Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1988)

MEMORANDUM^** 

Bobby C. Green and Jeremiah Sheppard appeal their convictions for conspiracy to steal, and wrongful possession of, goods taken in interstate commerce. Green and Sheppard claim that the district court improperly denied their motion to suppress evidence seized during a pat-down search conducted without reasonable suspicion, and that the evidence presented to the jury was insufficient to sustain a guilty verdict. We AFFIRM.

BACKGROUND

On September 27, 1988, at 3:45 a.m., Sergeant Mowry and Officer Zuniga of the Los Angeles Police Department observed Green and Sheppard behind a tractor-trailer in a parking lot. One man appeared to be using a socket wrench to work on the locking mechanism of the trailer. The officers stopped to investigate. As they approached, Green stated, "This is my truck, we are just working on it." The officers had Green and Sheppard place their hands on the hood of the officers' car while Zuniga investigated further. Zuniga observed that the truck's passenger wind-wing window was broken, the ignition had been removed and the engine compartment felt warm. Zuniga frisked Green and Sheppard, recovering a wind-wing window locking device from Sheppard's pocket. Next to the trailer was a pick-up truck Green identified as his. Mowry observed a slide hammer in the bed of the truck, just inside the open tail gate. Attached to the slide hammer was an ignition which fit the tractor. The officers seized the hammer, wind-wing device, socket wrench and gloves Green had been wearing, and arrested Green and Sheppard.

PROCEDURE BELOW

Green and Sheppard were each convicted of conspiracy to steal goods from interstate shipment in violation of 18 U.S.C. § 371 and possession of goods from an interstate shipment in violation of 18 U.S.C. § 659. Prior to trial, Green and Sheppard moved to suppress the items seized at the time of their arrest pursuant to Federal Rules of Criminal Procedure 41. After a hearing, the district court denied their motion.

DISCUSSION

A motion to suppress based on whether there was evidence sufficient to justify an investigatory stop is a mixed question of law and fact requiring de novo review. U.S. v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988). Findings of fact made at a suppression hearing are upheld unless clearly erroneous. United States v. Salas, 879 F.2d 530, 535 (9th Cir.), cert. denied, 110 S. Ct. 507 (1989).

The Initial Stop

"An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417 (1981). The Ninth Circuit has deemed the required level of justification to be a "reasonable" or "founded" suspicion of criminal activity. U.S. v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (1989). The determination that a stop is reasonably justifiable should be made considering the totality of the circumstances. Cortez 449 U.S. at 417. Thus, the question is whether, at the time they made the initial warrantless stop, Officers Mowry and Zuniga had observed facts sufficient to justify a reasonable suspicion that Green and Sheppard were, or were about to be, engaged in criminal activity.

In the order denying Green and Sheppard's motion to suppress, the district court relied upon the following findings of fact in concluding that there was reasonable suspicion for the initial stop: 1) the early morning hour--3:45 a.m., 2) either Green or Sheppard was using a socket wrench to work on the rear trailer door's locking mechanism (there was disagreement as to who was actually working on the truck), and 3) the experience of the officers in handling similar situations. Based upon these factors, Officers Mowry and Zuniga pulled into the lot, approached Green and Sheppard and had them place their hands on the hood of the police car while Zuniga investigated further.

In United States v. Torres-Urena, 513 F.2d 540 (9th Cir. 1975) (per curiam), the court held that police observing a male loading boxes into a truck at 6:20 a.m., in a driveway known by the police to belong to a female school teacher, which driveway was located one-quarter mile from the Mexican border, did not constitute founded suspicion. The court stated that innocent actions, absent indications of criminal activity, do not justify an investigatory stop. Id. at 542. In a later case where police observed an individual nervously driving an auto with a large trunk, two-way antenna, license brackets from a dealership associated with drug trafficking, in a neighborhood being investigated for narcotics activity, the court also found insufficient grounds for reasonable suspicion. United States v. Hernandez-Alvarado, 891 F.2d 1414, 1418 (9th Cir. 1989).

Founded suspicion was held to have been established, however, in Guam v. Ichiyasu, 838 F.2d 353, 356 (9th Cir. 1988). There the officer performing the stop had received radio dispatches describing the alleged crime and escape car, which was last seen turning up a dead-end street on the pier at 2:00 a.m. Moments later, the officer observed a tall, well-dressed, elderly man emerging from this same street in a taxi. Due to the early morning hour and the unlikelihood of events, the officer's suspicions leading him to detain the man were held to be founded. Id.

