Unpublished Disposition, 884 F.2d 1396 (9th Cir. 1986)

MEMORANDUM^* 

James Morrison was tried before a jury and convicted of theft of government property having a value in excess of $100.00, in violation of 18 U.S.C. § 641. Morrison contends that his conviction should be reversed because the district court erred in denying his motion to suppress evidence obtained from an arrest allegedly made without probable cause. Morrison further contends that the district court erred in denying his motion for a continuance, his motion to strike testimony, and his motion for acquittal. Finding no merit in Morrison's appeal, we affirm.

On June 23, 1986, Joel Scrafford, a United States Fish and Wildlife Service Agent, reported to the Missoula City Police that numerous items of personal and government property had been stolen from his truck. Among the items taken was a tan-colored tee-shirt bearing a distinctive image of "The Phantom Ram". Scrafford provided the Missoula Police with an identical shirt in order to assist their investigation. Scrafford informed Officer Richard Lewis of the distinctive nature of the shirt and told him that there were very few of the shirts in Montana. Lewis's testimony states that:

"I understood there was, like, six, seven, eight, or nine, or under ten shirts in the state; and that most of them were in eastern Montana that he [Scrafford] knew of, and that there wouldn't likely be one in that area. And that if I did see one, it would probably be one who either took it or knew who took the shirt from his vehicle."¹ 

On July 3, 1986, Lewis observed Morrison in downtown Missoula, in the same area in which the theft occurred, wearing a tan tee-shirt bearing the Phantom Ram image. Lewis approached Morrison and asked him for his name and identification. Lewis told Morrison that the shirt he was wearing had been stolen and asked Morrison where he had obtained it. Morrison answered that he purchased the shirt at a rummage sale. Lewis testified that Morrison's responses to his questions concerning exactly where and when he had obtained the shirt were evasive, that he was becoming "extremely uncomfortable" and began to "back away" in light of the questioning. Lewis testified that his experience led him to believe that Morrison was about to flee. Officer Ludemann arrived in another police car. He testified that immediately upon his arrival at the scene of questioning he observed Morrison backing up from Lewis and that it appeared that Morrison was preparing to flee. Ludemann then handcuffed Morrison and transported him to the police station for further questioning. Morrison was read his Miranda rights at the police station. He stated that he wanted an attorney. Lewis and other officers were standing in the doorway of the room in which Morrison was being detained discussing that a search warrant would be sought after lunch. Lewis testified that Morrison then exclaimed, "You don't need a warrant. Just go out there and I'll give you the stuff." The police obtained a search warrant and recovered many of the stolen items after searching Morrison's residence.

Based on the above facts, the district court concluded that Lewis conducted a proper Terry stop, that the totality of facts and circumstances surrounding the stop ripened into probable cause to arrest Morrison, and that Morrison was arrested at the time he was handcuffed and transported to the police station. Accordingly, the court denied Morrison's motion to suppress evidence. Morrison was convicted after trial by jury. Morrison now appeals.

Morrison first contends that he was arrested without probable cause. We review de novo whether Morrison's arrest was supported by probable cause. United States v. Greene, 783 F.2d 1364, 1367 (9th Cir. 1986). We review for clear error the district court's underlying findings of fact. Id.

We agree with the district court's analysis in denying Morrison's motion to suppress. Lewis had personally observed the tee-shirt at the police station and had good reason to believe that few of the shirts were likely to be found in Missoula.²  When he saw Morrison wearing this shirt in the area where the theft occurred, he had a reasonable suspicion that Morrison may have been involved in the earlier theft. This is sufficient to justify a stop under Terry v. Ohio, 392 U.S. 1 (1968). United States v. Espinosa, 827 F.2d 604, 608 (9th Cir. 1987); United States v. Holland, 510 F.2d 453, 455 (9th Cir. 1975). After de novo review, we agree with the district court that Lewis made, and was justified in making, a Terry stop. Further, we find no error in the court's determination that an arrest was made at the time that Morrison was placed in the patrol car for transporting to the police station. See United States v. Pinion, 800 F.2d 976, 978 (9th Cir. 1986) (district court determination of when an arrest occurs is reviewed for clear error).

