Unpublished Disposition, 885 F.2d 876 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 885 F.2d 876 (9th Cir. 1989)

No. 88-5443.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and NELSON, Circuit Judges, and EARL H. CARROLL,*  District Judge.

MEMORANDUM** 

Defendant Yusuff appeals his conviction, after a conditional plea of guilty, for possession of unauthorized access devices and possession of false identification. Yusuff claims that all evidence obtained as a result of his arrest should have been suppressed because it was the fruit of an illegal search of the contents of his private postal box. The conviction is affirmed. The evidence obtained as a result of Yusuff's arrest was not a fruit of the search of the postal box because the officers had sufficient independent information to supply probable cause for the arrest at the time it was made.

Yusuff was initially stopped for questioning on the basis of information obtained from the surveillance of the Fullerton Suite Boxes. This investigatory stop was justified if it was supported by a reasonable, articulable suspicion that Yusuff was engaged in criminal activity. United States v. Thomas, 863 F.2d 622, 625 & n. 3 (9th Cir. 1988). If this initial stop of Yusuff was proper, his subsequent conduct in fleeing from the scene in a panic--hitting into another car as he fled--provided sufficient additional facts to supply probable cause for his arrest. United States v. Costner, 646 F.2d 234, 236 (5th Cir. Unit A May 1981) (per curiam). Therefore, the crucial question in this case is whether the initial stop of Yusuff was justified; if it was, the arrest and subsequent warranted search of Yusuff's briefcase were all proper. The existence of reasonable suspicion is a mixed question of law and fact, subject to de novo review. Thomas, 863 F.2d at 625.

We conclude that, even disregarding any information obtained from the examination of the contents of Yusuff's private postal box ("box 213"), Detective Keffer had sufficient information to provide a reasonable, articulable suspicion that Yusuff was engaged in criminal activity.1  At the time Yusuff was stopped, Keffer knew the following information: (1) fraudulent credit cards had been mailed to box 213; (2) the letters containing the cards were very likely in box 213 (disregarding the search);2  (3) the renter of the box was a black man; (4) Yusuff was the first black man to go to the Fullerton Suite Boxes during the entire period of surveillance; (5) Yusuff arrived within 15 minutes of a call inquiring about any mail in box 213; and (6) Yusuff removed mail from a box in the vicinity of box 213; and (7) Yusuff had one or more envelopes in his hands as he left the building. We conclude that these facts provided sufficient information to create a reasonable, articulable suspicion that Yusuff was engaged in a crime, namely possession of fraudulent credit cards.

Although many of the items of information are by themselves innocuous, taken together they create enough suspicion to warrant further investigation. United States v. Sokolow, 109 S. Ct. 1581, 1587 (1989). Of particular significance is the fact that Yusuff arrived within 15 minutes of the phone call about box 213. This fact, taken together with the fact that Yusuff was the only person observed who might fit the description of the renter of box 213 and the fact that Yusuff removed mail from a box in that vicinity, creates a reasonable common-sense suspicion that Yusuff was the man who rented box 213 and who removed the stolen credit cards that, even apart from the search, Keffer would reasonably have believed were inside it.

Lastly, this conclusion is not undermined by the fact that Yusuff's race was one of the identifying features that contributed to a reasonable suspicion. This court has repeatedly held that, "although race or color alone is not a sufficient basis for making an investigatory stop, racial appearance may be considered as a factor contributing to a founded suspicion of criminal conduct." United States v. Fouche, 776 F.2d 1398, 1402-03 (9th Cir. 1985), cert. denied, 108 S. Ct. 1756 (1988); see also Thomas, 863 F.2d at 626 & n. 5.

CONCLUSION

Finally, we note that a $100 assessment was levied against the defendant under 18 U.S.C. § 3013. We have recently held this statute unconstitutional since it was enacted in violation of the origination clause. See United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988). Accordingly, we vacate the assessment imposed under this statute. See United States v. Anguiano, 873 F.2d 1314, 1321 (9th Cir. 1989). In all other respects, the judgment of the district court is affirmed.

Conviction AFFIRMED; sentence VACATED IN PART and AFFIRMED IN PART.

 *

The Honorable Earl H. Carroll, United States District Judge for the District of Arizona, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

It is irrelevant that the actual stop was performed by another officer so long as the officer who issued the request possessed a reasonable suspicion justifying the stop. United States v. Hensley, 469 U.S. 221, 232-33 (1985)

 2

Keffer knew that Security Pacific had mailed the letters on June 1 and knew the address to which it had mailed them. Therefore, even without the search, Keffer would have been justified in believing that, by June 6, the letters were probably in box 213