Unpublished Disposition, 863 F.2d 887 (9th Cir. 1988)

MEMORANDUM^* 

OVERVIEW

Omar Robles-Serrano appeals his conviction for possession with intent to distribute marijuana. We reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

On October 14, 1987, customs agents staked out an area in Arizona near the border of the Republic of Mexico. They observed a light-colored pickup truck filled with bundles coming out of a canyon. Agent Swanson saw a truck that met that description and radioed to the other agents the direction the truck was going. Between two and twenty-five minutes later, Agent Peugh discovered a parked light-colored pickup truck. He also saw a young man who appeared frightened and was wearing a denim jacket and black gloves cut off at the fingertips walking briskly approximately 80 feet away from the truck. Peugh checked the back of the truck and saw bags of marijuana. He turned back to speak with the young man but no longer saw him. Peugh radioed a description of the young man and his clothing.

Agent Bell heard Agent Peugh's radio communication. A few minutes later, Bell saw a person dressed as Peugh had described jogging near the street on which Peugh had said he had observed the man. Bell and his partner stopped, frisked, and handcuffed Robles-Serrano, placed him in the backseat of the car, and drove him to where the pickup was parked.

Peugh identified the appellant as the person whom Peugh earlier had seen 80 feet from the pickup truck. Peugh advised him of his constitutional rights and questioned Robles-Serrano regarding the pickup truck. Peugh patted him down for the second time and discovered a hard object in his pocket. Peugh pulled out a set of keys, discovered that one of them was a Ford key, and asked Robles-Serrano if the keys belonged to the Ford pickup truck. Robles-Serrano answered yes. Peugh then informed Robles-Serrano that he was under arrest.

Appellant was driven to the Customs Office. Agent Andreu advised him of his constitutional rights, including his right to an attorney. Robles-Serrano asked Andreu who would pay for the attorney. Andreu responded that the attorney would be appointed. The appellant then agreed to talk with Andreu without counsel and confessed to accepting payment for transporting the truck with marijuana in it. Robles-Serrano asked to make a phone call to his family but the agents refused. Appellant testified that he intended to use the phone call to obtain a lawyer.

Defendant was charged with possession with intent to distribute approximately 600 pounds of marijuana in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (vii) on November 1, 1987. Defendant filed pre-trial motions to suppress physical evidence and statements on November 25, 1987. The district court denied the motion to suppress statements on December 14, 1987 and the motion to suppress evidence on January 5, 1988. A jury tried the matter on January 5 and 6, 1988, and returned a verdict of guilty on January 7, 1988. Robles-Serrano was sentenced on March 2, 1987 to five years imprisonment, to be followed by four years of supervised release. He is presently incarcerated.

DISCUSSION

We review de novo the district court's grant of Robles-Serrano's motion to suppress and we uphold its findings of fact unless they are clearly erroneous. United States v. $15,000 U.S. Currency, 845 F.2d 857, 859 (9th Cir. 1988). The ultimate conclusion regarding the lawfulness of a seizure is a mixed question of law and fact that we review de novo. Id.

To decide whether probable cause existed to arrest Robles-Serrano, the Court must determine when the arrest occurred. The government contends that the customs agents acted within the reasonable scope of a Terry stop when they stopped, frisked, handcuffed, and transported Robles-Serrano to a different location for questioning and possible identification. The defendant argues that the latter intrusion on his liberty constituted an arrest. We agree.

The Ninth Circuit has held that the government effects an arrest when an average person, innocent of any crime, would reasonably believe that he or she was not free to go. United States v. Pinion, 800 F.2d 976, 978-79 (9th Cir. 1986), cert. denied, 107 S. Ct. 1580 (1987); Kraus v. County of Pierce, 793 F.2d 1105, 1109 (9th Cir. 1986), cert. denied, 107 S. Ct. 1571 (1987); United States v. Beck, 598 F.2d 497, 500 (9th Cir. 1979). As the government observes, the Court has permitted limited intrusions on a suspect's liberty during a Terry stop to protect officers' safety. See, e.g., United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982), cert. denied, 459 U.S. 1211 (1983) (holding that an officer's use of handcuffs was permissible in a Terry stop because he reasonably feared for his safety). We also have held that briefly placing a suspect in a police car does not necessarily convert a Terry stop into an arrest requiring probable cause. United States v. Parr, 843 F.2d 1228 (9th Cir. 1988). Officer and civilian safety and the comfort and security of the subject of a Terry stop may sometimes justify the latter two exceptions to the rule against constraining the liberty of the person stopped.

Handcuffing and transporting a suspect to a different location for questioning or identification, however, exceeds the scope of a Terry stop. A reasonable person under similar circumstances would not believe that he or she was free to leave. See, e.g., Pinion, 800 F.2d at 978-79; Kraus, 793 F.2d at 1109. A less intrusive means of effectuating the purposes of the Terry stop were reasonably available. See Florida v. Royer, 460 U.S. 491, 500 (1983) (Opinion of White, J.). The agents could have detained Robles-Serrano briefly by the roadside for questioning and asked Peugh to come to that location to identify him. The values of officer and civilian safety might justify involuntary movement of a suspect during a Terry stop only in rare and unusual circumstances. No such circumstances existed in this case. Therefore, the arrest occurred when Agent Bell moved Robles-Serrano to another location.

Agent Bell did not have probable cause to arrest Robles-Serrano when Bell handcuffed and moved him. Agent Bell knew only that a man dressed like Robles-Serrano was seen several minutes earlier walking briskly 80 feet away from a pickup truck filled with marijuana, which had been parked within the last five minutes. The man, walking briskly or jogging in the early evening in a residential neighborhood, appeared frightened. No witness had seen any identifying features of the driver or passengers of the truck. Indeed, one agent had reported that he had observed two figures in the cab.

Mere proximity to the scene of a crime is not enough to conclude that a person is involved in criminal activity. United States v. Webster, 750 F.2d 307, 324 (5th Cir. 1984), cert. denied, 471 U.S. 1106 (1985); United States v. Jennings, 468 F.2d 111, 114 (9th Cir. 1972). There was insufficient evidence in this case from which to infer that Robles-Serrano had driven the truck or was involved in drug smuggling. Therefore, Bell's arrest of Robles-Serrano was impermissible as lacking probable cause.

The keys and the confession were obtained as a result of the illegal arrest. Therefore, they were inadmissible as fruits of the poisonous tree. See Taylor v. Alabama, 457 U.S. 687, 690 (1982); Brown v. Illinois, 422 U.S. 590, 603 (1975); Wong Sun v. United States, 371 U.S. 471 (1963).

We REVERSE and REMAND to the district court for further proceedings.