Unpublished Disposition, 863 F.2d 887 (9th Cir. 1986)

MEMORANDUM^* 

Following the denial of their motion to suppress, Appellants Claude and Mickey Shook each pleaded guilty to a single count of rape in violation of 20 U.S.C. § 2031. Both now challenge their convictions on the grounds that they were arrested without probable cause and that the district court abused its sentencing discretion.

On the afternoon of October 28, 1986, at approximately 4:00 PM, an off-duty national park ranger was assaulted and raped as she rode her bicycle in Sequoia National Park. The victim subsequently flagged down a passing motorist who drove her to a nearby campground telephone from which she reported the attack to the Tulare County Sheriff's Department. Shortly thereafter, the Tulare Police broadcase over the police radio a general description of the assailants, their truck, and the last reported direction of their escape.

McKinney, a part-time watchman and retired sheriff's deputy, overheard the dispatch. He radioed Tulare Deputy Kent that he was near the suspects likely escape route, and asked Kent if Kent wanted him to try and spot the truck; Kent assented. Shortly thereafter, McKinney observed a white truck matching the dispatch description driving erratically on the highway. McKinney noticed that the driver was apparently attempting to put his arm in the sleeve of his shirt while the passenger was looking backwards as if to see if anyone was following them. McKinney began following the speeding truck.

At approximately 4:45 PM, McKinney notified Kent that he was pursuing a speeding truck carrying two white males matching the dispatched description. Kent noted that the truck's position, as reported by McKinney, was consistent with the suspects' projected route of escape. Five minutes later, Kent overtook and stopped the truck on the side of the highway near Woodlake.

As Kent approached the vehicle and asked the occupants to get out, the passenger, Claude Shook, said "Don't shoot me. Don't shoot me." Kent further noted that the driver, Mickey Shook, had no shoes on and that Claude's t-shirt was inside out. Meanwhile, an officer from the Woodlake Police Department had arrived to assist Kent. Kent instructed Appellants to place their hands on the side of the truck and informed them that they were being detained because their truck matched the description of the vehicle driven by the suspects. When Mickey Shook made what Kent described as a "sudden turn to his right," safety considerations prompted Kent and the assisting Woodlake officer to handcuff Appellants and place them in the back seats of separate police cars. Kent stated that the Appellants were being detained until the rape victim could be brought to the roadside for identification purposes. By 5:00 PM, two other officers had arrived at the scene to provide assistance.

Back at Sequoia National Park, arrangements were being made to transport the victim to the roadside stop. After securing some items of evidence, as well as obtaining clothes and a counselor for the victim, Ranger Patee transported victim and counselor to the location of the roadside stop. The threesome left the Park Headquarters at around 5:40 PM, and, after encountering some traffic, arrived at the roadside stop at 6:15 PM. The victim subsequently identified Claude Shook as one of her assailants, but could not positively identify Mickey Shook. Thereafter, at around 7:00 PM, Appellants were taken into custody and transported to the Tulare County Jail. From initial stop to formal arrest, Appellants had been detained at the roadside for approximately two hours and ten minutes.

Appellants were each indicted for one count of rape, kidnapping, and sexual battery. Both suspects filed motions to suppress, alleging that the initial stop of their truck, as well as the length and scope of their roadside detention, violated their Fourth Amendment rights. In denying the motion, the district court held that Kent's personal observations, McKinney's relayed information, and Appellants' comments and physical appearance at the time of the stop created probable cause to arrest. Because of its ruling on the probable cause issue, the court found it unnecessary to address Appellants' other arguments.

After the denial of their motion to suppress, Appellants each entered into court-approved plea agreements in which they pleaded guilty to single count indictments for rape in violation of 8 U.S.C. § 2031, while reserving their right of appeal on the district court's denial of the suppression motion. The court then tentatively sentenced both Mickey and Claude Shook to life terms, pending a probation study by the Bureau of Prisons pursuant to 18 U.S.C. § 4205(d). Final sentencing was reserved until the conclusion of the three-month study.

At the resentencing hearing three months later, the court reviewed the sentencing reports of the Department of Justice and the Bureau of Prisons. In addition, the court heard testimony from Appellants' witness, a Fresno County Probation Officer, opining that had the Shooks been convicted under an equivalent California state statute, he would have recommended sentences of 7 years for Mickey Shook and 9 years for Claude Shook.¹  Because of the difficulties in comparing sentences under two separate statutory schemes, the district court ultimately determined that the witness' recommendations were "not helpful."

The district court thereafter imposed final sentences of life imprisonment on each Appellant--the maximum prison sentence available for rape convictions under 8 U.S.C. § 2031.

