Unpublished Disposition, 884 F.2d 1396 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 884 F.2d 1396 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellant,v.Teddy Warren SIMCHEN, Defendant-Appellee.UNITED STATES of America, Plaintiff-Appellant,v.William Franklin SWIGER, Defendant-Appellee.UNITED STATES of America, Plaintiff-Appellant,v.Charles Douglas BROWN, Defendant-Appellee.

Nos. 88-3199 to 88-3201.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 1989.Decided Aug. 31, 1989.

Before PREGERSON, BOOCHEVER and NOONAN, Circuit Judges.


MEMORANDUM* 

The government appeals the district court's order suppressing evidence seized by federal Alcohol, Tobacco and Firearms agents (ATF agents) during a warrantless search of each defendant's automobile. As a result of each search the ATF agents seized non-tax paid cigarettes to be used as evidence of the appellees' alleged violations of 18 U.S.C. section 2342 (1982), which makes it illegal for any person to transport contraband cigarettes across state lines.1  The district court found that the ATF agents did not have probable cause to believe that any of these defendant's automobiles contained contraband. Consequently, the district court determined that the search was illegal and suppressed the evidence. We have jurisdiction pursuant to 18 U.S.C. section 3731 (1982) and we affirm.

A warrantless search of an automobile in transit or parked in a public place is justified if, before conducting a search, the government had probable cause to believe that the automobile contained contraband. See California v. Carney, 471 U.S. 386, 392-93 (1985). " [P]robable cause alone suffices to justify a warrantless search of a vehicle lawfully parked in a public place, as long as the scope of the search is reasonable." United States v. Bagley, 772 F.2d 482, 491 (9th Cir. 1985) (emphasis in original), cert. denied, 475 U.S. 1023 (1986).

The government contends that the district court erred in finding that the ATF agents lacked probable cause to believe that the vehicles driven by Simchen, Brown and Swiger contained contraband. The district court's finding of probable cause is reviewed de novo. See United States v. Linn, No. 87-3093, slip op. 7891, 7899 (9th Cir. July 18, 1989).

To determine whether the ATF agents had probable cause we consider "all facts known to the officers and all reasonable inferences that could be drawn from these facts prior to the stop and search...." See United States v. Azhocar, 581 F.2d 735, 737 (9th Cir. 1978), cert. denied, 440 U.S. 907 (1979). An officer's mere suspicion that contraband is contained in an automobile does not constitute probable cause. United States v. Vasey, 834 F.2d 782, 788 (9th. Cir. 1987).

The facts in Brown and Swiger are similar. The Brown and Swiger suppression motions, therefore, shall be analyzed together. The facts which the ATF agents had developed prior to searching Brown's truck and Swiger's motor home were: a confidential informant told the ATF agents that Brown and Swiger were cigarette smugglers and that Lapwai Distributors was a source of smuggled cigarettes; the agents were informed that a motor home had been involved in the smuggling; shortly before Brown and Swiger drove into the Lapwai warehouse, the warehouse received what appeared to be a large shipment of cigarettes; the ATF Agents observed Brown and Swiger drive vehicles with hauling capacity and covered windows in and out of the Lapwai Distributors warehouse; Swiger's motor home had Washington plates; and the ATF agents followed Brown and Swiger from Lapwai distributors to the Washington border.

Since the warehouse walls prevented the ATF agents from seeing anyone load cigarettes into Brown's truck or Swiger's motor home, the government relies on an inference to establish the existence of probable cause. The government contends that it is not logical for Washington residents to travel hundreds of miles to purchase goods which can be purchased in Washington at the same price, and therefore Brown and Swiger must have traveled to Lapwai distributors to buy untaxed cigarettes.

It is unknown, however, what products in addition to cigarettes were warehoused at Lapwai Distributors. Further, the record indicates that the ATF agents did not know Brown's identity until after the agents stopped his truck in Washington and did not know Swiger's identity until after the agents arrested him. Thus, the confidential informant's tip concerning them did not constitute probable cause for arresting unidentified drivers. The government has failed to show that the activities of Brown and Swiger gave rise to more than a mere suspicion that they were transporting contraband. While their conduct may have been sufficient to give rise to a suspicion of illegal conduct, it was also consistent with innocent activity. Cf. United States v. Dickerson, 857 F.2d 1241 (9th Cir. 1988) (even though the erratic flight pattern and unique characteristics of a cargo plane entering U.S. airspace from Mexico were consistent with the plane's use in drug smuggling, federal agents lacked probable cause for the purpose of forfeiture). Accordingly, we find that the ATF agents lacked probable cause to believe Brown's and Swiger's vehicles contained contraband cigarettes. We affirm the district court's order to suppress the evidence found in Brown's and Swiger's vehicles.

Prior to searching Simchen's vehicle, the ATF agents were informed that Larry Clinkenbeard, who had a legitimate retail cigarette outlet, purchased large quantities of cigarettes; Washington State investigators told an ATF agent that some of Clinkenbeard's cigarettes were transported into Washington by a Mr. Gord; rental vans were sometimes used in the smuggling; cigarettes were delivered to Clinkenbeard's barn in Montana one day earlier; Simchen drove a U-Haul van into the barn and exited shortly thereafter; Simchen had rented the van in Washington the day before the search and it was due back the day after; and after leaving Clinkenbeard's the van was driven into Washington.

Simchen may have given the ATF cause to be suspicious. The facts and inferences available to the ATF before the search, however, did not constitute probable cause. As in Dickerson, the facts known to the ATF agents prior to the search may "point to a less than innocent activity. However, these facts give rise to no more than a mere suspicion" that the van was involved in contraband cigarette transport. Id. at 1244. The ATF had no prior information about Simchen. As with Brown and Swiger, in light of the information available to the ATF, Simchen's conduct was also consistent with innocence. We affirm the district court's order to suppress the evidence found in Simchen's vehicle.

Simchen also contends that he is not subject to 18 U.S.C. section 2342 because he is an Indian and, he argues, section 2342 does not prohibit Indians from transporting non-tax paid cigarettes. As the district court has not yet addressed this issue, we decline to do so.

AFFIRMED

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The term "contraband cigarettes" is defined in 18 U.S.C. section 2341(2) (1982) as: a quantity in excess of 60,000 cigarettes, located in a state which requires the payment of a state cigarette tax, displaying no evidence of the payment of the applicable cigarette tax, in the possession of a person to whom none of the exceptions listed in the statute applies. The state of Washington imposes an excise tax on cigarettes

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