suspect any prior seeing which to Service card.” law violation ” card; the Selective Id. . . at 14r-15. . Terry Brief ‘in- in this not a at 13. “The case was stop’ “Here, knowledge vestigative did since the not sus- aof having pect being com- committed and crime had been or did not anything, by appellant, observe Id. at lead Ward.” would them to mitted 21. 11, 1973, participate so as to allow detentive be stretched far did not in the con- generalized inquiries. stops for criminal sideration or decision of this case. intercep the FBI’s For these reasons CHAMBERS, Judge (dissent- Circuit must dis car be tion of the ing) : permissible tinguished investi from the I dissent expressed fоr the reasons approved gative in other stops we have Judge original panel Sehnacke in our Bugarin-Casas, g., United States v. situations. E. opinion, Ward, United States.v. F.2d supr in this case a. appel unreasonably with the interfered Further, it more seems clear than ever right to travel motorist with as a lant’s to me proper that this was not a case Brinegar v. United out interference. take en banc. 1302, 160, 177, States, 69 S.Ct. 338 U.S. (1949); Carroll v. United L.Ed. 1879 93 States, L. 45 S.Ct. 267 U.S. Supreme Ed. 543 States, 413 v. United

Almeida-Sanchez recently im reaffirmed the ‍​‌​‌‌‌‌‌​​​‌​‌​​​​​‌​‌‌‌​‌​‌‌​​​​​‌​‌‌​​​‌‌​​‌​​‍most right. portant The court nature of this

approvingly quoted Justice Taft lawfully “. . within coun- . those UNITED America, STATES try, highways, entitled to use Plaintiff-Appellant, right passage have in- to free without terruption or search . .’’in ab- al., Jess David RICHTER et good sence of cause. Id. at 93 S.Ct. Defendants-Appellees. at 2540. No. 73-1395. Having found the FBI’s Appeals, United States Court lant’s car to be an intru- unreasonable Ninth Circuit. Amendment, sion under Fourth we Nov. hold that the materials discovered as sup- result should have been pressed as the fruit unlawful Wong States, Sun v. United (1963); 83 S.Ct. 9 L.Ed.2d 441 ac-

cord,, Davis, (9th 1972); Clay Cir. United States, (5th 239 F.2d 196 Cir. “If right officers have the to interfere with pursuit

that essential of a nation au- tomobilists, it based what is reasonably known or believed before the

commandeering justi- To starts. allow discovery

fication to rest on after permit trusion would ‍​‌​‌‌‌‌‌​​​‌​‌​​​​​‌​‌‌‌​‌​‌‌​​​​​‌​‌‌​​​‌‌​​‌​​‍‘the Government * * * justify the arrest

search justify and at the same time to arrest,’ search Johnson v. 10, 16, 333 361, 370, Clay 442.” L.Ed. States, supra at 200-201. SNEED, Judge, qualified Circuit who judge September

as a court on this

Case Details

Case Name: United States v. Robert Portsche Ward

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 13, 1973

Citation: 488 F.2d 162

Docket Number: 72-3176

Court Abbreviation: 9th Cir.