Appellants contend that the officers effected a warrantless arrest by handcuffing them and placing them in separate police cars, and that the district court erred in holding that at the time of the initial stop of the truck, Officer Kent had probable cause to arrest. The generality of the dispatch description and their own "ambiguous" conduct, Appellants assert, did not create sufficient cause for a warrantless arrest. We agree with Appellants that their roadside detention constituted an arrest under the Fourth Amendment. A review of the facts, however, supports the district court's ruling that Officer Kent had probable cause to arrest at the time of the stop.

For purposes of the Fourth Amendment, an "arrest" occurs when there is a show of official authority such that "a reasonable person would have believed that he was not free to leave." Florida v. Royer, 460 U.S. 491, 502 (1983); see also United States v. Pinion, 800 F.2d 976, 978-79 (9th Cir. 1986), cert. denied, 107 S. Ct. 1580 (1987); United States v. Beck, 598 F.2d 497, 500-01 (9th Cir. 1979). Moreover, the appropriate characterization of the detention turns on an evaluation of the surrounding circumstances, rather than the subjective intent of the officers involved. Beck, 598 F.2d at 500. Sitting handcuffed in the back seat of a police car surrounded by numerous officers, Appellants surely believed they were "not free to leave." See Royer, 460 U.S. at 502-03 (defendant was "arrested" when police retained his travel documents, led him to a nearby room, and never told him he was free to leave); see also United States v. Recalde, 761 F.2d 1448, 1456 (10th Cir. 1985) (investigative detention turned into de facto arrest when defendant involuntarily taken from highway and escorted to nearby police station); United States v. Marin, 669 F.2d 73, 81 (2nd Cir. 1982) (defendant "arrested" when gun-toting police blocked his car's progress and physically restrained him when he tried to walk away). While Appellants were not formally placed under arrest until after the victim's field identification, the length (just over two hours) and intrusiveness of their roadside detention made it tantamount to an arrest.

Appellants' roadside arrest, however, suffers from no Fourth Amendment taint as Officer Kent had probable cause to arrest at the time of the initial stop. Probable cause to arrest arises when police have facts and circumstances within their knowledge sufficient to warrant a prudent person in believing that the suspect has committed an offense. Guam v. Ichiyasu, 838 F.2d 353, 356 (9th Cir. 1988); United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.), cert. denied, 476 U.S. 1185 (1986) (citing Michigan v. De Fillippo, 443 U.S. 31, 37 (1979)). While some objective evidence should support the belief, consideration should also be given to the officers' experience and training. See McKenzie v. Lamb, 738 F.2d 1005, 1008-09 (9th Cir. 1984).

Applying these standards to this case, the information available to Officer Kent at the time of the initial stop fits comfortably within the range of what a "prudent person" would consider evidence of criminal activity. Appellants' physical characteristics and clothing closely matched the dispatched descriptions relayed to Officer Kent over the police radio. Except for a discrepancy in type of shirts, Mickey and Claude Shook appeared as described: two white adult males, one heavy-set and one skinny, sporting military-type haircuts and wearing blue jeans.

While Appellants correctly note that conformity to a general description, standing alone, does not necessarily establish probable cause, see Pinion, 800 F.2d at 979, Officer Kent relied on more than simply physical appearances when making the initial stop. Appellants' Ford truck not only matched the description of the suspects' vehicle, but was sighted by McKinney at a time and location consistent with the suspects' escape route. Moreover, the manner in which Appellants' truck was being driven (erratically and at high speed), as well as the actions of its occupants (glancing behind as if looking for pursuers), suggested flight from criminal activity. Finally, Claude Shook's exclamation when asked to get out of the truck--"Don't shoot me. Don't shoot me"--raised at least the inference of a culpable mind.

Taken together, the information available to Kent at the time of the stop compares favorably with facts found sufficient to support probable cause in other recent Ninth Circuit cases. See, e.g., id. at 979-80 (matching physical description of robber, citizen reports of suspicious man running through neighborhood near scene of the robbery, and defendant's refusal to look at passing police officer established probable cause); United States v. Fouche, 776 F.2d 1398, 1403-04 (9th Cir. 1985), cert. denied, --- U.S. ----, 108 S. Ct. 1756 (1988) (fact that defendant's shoes and pants matched victim description and defendant appeared nervous when questioned by police provided sufficient cause for warrantless arrest); United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984) (matching descriptions of defendants and their vehicle, sighting of vehicle in vicinity of robbery minutes after the crime, and defendants' evasive maneuvers supported finding of probable cause).

Appellants counter that Officer Kent's information should not be aggregated to establish probable cause. They contend that, individually, driving fast and exclaiming "don't shoot me" when approached by a police officer are each equally consistent with innocent behavior and therefore should carry no weight in the probable cause calculus. Yet even if correct in characterizing such conduct as ambiguous, Appellants' argument fails to take into account the fact that Kent was entitled to assess all of the surrounding circumstances in light of his law enforcement experience. United States v. Knox, 839 F.2d 285, 290 (6th Cir. 1988); Pinion, 800 F.2d at 980. When viewed in this light, Appellants' conduct supports an inference of guilt. Thus, the district court properly ruled that considered in aggregate, the information available to Kent at the time of the stop established probable cause for arrest.

