Unpublished Disposition, 899 F.2d 19 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Helmut J. GALEHR, Defendant-Appellant.

No. 89-10007.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 22, 1989.* Decided March 19, 1990.

Appeal from the United States District Court for the District of Northern California; Robert P. Aguilar, District Judge, Presiding.

N.D. Cal.

REVERSED.

Before JAMES R. BROWNING, KOZINSKI and RYMER, Circuit Judges.


MEMORANDUM** 

* Galehr appeals his conviction for violating 18 U.S.C. § 472, prohibiting possession or concealment of counterfeit United States currency. He claims (1) the district court erred by not suppressing evidence which was the fruit of an unlawful seizure; and (2) the court erred in denying his motion for a new trial on the grounds that the jury had items before it during its deliberations which were not admitted into evidence.

II

At 12:02 a.m. on June 7, 1988, Officer Martin of the City of Marina Department of Public Safety received a radio dispatch stating that a service station employee had telephoned 911 to report "suspicious circumstances." The dispatch stated, "The subject came out to speak to the [service station] attendant about a car that's for sale on the lot. Attendant asked him for some I.D., subject got nervous and left. Subject described as a white male in his 30's, brown hair, wearing a black hat with a gold eagle and a black coat...." The dispatch also stated that the subject was on foot.

Martin drove toward the station and saw a person matching the description. He radioed for a repeat of the description and verified his initial observation. He then stopped his patrol car behind the defendant, stepped out of the car, and asked the defendant to put down his knapsack and step over to the car. Martin did a pat-down search of the defendant. He asked the defendant to lift his jacket to expose any weapons that might be concealed there.

Lieutenant Bates arrived to back up Martin. Martin asked the defendant for identification, and defendant said he did not have any. Defendant said his name was Jack Colton and that his birthday was Dec. 10, 1957. Martin was immediately suspicious because he believed the Anglo name was inconsistent with the defendant's German accent and because defendant appeared to be older than the stated age. Martin also thought it odd that a person who had attempted to purchase a car was not carrying a drivers license.

Martin requested a computer check on this name and birthdate. Neither the National Crime Information Computer nor the California Department of Motor Vehicles had any information on this name and birthdate in its files. Bates then asked defendant for identification, and asked defendant if he had wallets in his pockets. Defendant showed Bates a black wallet and a gray zipper pouch. He opened the pouch for Bates, and Bates saw paper currency. Because of the unusual color and the smooth paper, Bates suspected that the currency was counterfeit.

Another officer, Johnson, arrived on the scene, and the officers arrested defendant for suspicion of possession of counterfeit money, handcuffed him, and took him to the station. The district court made a finding of fact that the entire incident, from the stop of defendant to arrest, took four minutes.

Before trial, defendant's counsel moved to suppress evidence on the grounds that defendant was unlawfully seized and arrested. The court denied the motion, finding that the stop was not a seizure up until the defendant was handcuffed, and that the law enforcement officers' actions were justified by the circumstances.

A jury found defendant guilty. After the verdict, ten of the jurors said that three items not admitted in evidence were before the jury during deliberations: the defendant's black knapsack, the police inventory of defendant's property, and, concealed in defendant's wallet, a bill of sale for a motorcycle which was made out to Jack Colton.

The judge was informed that the jury had these items available to it. Defendant moved for a new trial, and the court denied the motion.

III

Whether there was founded suspicion to justify an investigatory stop is a mixed question of law and fact and requires de novo review. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988); United States v. Safirstein, 827 F.2d 1380, 1383 (9th Cir. 1987); United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir. 1987).

IV

Defendant claims that all the evidence admitted at trial should have been suppressed, as it was discovered as a result of an unlawful seizure.

Immediately after the officer stopped defendant on a public street and requested that he drop his bag and approach the patrol car, the officer conducted a cursory pat-down search of defendant's outer clothing. He also asked Martin to lift his jacket and expose his midriff, and the defendant complied.

A pat-down search is more intrusive than a stop for questioning. See Terry v. Ohio, 392 U.S. 1, 16-17, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); United States v. Thomas, 844 F.2d 678, 684-85 (9th Cir. 1988). In order to justify such an intrusion as reasonable under the fourth amendment, an officer must have an articulable suspicion that the person is involved in criminal activity, as well as an independent suspicion that the person is armed and dangerous. See Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) (citing Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); Terry, 392 U.S. at 21-24).

Martin had no reason to believe, as required by Terry, that "his safety or that of others was in danger" because defendant was "armed and dangerous." See Terry, 392 U.S. at 27. The officer's fear for his own safety does not, in itself, justify the pat-down; he must be able to articulate reasons for that fear. See Thomas, 844 F.2d at 683-84.

Here, as in Thomas, the crime defendant was ultimately connected with was nonviolent. Id. at 679-80 (individuals suspected of passing counterfeit bills). Defendant did not act in a hostile or threatening manner; he was cooperative during the entire encounter. Martin had no information indicating that defendant was armed. Cf. Adams, 407 U.S at 144-45. While Martin's caution was understandable, the information he was acting upon did not justify a pat-down under fourth amendment standards. Furthermore, the officer had no reason to believe defendant was engaged in criminal activity, which is required to justify a detention. Cf. Florida v. Royer, 460 U.S. 491, 501, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 556, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980).

With the initial stop of defendant, Martin was acting on a tip from a citizen, who called the emergency 911 number to describe an individual he suspected of criminal activity. The citizen, a gas station employee, stated that the suspect, who had been negotiating to buy a car, acted nervous and left hurriedly when asked for identification. Neither the informant, nor Martin, nor the other officers, at any point in the proceedings, articulated the type of criminal activity in which they suspected defendant was involved. The citizen merely reported a suspicious person; thus, the call did not justify Martin's belief that defendant was involved in criminal activity. Cf. Brown v. Texas, 443 U.S. 47, 48-49, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979); United States v. Chamberlin, 644 F.2d 1262 (9th Cir. 1980), cert. denied, 453 U.S. 914 (1981); United States v. Orozco, 590 F.2d 789, 792 (9th Cir.), cert. denied, 442 U.S. 920 (1979). The citizen's report of suspicious behavior and Martin's corroboration of the defendant's description were not enough to lead an officer reasonably to believe defendant was involved in criminal activity. Furthermore, defendant had left the station at the time Martin received the dispatch. Defendant did not pose any threat to the service station attendant at that point. Cf. United States v. Posey, 663 F.2d 37 (7th Cir. 1981), cert. denied, 455 U.S. 959 (1982); United States v. Johnson, 637 F.2d 532 (8th Cir. 1980).

The trial court erred in concluding that the defendant was not "seized" until he was handcuffed and arrested. The pat-down search was not justified by articulable suspicion that defendant was armed and dangerous, and the investigatory detention of defendant was not justified by an articulable suspicion that defendant was involved in criminal activity.

Because we reverse defendant's conviction on the grounds that the district court admitted critical evidence which should have been suppressed on fourth amendment grounds, we need not reach the issue of whether the district court properly denied defendant's motion for a new trial.

REVERSED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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