Unpublished Disposition, 845 F.2d 329 (9th Cir. 1988)

MEMORANDUM^* 

In this case, the Government appeals an order of the district judge granting defendants' motion to suppress evidence. At issue is whether defendants Bond and Keeton were detained in violation of their Fourth Amendment rights at an airport when the officers suspected them of fraudulent credit card use in purchasing their tickets. We have jurisdiction pursuant to 18 U.S.C. § 3731, and we affirm.

We need not address whether the initial stop of the defendants was justified by a reasonable and articulable suspicion of criminal activity, see United States v. Woods, 720 F.2d 1022, 1026 (9th Cir. 1983), because we find that the stop developed into a de facto arrest when the officers escorted the defendants to the police substation. The Government concedes that it had no probable cause to support an arrest at that point. An arrest made without probable cause is illegal, and evidence or statements seized as a product of illegal detention must be suppressed. Taylor v. Alabama, 457 U.S. 687, 690 (1982).

The circumstances surrounding the defendant's detention clearly surpassed the brief and narrowly defined intrusion authorized by Terry v. Ohio, 392 U.S. 1 (1968). See Gonzales v. City of Peoria, 722 F.2d 468, 477 (9th Cir. 1983). We have previously stated that a primary factor in determining whether an arrest has occurred is " 'whether or not the defendant was free to choose between terminating or continuing the encounter with law enforcement officers,' " United States v. Patterson, 648 F.2d 625, 632 (9th Cir. 1981) (citation omitted) and whether a show of authority was used "such that the innocent person could reasonably have believed he was not free to go and that he was being taken into custody indefinitely...." Kraus v. County of Pierce, 793 F.2d 1105, 1109 (9th Cir. 1986). The duration of detention is also relevant to the inquiry although there is no "bright line" test for determining when an investigative stop is transformed into an arrest. United States v. Sharpe, 105 S. Ct. 1568, 1575 (1985).

Here, the defendants were not free to leave once the officers asked them to go to the substation. The district court found that the defendants indicated reluctance in accompanying the officers, and that Officer Shepherd testified that, had the defendants resisted, he would have forced them to go to the substation. Moreover, upon reaching the substation, the defendants were placed in separate rooms, with uniformed officers in the vicinity at all times. The district court found they were not allowed to leave during that time. This scenario clearly indicates that the defendants were under de facto arrest.

The Government places considerable reliance on the following statement made by the Supreme Court in Sharpe:

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.

Id. at 1575. The Government argues that the officers "diligently pursued" the investigation during the time that the defendants were in the interrogation rooms, by making a series of phone calls to determine whether the tickets were purchased through fraudulent use of credit cards. The Government, however, misapplies the statement in Sharpe to the present case. The only issue in Sharpe was whether the detention was too long in duration to be justified as an investigative stop. Id. at 1574. The Court declined to impose a "rigid time limitation on Terry stops," instead, taking other considerations into account such as the diligence of the police in pursuing their investigation. Id. at 1575. It expressly distinguished other cases where the Court found the investigative stop impermissible for reasons other than the pure duration of the stop. It stated, for example, that Dunaway v. New York, 442 U.S. 200 (1979), "is simply inapposite here: the Court was not concerned with the length of the defendant's detention, but with events occurring during the detention." Id. at 1574. Similarly, it stated that the focus in Florida v. Royer, 460 U.S. 491 (1983), as in Dunaway, "was primarily on facts other than the duration of the defendant's detention--particularly the fact that the police confined the defendant in a small airport room for questioning." Id. Thus, while the diligence of the police in pursuing its investigation may justify extending the duration of the stop, it does not justify resort to more intrusive means in carrying out the detention.

We have found the detention in this case violative of defendants' Fourth Amendment rights, not primarily due to the duration of the detention, but rather due to the means by which it was accomplished. Rather than detaining the defendants in the concourse area, the police forced the defendants to accompany them to the substation where they were placed in confined rooms, and were denied permission to leave. These circumstances are similar to those in Royer and Dunaway. As the Court in Dunaway stated, "Petitioner was not questioned briefly where he was found. Instead, he was ... transported to a police station, and placed in an interrogation room." 99 S. Ct. at 2256. The circumstances are vastly different from those in Sharpe, where the suspect was detained for 20 minutes at the place he was stopped, and where the suspect's own actions "contribut [ed] to the added delay about which he complains." Sharpe, 105 S. Ct. at 1576. We hold that the district court was correct in finding that the defendants were illegally detained.

The order granting the motion to suppress is AFFIRMED.