For their rape convictions, the district court imposed Sec. 2031's maximum sentence of life imprisonment on Mickey and Claude Shook. Both men object on appeal that the district court exceeded the bounds of its sentencing discretion by failing to individualize their sentences. In addition, Mickey Shook contends that his life sentence was not constitutionally proportionate to his crime. Bearing in mind the limited nature of appellate review with respect to sentencing issues, see United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986) (sentencing by district court reviewed only for abuse of discretion); United States v. Hall, 778 F.2d 1427, 1428 (9th Cir. 1985) (appellate review of sentences "very narrow"), we find that the district court did not abuse its sentencing discretion. Appellants' life sentences were lengthy but not improper.

Appellants argue that the district court abused its discretion by mechanically applying the maximum sentence authorized under Sec. 2031. See United States v. Barker, 771 F.2d 1362, 1366 (9th Cir. 1985) (district court abused sentencing discretion when "overwhelmingly motivated by its assessment of the crime rather than an individual evaluation of each defendant"). Appellants charge that the district court, rather than assessing individual culpability, sentenced them "solely on [the] feeling that the crime was horrible and to send a message." Brief for Appellants at 10.

Appellants' assertions of mechanical application are without merit. The record reflects that the district court adequately considered and weighed the evidence relevant to sentencing. At the final sentencing hearing, the district court explicitly set forth the bases for Appellants' sentences. Among other things, the court noted that they: (1) had lay in wait before accosting the victim in a remote location, (2) showed little apparent remorse for their actions, (3) had subjected their victim to multiple physical and verbal attacks before leaving her partially clad by the side of a public highway, and (4) exhibited behavior which raised concerns about their recidivistic potential. Additionally, the judge expressed a desire to mete out a sentence of deterrence that would "let a message out" that such assaults would not be allowed to despoil the recreational atmosphere of the national parks.

Each of the factors weighed by the district court are permissible considerations for a sentencing court. See, e.g., Williams v. Oklahoma, 358 U.S. 576, 585 (1959) (judicial obligation to weigh all mitigating and aggravating circumstances); United States v. Meyer, 802 F.2d 348, 352 (9th Cir.), cert. denied, --- U.S. ----, 108 S. Ct. 71 (1986) (potential for repetition of the crime a relevant sentencing factor); Barker, 771 F.2d at 1368-69 (general deterrence an appropriate objective in imposing sentence so long as not the sole objective). Moreover, the very fact that the court considered these factors undercuts Appellants' argument that their sentences lacked individual tailoring. The district court's conduct and comments suggest no predisposition to sentence all rapists to the maximum authorized penalty. Rather, the court indicated that the particular circumstances surrounding this crime and these defendants motivated it to impose terms of life imprisonment.

Appellant Mickey Shook also argues that his sentence violates the Supreme Court's ruling in Solem v. Helm, 463 U.S. 277 (1983), that "a criminal sentence must be proportionate to the crime for which the defendant has been convicted." Id. at 290. Specifically, Mickey Shook contends that his sentence was disproportionate with respect to (1) sentences imposed on other offenders in the same jurisdiction, and (2) sentences imposed for commission of the same crime in other jurisdictions.

Neither of these contentions withstands scrutiny. First, Mickey Shook's sentence was not disproportionate with respect to the sentences imposed in the same jurisdiction. Mickey Shook selects his brother Claude's sentence as the sentencing referent, and asserts that his less culpable behavior should have been more leniently sentenced. The record suggests, however, that the district court was not unreasonable in its determination that both Appellants were equally culpable.²  Moreover, a sentence within statutory limits is generally not subject to appellate review. See, e.g., United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986); United States v. Meyer, 802 F.2d at 351.

Second, Mickey Shook's sentence was not disproportionate with respect to the sentences imposed for similar crimes in other jurisdictions. Shook contends that since defendants committing similar acts of rape under California law typically receive relatively short terms of imprisonment (ranging from 7 to 9 years), that his federal sentence was disproportionate for the crime committed.

This Circuit rejected a similar post-Helm attack in United States v. Meyer. In Meyer, a defendant convicted under federal law for importing obscene photographs sought to have his sentence harmonized with the sentence he would have received under a similar California statute. This court rejected such an argument, holding that the district court was "not required to reconcile appellant's sentence with the sentences that other courts have imposed on other defendants." Id. at 353; cf. Barker, 771 F.2d at 1367 (district court need not harmonize sentence with that of other district courts). Thus, the district court did not abuse its sentencing discretion in rejecting the comparative California sentencing recommendations offered by Appellants' sentencing witness.

Appellants' convictions and sentences are AFFIRMED.