Unpublished Disposition, 927 F.2d 611 (9th Cir. 1991)

MEMORANDUM^* 

Defendant argues that the consent to search her purse and her second residence was the fruit of an unlawful arrest. See United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1300 (9th Cir. 1988). The government concedes that there was no probable cause to arrest defendant. See Appellee's Brief at 18. Thus, the government must take the position that there was no arrest because (A) defendant stayed with the police for some two and a half hours of her own free will, or (B) the prolonged detention was a permissible stop under Terry v. Ohio, 392 U.S. 1 (1968).

A. It would be highly unusual for a private party to choose to spend the better part of an afternoon shuttling back and forth with police officers rather than going about her own business. Here, the police had taken defendant's purse, car keys and driver's license; they did not tell her that she was free to leave, nor that her property would be returned to her unconditionally upon request. The record simply cannot sustain a finding that defendant was voluntarily in the company of the police at the time she gave her consent. To the extent the district court may have found to the contrary, its finding is clearly erroneous.¹ 

B. Nor can we accept the government's argument that defendant was not really under arrest as she was merely the subject of a prolonged Terry stop. Terry allows police to detain an individual only so long as is necessary to confirm or dispel the suspicion that prompted the stop in the first place. United States v. Sharpe, 470 U.S. 675, 686 (1985). We can conceive of no circumstance where that process could take two and a half hours and involve all the varied activities the police engaged in during that time. The government's argument to the contrary does not pass the straight face test.

The unlawful detention vitiated her subsequent consents to search her purse and her second residence. Because she was convicted on the basis of evidence found in her purse and her second residence, appellant's conviction is

REVERSED.

RYMER, Circuit Judge, Dissenting

I do not disagree with the majority that a private party would be unlikely "to choose to spend the better part [indeed any part] of an afternoon shuttling back and forth with police officers rather than going about her business." However, Herrera said she would, six times orally and three times in writing. The consent forms she signed explicitly told Herrera that she had the right not to consent. The district court found her consent was voluntary. I respectfully disagree that we can disregard this finding. See United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988).

The district court also found that Herrera was not in handcuffs, confined, threatened or coerced. I cannot say these factual findings were clearly erroneous. Therefore, the record sustains a finding that Herrera was voluntarily in the company of the police when she gave her consent.

While the majority apparently raises its eyebrows at the government's argument that Herrera was not under arrest at some point during a two and one half hour process, the "straight face test" it adopts ignores the fact that any detention or seizure beyond a mere investigative inquiry was the direct result of Herrera's initial consent to search the car, which came within ten minutes or so of contact with the police. Twenty to thirty-five minutes later she expressly consented to a search of the Wavertree residence, and while at her home, consented to a search of her purse, and then to a search of Deerpark. All "the varied activities the police engaged in" were pursuant to consensual search. Because there is no evidence that the police did not pursue their investigation diligently and reasonably, the length of time alone does not convert the investigatory detention into an arrest. See United States v. Sharpe, 470 U.S. 675, 686-87 (1985).

If cases were decided by frowns, and I were a district judge, I might have found differently. As I don't believe they are, or that courts of appeal should close their eyes to district court findings, I dissent.