Unpublished Disposition, 917 F.2d 29 (9th Cir. 1990)

MEMORANDUM

White and Watts conditionally pled guilty in district court to possession with intent to distribute approximately 75 pounds of marijuana in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (D). They preserved the issue of whether the district court properly denied their motion to suppress evidence. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

The government contends that White does not have standing to challenge the search. [White Red 9-10] However, the record does not indicate that this issue was raised in the district court. Because of "the failure of the Government to present adequately this argument before the district court, we decline now on appeal to address the Government's standing arguments." United States v. Emens, 649 F.2d 653, 656 n. 4 (9th Cir. 1980).

White and Watts both argue that (1) the police did not have a "reasonable and articulable" suspicion when they stopped the car occupied by White and Watts; and (2) probable cause did not exist for their arrest. Thus, they argue, the subsequent consent by them to look in the trunk with the resultant seizure of the marijuana was "tainted." See Wong Sun v. United States, 371 U.S. 471 (1963).

The district court's conclusion that founded suspicion existed for the stop is reviewed de novo. United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir. 1985). We review for clear error the findings of fact on which the district court based its conclusion that reasonable suspicion for a stop did exist. Id.

The police may make a "brief investigatory stop of a moving vehicle, consistent with the requirements of the fourth amendment, 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." Id. At the time the stop was made, the agents possessed a substantial body of information from which they had a reasonable suspicion that White and Watts had just participated in a drug transaction. The record reflected (1) activity at the suspect house consistent with the conduct of a drug business [RT 2/10 at 18]; (2) utilities for the suspect house were paid by a suspected drug dealer [id. at 79-80]; (3) substantial vehicular activity at the house [id. at 26]; (4) counter-surveillance activities were conducted by the occupants of the house [id. at 71]; (5) the car of White and Watts was observed pulling into the garage, and the garage door was then closed. A short time later, the car backed out of the garage and left the area [id. at 20, 36]; and (6) another car pulled in shortly thereafter and the same procedure was followed [id. at 65-66]. Any one of these factors is not indicative of illegal conduct, but taken together they amount to reasonable suspicion. See United States v. Sokolow, 109 S. Ct. 1581, 1586 (1989) (Sokolow) . Thus, the district court did not err in determining that reasonable suspicion existed.

White and Watts also contend that their detention by the agents was so intrusive as to be deemed an "arrest." White cites Florida v. Royer, 460 U.S. 491 (1983), for this proposition. In Royer, the defendant was asked at an airport terminal to accompany the agents to a room approximately 40 feet away. Id. at 494. Approximately 15 minutes had elapsed from the time the detectives initially approached the defendant until his arrest upon the discovery of the contraband. Id. at 495. The Court held that this involuntary detention exceeded the allowable limited restraint. Id. at 507.

No such situation exists in this case. White and Watts were never taken away from the area around their car. They were only detained momentarily until consent to search was given and the marijuana was discovered in the trunk. In evaluating the officer's decision, we need not determine whether there were less intrusive investigatory techniques. See Sokolow, 109 S. Ct. at 1587. This situation does not exceed the limitations imposed by the Supreme Court. Because reasonable suspicion existed for the stop and there followed a voluntary consent to search, we do not need to determine whether probable cause existed. Consequently, the "tainted" consent argument also fails.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.

WIGGINS, Circuit Judge, dissenting.

I respectfully dissent.

Although the issue is a close one, my review of the record does not justify the conclusion reached by my colleagues that the trial court did not err in finding that a reasonable suspicion existed for the stop and search of appellants' car.

The police elected to stop appellants' car because it had recently been parked at a residence where drug activity was suspected. The police had no other factual basis for focusing suspicion on these appellants. It is true that the police had over a year's time accumulated other evidence that might have justified a search of the residence or perhaps justified a stop and search of its regular occupants. But appellants are not in that category of persons. They simply stopped, evidently for the first time, at the residence, parked in the garage briefly, and then left. On de novo review, I do not find such slim evidence to be sufficient to justify reasonable police suspicion of these appellants.

Because I conclude that the initial stop was improper, I must consider the effect of appellants' subsequent consent to the search undertaken by the police.

Under certain circumstances, voluntary consent to a search will purge the taint of an unconstitutional action by law enforcement officers. See U.S. v. George, 883 F.2d 1407 (9th Cir. 1989) (consent to search ineffective to overcome illegal arrest), United States v. Wellins, 654 F.2d 550 (9th Cir. 1981) (consent to search effective in overcoming illegal arrest). To be effective, voluntary consent must be "sufficiently an act of free will to purge the primary taint of the unlawful invasion." Wong Sun v. United States, 371 U.S. 471, 486 (1963), cited with approval in Wellins, 654 F.2d at 553. Three factors are analyzed in determining the sufficiency of consent. They were first discussed by the Supreme Court in Brown v. Illinois, 422 U.S. 590 (1975) which involve statements made by a defendant after being illegally arrested. In determining whether the statements were an act of "free will," the court reasoned that temporal proximity of the statements to the misconduct, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct are relevant. Id. at 603-04. The Ninth Circuit has adopted these factors in consent to search cases. George, 883 F.2d at 1415-16, Wellins, 654 F.2d at 553.¹ 

First, the appellants' consent was given in close temporal proximity to the officers' illegal stop, as not more than a few minutes had passed. Case law makes clear that to be effective consent must be removed from the unconstitutional act by a longer period of time. For example, in George, the defendant's consent was given approximately an hour after the illegal arrest, and the court reasoned that an hour was insufficient time to purge the taint of the illegal arrest. George, 883 F.2d at 1416 ("As best we are aware, no court has weighed [the proximity factor] against a defendant when his [voluntary act] followed illegal police conduct by only a few hours.") In the instant case, there was simply not enough time between the illegal stop and appellants' consent to render the search valid.

Second, there were no significant intervening factors. The officers' search of the appellants' vehicle took place shortly after the illegal stop of the car. In George, before giving consent, the defendant was transferred to a hospital for treatment of injuries incurred during the illegal arrest. The court held this intervening factor to be insufficient to purge the taint of the illegal arrest. Id. at 1416. In light of George, there was clearly no intervening incident, as the appellants were simply stopped by the officers and questioned before giving consent. An effective intervening circumstance requires a much higher standard. See Wellins, 654 F.2d at 555 (where defendant spoke with an attorney prior to his giving consent the court found an effective intervening circumstance).

Third, the illegal stop made by the officers in the instant case was not particularly flagrant. This factor seems to weigh in favor of valid consent. However, there was evidence that other officers who arrived on the scene blocked the appellants' car such that they could not leave. Because the first two Brown factors weigh heavily in favor of invalid consent, the nature of the illegal conduct here will not overcome them. See George, 883 F.2d at 1416 (" [T]his third factor does not weigh sufficiently against appellant to overwhelm the other two factors which weigh so clearly in his favor.").

My analysis of the Brown factors leads me to the conclusion that appellants' consent to the search of the vehicle did not purge the taint of the officers' illegal stop. The search was thus illegal. I would reverse and remand the convictions to the district court for a new trial.