In Green and Sheppard's case, the officer's basis of suspicion rested upon their observation of two men using a wrench on the locking mechanism of a tractor truck trailer at 3:45 a.m. This is not, on its face, a wholly innocent activity. People do not normally gain access to their own trucks using socket wrenches. Even with an innocent explanation, for example, if Green or Sheppard had in fact been the rightful owner having simply lost the keys, the police were justified in investigating the situation due to its unlikelihood. The facts in this case are more analogous to those in Ichiyasu in which reasonable suspicion was found, than in Torres-Urena and Hernandez-Alvarado. We therefore hold that there was evidence sufficient to justify an investigatory stop at the time Green and Sheppard were initially detained.

Wrench, Gloves and Wind-wing Locking Device

Once the broken window, "punched" ignition and wind-wing locking device were discovered, there was probable cause for arrest. The wrench, gloves and wind-wing locking device were seized incident to the arrest. Their admissibility therefore hinges upon whether the initial detention and subsequent arrest were lawful. Terry v. Ohio, 392 U.S. 1, 30 (1968). Having found that the initial stop was justified, a subsequent frisk for weapons is allowable to protect the investigating policemen. Id.

Officers Mowry and Zuniga did not act unreasonably in taking measures to insure their safety under the circumstances. It is reasonable to presume that individuals suspected of hijacking a truck might be armed and dangerous. The incident occurred at 3:45 a.m. in a vacant lot. One of the officers was necessarily left alone with both Green and Sheppard while the other officer investigated the situation. The weapons frisk which revealed the wind-wing device was therefore a prudent precautionary measure.

The socket wrench and metal wind-wing device were both seized as potential weapons and as evidence of criminal activity subsequent to arrest. The gloves were also rightfully seized as evidence of criminal activity subsequent to arrest. We find that the district court was therefore correct in its decision to deny Green and Sheppard's motion to suppress these items.

Slide Hammer

We have concluded that the initial intrusion was lawful. Moreover, the officers were lawfully present in a lot which was open to the general public. Green held no expectation of privacy in the open bed of his truck. The discovery of the slide hammer was inadvertent as the tailgate was down, rendering the hammer readily observable to the public. United States v. Head, 783 F.2d 1422, 1427 (9th Cir.), cert. denied, 476 U.S. 1171 (1986). Both Sergeant Mowry and Officer Zuniga were aware that slidehammers are often used to "punch" ignitions, which was part of the crime they were investigating. The ignition itself was still attached. The slidehammer and ignition were therefore immediately apparent as evidence of a crime and thus were rightfully seized. We find that the district court did not err in refusing the motion to suppress the slidehammer.

Statement Made to Law Enforcement Officers

Green's initial statement to the officers that the truck was his and that they were just working on it was found to have been volunteered. It was given prior to any detention or investigation and thus was not the fruit of any illegality, and thus was properly admitted. United States v. Beraun-Panez, 812 F.2d 578, 580 (9th Cir.) modified on other grounds, 830 F.2d 127 (1987).

There is evidence sufficient to support a conviction if, viewing the evidence in the light most favorable to the prosecution, " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1989) (citation omitted) (emphasis original).

Count One: Conspiracy

The elements of a conspiracy include 1) an agreement to commit a crime, 2) membership in the conspiracy and 3) commission of an overt act. 18 U.S.C. § 371 (1988). A conspiracy may be proven by circumstantial evidence and once established, slight evidence of a defendant's connection with the conspiracy is sufficient to convict. United States v. Candoli, 870 F.2d 496, 511 (9th Cir. 1989).

The government presented evidence that 1) either Green or Sheppard was working on the back of a trailer at 3:45 in the morning while the other observed, 2) Green was not with his girlfriend at the time of the theft, (as he normally would be), 3) Green and Sheppard had been together that night, 4) the bolt enabling one to open the rear of the truck without breaking its seal had been removed three-quarters of an inch and 5) the slidehammer with ignition attached was found in Green's vehicle strongly corroborated their overt act of stealing the truck. We find these factors are sufficient to enable a rational jury to conclude that Green and Sheppard had conspired to commit a theft.

Count Three: Possession of Stolen Goods

The crime of possession of goods stolen from interstate commerce requires 1) possession and 2) knowledge that the goods are stolen. 18 U.S.C. § 659 (1988). United States v. Taylor, 802 F.2d 1108, 1115 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1987). Possession of the slidehammer with the punched ignition and the wind-wing device, coupled with the fact that Green and Sheppard were observed "working" on the back of the truck with a wrench, were sufficient for a jury to find that Green and Sheppard exercised the requisite degree of dominion or possession over the truck. Having found possession, it follows that a rational jury could infer that Green and Sheppard realized that neither the truck nor the goods rightfully belonged to them. Hence we find that the record contains evidence sufficient to support a conviction on both counts.

CONCLUSION

We find that the district court did not err in denying Green and Sheppard's motion to suppress evidence seized concurrent to their initial detention and subsequent arrest. We further find that there is sufficient evidence to support both Green's and Sheppard's convictions. The decision of the district court is therefore AFFIRMED.