Unpublished Disposition, 848 F.2d 199 (9th Cir. 1988)

MEMORANDUM^* 

Aubin Jeter pleaded guilty to charges of manufacturing and possessing counterfeit bills in violation of 18 U.S.C. §§ 471 and 474 (1982), preserving his right to challenge the district court's denial of his motion to suppress. On appeal Jeter argues (1) the warrantless search of the McMinnville locker was unlawful because he had not abandoned the premises; (2) the stop of his van was not based on founded suspicion; (3) his consent to the searches was not voluntary; and (4) the district court erred in failing to require the government to prove voluntariness by clear and convincing evidence. We affirm.

DISCUSSION

1. Abandonment.

A trial court's determination of abandonment is a factual finding and will be reversed only if it is clearly erroneous. United States v. Mendia, 731 F.2d 1412, 1414 (9th Cir.), cert. denied, 469 U.S. 1035 (1984). The inquiry is not whether all formal property rights have been relinquished, but whether one retains a reasonable expectation of privacy in the property allegedly abandoned. United States v. Sledge, 650 F.2d 1075, 1081 (9th Cir. 1981). Because all the valuable items had been taken from the McMinnville locker, some refuse left behind, and the locks removed from the doors, the district court properly found that Jeter relinquished his expectation of privacy.

2. Founded Suspicion.

Founded suspicion exists if an officer has a "particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981). In determining whether founded suspicion exists, we look to the totality of circumstances, and " [i]nferences or deductions apparent to trained law enforcement officers may be considered." United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir. 1985). Founded suspicion may be based, at least in part, on conduct consistent with innocent behavior. See United States v. Sutton, 794 F.2d 1415, 1427 (9th Cir. 1986). We review de novo the district court's conclusion that founded suspicion existed. Fouche, 776 F.2d at 1402. The findings of fact supporting the court's conclusion are reviewed for clear error. Id.

Authorities knew the following before stopping Jeter:

(1) Robin Whidden had been arrested for counterfeiting; (2) Whidden lived with Jeter's former daughter-in-law; (3) Jeter's phone number was in Whidden's wallet; (4) numerous phone calls had been placed from Whidden's residence to Jeter; (5) partially burned counterfeit bills matching Whidden's and a partly destroyed printing plate were found near Jeter's home; (6) Jeter had a prior counterfeiting conviction; (7) shortly after Whidden's arrest, Jeter and his son cleared out their McMinnville storage unit and were moving the contents some distance away, possibly even out of the state; and (8) a printing plate was found in the storage unit vacated by the Jeters. Because these facts are more than adequate to create a particularized and objective basis for suspecting Jeter of criminal activity, the trial court properly concluded that founded suspicion existed. See Cortez, 449 U.S. at 417.

Whether consent to a search is voluntary is a question of fact. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Jeter contends that the trial judge clearly erred in finding that Blecha mentioned a warrant and lied to Jeter about his son after Jeter consented to the search of his van. Jeter maintains that he asked if he could leave and Blecha stated that Jeter could, but that his van must stay until it was searched. Jeter suggests that the prospective nature of Blecha's statement proves that the discussion of a warrant occurred before consent was given. As further proof Jeter notes that Detective Benz, who assisted Blecha in searching the van, did not recall hearing Blecha mention a warrant or the arrest of Jeter's son.

This argument is unpersuasive. First, Blecha testified that he did not recall exactly what he said to Jeter and that he could only speculate. Second, Benz stated that he could not hear everything discussed between Blecha and Jeter. Finally, there was no testimony directly contradicting Blecha's rendition of the facts. Consequently, the district court's findings regarding the timing of these discussions are not clearly erroneous.

Jeter also argues that his consent was involuntary because it was the product of a de facto arrest. He contends an arrest occurred because (1) he was surrounded by three police cars and confronted by four officers and (2) his encounter with the officers, from the stop until his formal arrest, lasted ninety minutes. The district court held that the circumstances did not amount to a de facto arrest. That holding is reviewed de novo. United States v. Al-Azzawy, 784 F.2d 890, 892 (9th Cir. 1985), cert. denied, 476 U.S. 1144 (1986).

As a preliminary matter, we note that Jeter's factual assertions are not fully supported by the record. First, he was never surrounded by three police cars. When he was stopped by the patrol car, Jeter pulled into a parking lot. Because the lot was small, the patrol car and one unmarked car pulled in near Jeter's van, while Blecha parked around the corner. The two cars may have impeded forward progress by Jeter's van but did not block its backward movement. Second, Jeter's contention that he was confronted by four police officers is unsupported. Officer Probasco testified that after pulling Jeter over, he had no further contact with him. Probasco stood next to his patrol car for a few minutes and then drove off. The record also suggests that Officer Hansen (who was in an unmarked car with Benz) did not have any direct contact with Jeter.

Even accepting Jeter's rendition of facts, however, we hold there was no de facto arrest. On numerous occasions we have recognized that " [a] valid stop is not transformed into an arrest merely because law enforcement agents momentarily restrict a person's freedom of movement. They may impose such a restriction to maintain the status quo while making an initial inquiry, provided the force displayed is not excessive under the circumstances." See United States v. Patterson, 648 F.2d 625, 633 (9th Cir. 1981). See also United States v. Parr, No. 86-3224, slip op. 4139, 4146 (9th Cir. April 7, 1988); United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982), cert. denied, 459 U.S. 1211 (1983). Patterson is particularly relevant here. In Patterson a police car completely blocked the means of egress of a suspect's automobile. We noted that " [a]lthough an innocent person in [the suspect's] position might reasonably have believed he was not free to go, the force used was not excessive and the innocent person could not reasonably have assumed he was being taken into custody indefinitely. The stop was not an arrest." 648 F.2d at 634. Hence, even if Jeter's car was blocked, this temporary but complete detention was justifiable for the purposes of conducting a brief investigation. Moreover, excessive force was not used in detaining Jeter. No guns were drawn or displayed; nor did the officers lay hands on Jeter prior to his actual arrest. Indeed, Officer Benz testified that Jeter was friendly and cooperative from the start and did not appear "at all concerned or intimidated by our presence."

Jeter's argument regarding the duration of the investigative stop is also meritless. The Supreme Court has refused to impose any bright-line durational limits on Terry stops. United States v. Place, 462 U.S. 696, 709-10 (1983). Terry and its progeny authorize brief investigatory stops, the permissible limits of which are defined by whether police acted diligently to confirm or dispel their suspicions. United States v. Sharpe, 470 U.S. 675, 686 (1985). We agree with the district court that the police here conducted their investigation diligently.

Moreover, after police conduct their initial investigation, a further search may be based upon consent. See United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975); see also United States v. Safirstein, 827 F.2d 1380, 1383-84 (9th Cir. 1987) (initial stop, questioning, and limited search justified if based on consent); United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir. 1986) (detention for questioning valid if based on consent). Because reasonable suspicion existed to detain Jeter and the district court's finding that Jeter voluntarily consented to the searches was not clearly erroneous, we conclude that Jeter's consent was sufficient to legalize the search of the van and storage unit. See Florida v. Royer, 460 U.S. 491, 501 (1983). Therefore the evidence found during these searches was properly admissible.

4. Burden of Proof.

Jeter's argument that the trial court erred in requiring the government to prove consent only by a preponderance of the evidence is without merit. The Supreme Court has held that the burden of proof for voluntary consent is preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 & n. 14 (1974); see also United States v. O'Looney, 544 F.2d 385, 388 (9th Cir.), cert. denied, 429 U.S. 1023 (1976).

AFFIRMED.