Unpublished Disposition, 909 F.2d 1490 (9th Cir. 1990)

MEMORANDUM^** 

Police arrested Elray Wilson after a thirty-minute detention on the street and after relocation and interrogation in a police car. During interrogation and before arrest, Wilson admitted to the illegal possession of an unregistered firearm. After indictment and before trial, Wilson moved for suppression of his admissions. Wilson claims the detention and interrogation amounted to de facto arrest without probable cause. The district court denied Wilson's motion. Upon his conviction for illegal possession of an unregistered firearm, Wilson appeals the denial of his motion to suppress. We affirm.

DISCUSSION

Wilson argues that police relocation and detention of him in a police vehicle for questioning, if not prolonged police detention of him on the street, constituted a de facto arrest entitling his admissions to constitutional protections. See United States v. Baron, 860 F.2d 911, 915-916 (9th Cir. 1988), cert. denied, 109 S. Ct. 1944 (1989). We need not reach this issue, however, because we hold that probable cause supported Wilson's alleged de facto arrest. Where probable cause supports a de facto arrest, the arrest is legal. See id. at 917. Because police informed Wilson of his Miranda rights and because the alleged de facto arrest was legal, Wilson's constitutional objection should not have prevented admission into evidence of the statements Wilson made in the police vehicle. See id. at 917-918, United States v. Perez-Esparza, 609 F.2d 1284, 1288 (9th Cir. 1980).

The police had probable cause to arrest Wilson without a warrant if they knew when they placed him in the police car "sufficient facts to lead a prudent person to believe" that Wilson had committed or was committing a crime. Baron, 860 F.2d at 916. As in Baron, the factual starting point for probable cause in this case was Wilson's presence at the scene of criminal activity. Id. at 916-917. The neighbor's report to police that four black teenage males, two of whom were armed, were gathered at the site of a drive-by shooting established that the people on the porch were then likely engaged in criminal activity. Police reasonably surmised that the teenagers were arming themselves to retaliate for the earlier drive-by shooting in a common cycle of gang violence. When police arrived at the scene, four black males, including Wilson, descended from the porch onto the street with their hands up. During his interview on the street, Wilson told Officer Weatheroy he had arrived at the scene five or ten minutes before the police. Before the alleged de facto arrest, then, police could place Wilson at the precise scene of criminal activity reported by the resident.

To establish probable cause, of course, the police must have relied on more than Wilson's mere presence at the scene to connect him with that criminal activity. " 'In order to find probable cause based on association with persons engaged in criminal activity, some additional circumstances from which it is reasonable to infer participation in the criminal enterprise must be shown." Baron, 860 F.2d at 916-17, (quoting United States v. Howard, 758 F.2d 1318, 1320 (9th Cir. 1985) (per curiam)).

In Wilson's case, three circumstances permit a reasonable inference that Wilson participated in the criminal activity reported on the porch. First, and as Weatheroy concluded, Wilson must have been aware of firearms on the porch because a shotgun was in plain view when the police arrived. Wilson notes that this shotgun was not illegal per se. Whether the firearm was legal, however, is irrelevant to the inference that Wilson was engaged with the others on the porch in preparing for violent gang retaliation. The presence of the legal firearm taken alone arguably could have been consistent with innocent behavior, but when viewed in the totality of the circumstances, its presence could help a reasonable person to conclude that Wilson was preparing for gang retaliation. See United States v. Holzman, 871 F.2d 1496, 1504 (9th Cir. 1989). Moreover, the officers had found an illegal sawed-off rifle and a handgun concealed on the porch, in addition to the shotgun in plain view. Second, Weatheroy could have reasonably inferred that Wilson was present when the neighbor called and described four black males on the porch, two of whom were brandishing firearms. "One important consideration in assessing the significance of the association" in Wilson's case "is whether the known criminal activity was contemporaneous with the association." Howard, 758 F.2d at 1320, (quoting United States v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984) (emphasis in original)). In this case, Wilson came off the porch with his hands raised along with the other three people, two of whom matched the neighbor's description of those earlier brandishing firearms. Moreover, Wilson had told Weatheroy he had been on the porch five to ten minutes, an interval likely placing him on the porch during the resident's call. Third, Weatheroy knew Wilson personally and believed that Wilson was associated with a violent street gang. Significantly, then, Weatheroy based his treatment of Wilson and the ultimate alleged de facto arrest on Weatheroy's professional experience with Portland neighborhood gangs and his personal knowledge of Wilson's alleged involvement in those gangs. Under these circumstances, police could have reasonably inferred that Wilson had participated in preparation for armed gang retaliation just prior to the arrival of police. Police therefore had probable cause to arrest Wilson when they placed him in the police car for relocation.

CONCLUSION

Probable cause supported Wilson's arrest, whether it was de facto or not. The alleged arrest was therefore legal. Because the arrest was legal, Wilson has not shown that an infringement of his constitutional rights tainted the admissions he made while in custody in the police vehicle. We therefore affirm the district court's denial of Wilson's motion to suppress those admissions, and we affirm Wilson's conviction.

AFFIRMED.