Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

MEMORANDUM^** 

Randy Tim Johnson (Johnson) appeals his conviction for possession with intent to distribute five or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (iii). We affirm.

Johnson contends that his conviction should be reversed because obtained in violation of his rights under the Fourth Amendment. Specifically, Johnson asserts (1) that the initial stop, detention and seizure of the vehicle by the officers was based on an improper pretext; (2) that his post-stop detention by the officers amounted to an arrest and was improper; and (3) that Johnson's consent to the search of the vehicle was involuntary, and even if there was an initial consent, the search exceeded the scope of that consent.

Whether there was "a founded suspicion to justify an investigatory stop" is a "mixed question of law and fact and therefore requires de novo review." United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988) (citing United States v. Maybusher, 735 F.2d 366, 371 & n. 1 (9th Cir. 1984), cert. denied, 469 U.S. 1110 (1985)). See also United States v. Alvarez, 899 F.2d 833, 836 (9th Cir. 1990).

Whether the search was voluntary is a question of fact, based on the totality of the circumstances and subject to the "clearly erroneous" standard of review. United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988) (citing United States v. Licata, 761 F.2d 537, 544 (9th Cir. 1985)); see also United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir. 1988). Furthermore, " [o]n appeal the evidence must be viewed in the light most favorable to the fact-finder's decision." Castillo, 866 F.2d at 1082.

Defendant Johnson waived a jury trial and pled guilty. The district court sentenced him to 135 months in prison. Id. at 132. This appeal is timely. We have jurisdiction under 28 U.S.C. § 1291.

* The necessary basis for a brief investigatory stop, first sketched out in Terry v. Ohio, 392 U.S. 1 (1968), was further delineated in United States v. Cortez, 449 U.S. 411 (1981). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." Cortez, 449 U.S. at 417. "In evaluating the lawfulness of the stop, 'the totality of the circumstances--the whole picture--must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity,' " Thomas, 863 F.2d at 625 (quoting Cortez, 449 U.S. at 417-18), which "must exist at the time the officers initiate the stop. United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir. 1985).

Here, officers Jackson and Moreschi had been warned at police roll call about a white Mustang convertible which had been observed in their area of patrol, whose operators were suspected of gang activity, and from which guns had been removed the previous day by other police officers. Transcript at 6-7, 39. On his next patrol after receiving this warning, Officer Jackson saw a white Mustang convertible parked by the side of the road. According to Officer Jackson's testimony, which the trier of fact adopted in its opinion, CR at 2-5, the Mustang immediately left the area, made an improper lane change without signaling, and accelerated away from the intersection at high speed. The car was also missing a front license plate. TR at 41-43.

We have upheld investigatory stops for traffic violations. United States v. Fouche, 776 F.2d at 1403 (determining that common traffic violations standing alone can amount to founded suspicion for a brief investigative stop), aff'd, 833 F.2d 1284 (9th Cir. 1987), cert. denied, 486 U.S. 1017 (1988). See also United States v. Thompson, 597 F.2d 187, 189 (9th Cir. 1979) (upholding a traffic stop where the suspect was speeding, rolled through a stop sign, and was driving a car with a broken tail light). In the present case, the trial court determined that Officer Jackson had a legitimate basis for the brief detention of the Mustang, which Johnson was driving.¹  TR at 98. We agree.

II

Appellant next contends that the ensuing detention by the officers amounted to an arrest, citing United States v. Smith, 802 F.2d 1119 (9th Cir. 1986) and Taglavore v. United States, 291 F.2d 262, 265 (9th Cir. 1961). Officers Jackson and Moreschi testified that after pulling the vehicle over, they approached the car with their guns holstered. TR at 12. Officer Moreschi approached the driver's side of the vehicle and asked Johnson for identification. Johnson produced identification (which later turned out to be false, TR at 81). The officer then asked Johnson whether he had any guns or drugs in the car, and Johnson answered "no." TR at 12. The officer next asked Johnson, "do you mind if we search it?" to which Johnson replied, "no, go ahead." Id. Officer Moreschi then asked Johnson and his passenger to step out of the vehicle and made a pat-down search of their outer clothing while Officer Jackson read him his Miranda rights. The officers then walked Johnson and his passenger to separate patrol cars, and had them wait in the patrol cars while Officer Moreschi conducted the search. TR at 12-13. The officers testified, and the trier of fact agreed, that Johnson was not handcuffed and placed under arrest until after two guns and a plastic bag containing cocaine had been found and removed from the defendant's car.

