Unpublished Disposition, 872 F.2d 431 (9th Cir. 1989)

FARRIS, Circuit Judge dissenting:

Jorge Guerra appeals from a judgment of conviction for robbery of a savings and loan association in violation of 18 U.S.C. § 2113(a). Guerra was convicted after he conditionally pleaded guilty pursuant to Fed. R. Crim. P. 11(a) (2). He claims the district court improperly denied his motion to suppress evidence. The court reverses, but disagrees on the ground for reversal. Judge Reinhardt believes that the amount of force used by the police transformed the stop into a full-scale arrest for which probable cause is required. Judge Norris believes that the police lacked reasonable suspicion to justify stopping the car that Guerra was driving. Because I believe that the force used was a manifestly reasonable response to an apparent threat to police and public safety and that the police had reasonable suspicion for the stop, I dissent.

FACTS

Early one afternoon, a Ventura County savings and loan was robbed. Within five minutes, the Ventura County Sheriff's department put out a radio call describing the robber as a 25 year old male Mexican with a light complexion and a small build, wearing a gray jacket and having a tattoo on his arm. The radio call also said the robber was driving a 1960's model blue two-door Chevrolet. Deputy Sheriff Patrick Mac Auley heard the call and went to a sparsely traveled road he thought would be a likely getaway route.

About ten minutes after the robbery--the amount of time it would take to drive from the bank to where Mac Auley was waiting--Deputy Mac Auley saw a 1960's model blue two-door Chevrolet coming from the direction of the savings and loan. Mac Auley followed the car into a residential neighborhood and called for reinforcements. The car appeared to be driven by a male accompanied by several passengers. When reinforcements had arrived, Mac Auley decided to make a "high risk stop." Mac Auley turned on his cruiser's flashing red lights and the blue Chevrolet pulled over. Mac Auley parked behind the car, and several other police vehicles parked next to and behind him. Five or six police officers pointed their guns at the Chevrolet. Mac Auley ordered the driver, Guerra, to get out of the car, pull his shirt up, and then put his hands over his head and walk backwards toward a sheriff's car. Officers noticed that Guerra had a tattoo on his right arm. They frisked Guerra and found no weapons, but a wad of money fell from the waistband of Guerra's pants. Guerra was placed under arrest.

DISCUSSION

The so-called "high risk stop" did not involve excessive force, and therefore did not constitute an arrest. Police officers with grounds for making an investigative stop are justified in employing greater than normal force in order to ensure the safety of themselves and bystanders. See United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir. 1986). The questions with which the court should be concerned are (1) whether the objective circumstances as they reasonably appeared to the officers at the time of the initial stop presented a real threat to police or public safety, and (2) if so, whether the officers' conduct was a reasonable response. See, generally, United States v. Jacobs, 715 F.2d 1343 (9th Cir. 1983); United States v. Robertson, 833 F.2d 777, 781 (9th Cir. 1987).

Deputy Mac Auley's belief that Guerra presented a real threat to the police, the passengers in his vehicle, and to nearby residents was reasonable. Mac Auley received a report that a man had just robbed a bank and was fleeing by vehicle. Although there was no report that the suspect was armed, that fact is not controlling. It was an entirely reasonable inference that a man who demanded money from a bank was equipped to back up his threats with actual force. The bank tellers who cooperated with this suspect, and are routinely instructed to do so as a matter of policy, did so precisley because experienced bank employees and managers share the common sense assumption that bank robbers are dangerous.

To hold that Officer Mac Auley's belief was unreasonable would severely undermine the ability of police to protect themselves and the public. It would mean that regardless of the circumstances, police could not use safety precautions during a stop unless the suspect is expressly reported to be armed or the police actually observe a weapon. The danger of such an approach is obvious. Whether a suspect is armed may not be known when an emergency radio bulletin is issued. By the time police actually observe a weapon, it may be too late for safety precautions. Officer Mac Auley and his colleagues had ample grounds to fear for their own safety and the safety of Guerra's passengers when they chose to stop Guerra.

The force employed by the police as a safety precaution was not excessive. The officers' display of weapons was a reasonable and highly effective means of discouraging any ideas Guerra might have had about forceable resistance. At the same time, displaying weapons decreased the likelihood that any one of the officers would have to use his weapon. A less cautious approach might be an invitation to disaster. If Officer Mac Auley had alone attempted to detain the suspect at gunpoint, he would have presented Guerra with more tempting odds. An individual unwilling to take on a handful of armed police officers might nonetheless prefer his chances against a single officer to the prospect of a substantial prison term.

On the other hand, it would have been foolish for Officer Mac Auley to attempt a routine traffic stop without readying a weapon or engaging in any other show of force. Although it appears in hindsight that such a trusting approach might have proved both safe and effective, from all that appeared to Officer Mac Auley at the time he first encountered Guerra's vehicle, he faced the prospect of confronting a suspected bank robber and three potential accomplices. Regardless of what rule we adopt, few police officers will take on such a risk without reinforcements and the display of weapons.

Another option which Officer Mac Auley could have employed was to let the suspected getaway vehicle drive on unaccosted. To hold that Officer Mac Auley was required to do so would be tantamount to holding that Terry v. Ohio, 392 U.S. 1 (1968), itself has no application to dangerous situations where no weapon has been observed or reported. In such cases the police would not be permitted to intervene at all, (1) until founded suspicion ripens into probable cause, or (2) unless they have a wrong-headed indifference to personal and public safety. I find no authority for such an evisceration of Terry.

Since the stop of Guerra was not an arrest, it is only necessary to consider whether the police had sufficient grounds to conduct an investigative stop. Under Terry, police officers have adequate grounds to stop a moving vehicle "if under the totality of the circumstances, they are aware of articulable facts leading to a reasonable or founded suspicion that the person has been, is, or is about to be engaged in criminal activity." United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir. 1985) (citing Terry, 392 U.S. at 22).

The information available to officer Mac Auley before he stopped Guerra's automobile was more than adequate to support a "reasonable suspicion" that the driver was involved in the robbery of the savings and loan. The police report described the robber as a young male Mexican driving a blue, 1960's model two-door Chevrolet. Just ten minutes after the robbery, Officer Mac Auley spotted a car and driver matching that general description traveling down a seldom-used road in a direction away from the scene of the crime. The sighting occurred at about the spot where a car would be had it left the savings and loan immediately after the robbery.

There was not a precise match between the car and driver spotted by Officer Mac Auley and the description given by the police report. First, the robber was described as being alone, whereas Guerra was accompanied by passengers. Also, the police report described the getaway car as a Chevy Impala, whereas Guerra was driving a Chevrolet Malibu. Such slight discrepancies, however, were outweighed by the similarities, and are insufficient to negate founded suspicion. In United States v. Winsor, 816 F.2d 1394, 1398 (9th Cir. 1987), vacated on other grounds, 846 F.2d 1569 (9th Cir. 1988) (en banc), we stated that " [a] good but imperfect description narrows the range of vehicles sufficiently to permit the legal conclusion that reasonable suspicion exists with respect to each car remaining within the suspect range." In this case, the police description narrowed the range of suspect vehicles to blue Chevrolets within a close radius of the crime scene. The suspect class was also limited to cars approximately 20 years old. Founded suspicion existed with regard to every vehicle within that narrow class.

The police stopped a car they reasonably suspected was being driven by a bank robber. They reasonably believed the suspect was dangerous, and they used reasonable precautions to protect themselves and the public. This was effective and constitutionally-permissible police work. I would affirm.