We further conclude that Morrison's warrantless arrest was supported by probable cause. Morrison was stopped very close to the scene of the theft, relatively soon after the theft, and was stopped only after he was observed wearing a very distinctive tee-shirt known to have been stolen. Morrison provided evasive answers to Officer Lewis' questions concerning his possession of the shirt, appeared uncomfortable in light of the questions, and was observed by two officers who believed he was about to flee. Given all of these circumstances, we agree with the district court that all of the facts and circumstances surrounding the Terry stop ripened into probable cause to arrest Morrison at the time he was handcuffed and transported to the police station. See, e.g., United States v. Fouche, 776 F.2d 1398, 1403-04 (9th Cir. 1985) (totality of facts and circumstances permits consideration of officer's experience in determining whether there was probable cause).³ 

Morrison next contends that the district court erred in failing to grant a continuance of his trial. Morrison moved for a continuance on the morning of trial on the ground that he needed additional time to locate government witness Dora Morrison. The district court denied the continuance because defense counsel knew at least three days before trial of the government's intention to introduce an affidavit setting forth Dora Morrison's damaging statements.⁴  The district court stated that in light of defense counsel's advance notice of the government's intention to introduce the statement, the motion could have been made earlier, thus saving the venire panel from traveling to the courthouse through fresh snow.

We review the district court's denial of a continuance for an abuse of discretion. Armant v. Marquez, 772 F.2d 552, 556 (9th Cir. 1985). When ruling upon a defendant's request for a continuance to obtain a witness, a district court must consider, inter alia, whether the witness can probably be obtained if the continuance is granted and whether the defendant exercised due diligence in seeking to obtain the witness' attendance at trial. United States v. Sterling, 742 F.2d 521, 527 (9th Cir. 1984). We consider the following factors when determining whether the district court abused its discretion: 1) the degree of diligence in the defense's efforts to obtain the witness; 2) the inconvenience caused by the grant of the continuance; 3) the likelihood that a continuance will lead to the witness' presence at trial; and 4) the prejudice suffered as a result of the denial. See Armant, 772 F.2d at 557. We find no abuse of discretion.

The district court carefully considered the relevant factors and soundly exercised his discretion. The court determined that the government, employing its extensive resources, made many attempts to locate Dora Morrison but had been unable to locate the witness. Given the government's efforts to locate the witness, we think it highly unlikely that defense counsel would have been able to locate Dora Morrison. Further, even in the light of a three-day time-frame, there is no evidence of defense counsel's diligent efforts to obtain Dora Morrison's attendance at trial. Given the eleventh-hour motion, the district court did not abuse its discretion in noting the inconvenience, although slight, to the government if the continuance were granted. Lastly, the defendant was not greatly prejudiced as the defense was able to offer its theory of impeaching the probative value of the affidavit during cross examination of government witness Ed Traeger.

Morrison lastly argues that the district court erred in admitting the testimony of Agent Scrafford concerning the value of the items stolen from his truck. In a related manner, Morrison argues that the district court erred in denying his motion for acquittal based upon a failure of proof as to the value of the stolen goods. Morrison's arguments are meritless. Agent Scrafford's testimony amply demonstrates that his testimony pertaining to the value of the stolen goods was based on personal knowledge of the value of those goods. There was no basis to strike or exclude his testimony in this regard. Further, his testimony furnished ample evidence from which the jury could find beyond a reasonable doubt that Morrison had stolen goods valued in excess of $100.00. The district court correctly denied Morrison's motion of acquittal.

For the foregoing reasons, we affirm the judgment of the district court.

Although Morrison has not challenged the $50.00 special assessment imposed pursuant to 18 U.S.C. § 3013, we have held the statute unconstitutional. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988). Accordingly, we vacate the special assessment in this case.

AFFIRMED IN PART AND VACATED IN PART.