We agree with the district court's determination that such a finding comports with the current case law. See, e.g., United States v. Parr, 843 F.2d 1228 (9th Cir. 1988) (determining that briefly placing a suspect in a police car does not convert a Terry stop into an arrest requiring probable cause); United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir.), cert. denied, 476 U.S. 1185 (1986) (finding an investigatory stop where officers instructed suspects to put their hands on the car, and where officers then drew their weapons); United States v. Taylor, 716 F.2d 701 (9th Cir. 1983) (finding an investigatory stop where officers approached suspects with their weapons drawn after having been warned that the suspects were dangerous).

III

The final question is whether Johnson's consent to the search of the vehicle he was driving was voluntary. A person may waive his or her Fourth Amendment protections by consenting to a warrantless search by law enforcement officers. Schneckloth v. Bustamente, 412 U.S. 218, 219 (1973) (warrantless search of car valid where defendant gives voluntary consent to search). Evidence obtained during such a search may be admitted into evidence. Id. at 222. The finder of fact looks to the totality of the circumstances surrounding the consent to see if it was given freely and voluntarily. See, e.g., United States v. Mendenhall, 446 U.S. 544, 557-59 (1980) (plurality opinion) (consent search of handbag valid under totality of circumstances); United States v. Castillo, 866 F.2d at 1082. Here, we do not find the district court's determination that Johnson's consent was voluntary to be clearly erroneous.² 

Regarding the scope of the search, the police are entitled to draw reasonable conclusions based on the totality of the circumstances. United States v. Lopez-Diaz, 630 F.2d 661 (9th Cir. 1980). Officer Moreschi testified that he understood Johnson's response of "go ahead" after the officer requested to search the car, included the glove box, which was part of the car. TR at 32-33. The officer testified that after searching the passenger compartment of the car, he then "peeked inside" the glove box by lifting the door back with his finger, and was able to see cocaine and a gun inside. TR at 15, 32. He then returned to the patrol car where Johnson was waiting, determined that Johnson had his Miranda rights read to him and asked Johnson for the key to the glove box. TR at 15. Johnson insisted that he did not have the key. Id. Officer Moreschi then returned to the vehicle, forced the glove box, removed two guns and a bag of cocaine, and placed Johnson under arrest. TR at 16.

Appellant contends that " [t]he prying open of the glove box exceeded the scope of any consent that was given." Appellant's Brief at 11. Law enforcement officials must abide by limitations placed by suspects on consents to warrantless searches. United States v. Rubio, 727 F.2d 786 (9th Cir. 1983); United States v. Washington, 739 F. Supp. 546 (D. Or. 1990) (finding that officers' removal of back seats from a vehicle in order to search the trunk exceeded the scope of consent, where suspect had limited the search by requesting that no damage be done to his car). However, failure to produce the keys to a locked object does not indicate that a prior consent to a search has been withdrawn. United States v. Brown, 884 F.2d 1309, 1312 (9th Cir. 1989) (determining that prior consent to search a locked suitcase was valid even where defendant attempted to hide the key from the police), cert. denied, --- U.S. ----, 110 S. Ct. 732 (1990). But cf. United States v. Patacchia, 602 F.2d 218, 219 (9th Cir. 1979) (determining that consent to search of a locked trunk of a vehicle was lacking where defendant had agreed to search of car but stated that trunk was broken and could not be opened). Johnson's failure to object to the continuation of the search further supports the district court's conclusion that the search was within the scope of the original consent. United States v. Sierra-Hernandez, 581 F.2d 760, 764 (9th Cir.), cert. denied 439 U.S. 936 (1978).

AFFIRMED.