Unpublished Disposition, 920 F.2d 937 (9th Cir. 1988)

MEMORANDUM^** 

FACTS AND PROCEEDINGS BELOW

Around 11:30 p.m. on December 27, 1988, the Grant County Sheriff's office received a complaint that two males in a white stretch limousine had brandished firearms on seven teenagers in a van. A few minutes later, Grant County Deputy Sheriff David A. Matney interviewed the youths at the Jackpot convenience store in Quincy, Washington.

The youths gave Deputy Matney the following account: Cruising around Ephrata, Washington in a van, the seven teenagers spotted a white stretch limousine with dark tinted windows--an uncommon sight in Ephrata--bearing the license plate number 730BOF. The teenagers followed the limousine down a highway that runs from Ephrata to Quincy because they thought it contained celebrities. After awhile, the limousine turned off the highway and pulled over and the van of teenagers stopped behind it. The driver of the limousine got out of the car and removed a rifle from the trunk. The youths described the driver as a large, white male with a moustache, wearing a sweater and slacks. At the same time, a short Hispanic male wearing a trench coat exited from the rear passenger door. This man took a pistol from his coat, approached the van and pointed the pistol at the youths. The youths hurried back to the highway, drove to Quincy and phoned the police.

The clerk at the Jackpot convenience store told Deputy Matney that she saw a white limousine drive past going westbound. Around 12:10 a.m. on December 28, 1988, Matney drove west on the highway; minutes later he saw a white stretch limousine turn off the highway and head south toward George, Washington. After following the limousine for a mile, Matney put on his lights and the limousine pulled over. The limousine's Washington license plate number was 750BQF.¹  On his own accord, the limousine driver rolled down his window and stuck his hands out. Using the public address system, Matney told the driver to exit the limousine, place his hands in the air, and walk backwards to the patrol car. Although the driver did not have a mustache, he generally matched the description given by the teenagers. Matney frisked the driver and asked him who else was in the limousine and whether there were any weapons in the vehicle. The driver responded that his girlfriend was in the front seat and that two clients were in the back of the limousine. He also stated that no weapons were in the limousine.

Matney placed the driver in the back of his patrol car. Using the same procedure as with the driver, Matney removed the driver's girlfriend from the front seat, and Mary Hecla and Christopher Leal, who matched the youths' description of the second male, from the rear seat. The occupants were frisked but no weapons were found. They all denied that there were any weapons in the limousine. The driver's girlfriend was placed in Matney's patrol car with the driver. Hecla and Leal were placed in the back of another patrol car that arrived to back up Matney.

Having removed all the occupants of the limousine, the officers opened the limousine's doors to make sure no other persons were inside. Finding the limousine unoccupied, Matney returned to his car and told the driver about the teenagers' complaint. He asked the driver for permission to search the limousine for weapons, advising him that he had the right to refuse and that his refusal would not be used against him. The driver replied that the limousine was private property and that he would allow the officers to search only if the limousine's owner consented. The Grant County dispatcher called the limousine's owner who orally consented to the search. After notifying the driver of the owner's consent, Matney asked for the driver's consent to search--again advising the driver of his right not to consent. The driver consented to the search, reading and signing a consent-to-search form. The officers did not ask the clients, Hecla and Leal, if they would consent to the search.

The officers first searched the driver's compartment and found nothing. Searching the rear passenger area, the officers discovered: (1) a black butterfly knife; (2) a semi-automatic pistol in a black shoulder holster, found underneath a seat; (3) part of a cocaine pipe with a white residue in it; and (4) Hecla's purse. Next the officers searched the trunk, opening it with an electronic button located in the glove box. Just before they searched the trunk, the driver told them that he forgot that he had a .30-.30 rifle in the trunk. The officers found the rifle in a rifle case and a box of ammunition. The trunk also contained personal luggage, automobile emergency supplies, and a blanket. The officers also discovered a semi-automatic pistol in a black shoulder holster and, after moving the blanket, a kilogram of cocaine. The officers secured the limousine and took its occupants to the police station, holding them for unlawfully displaying a weapon and possessing a controlled substance. Later that morning the officers obtained a warrant to search the limousine, and, along with other evidence, found another kilogram of cocaine.

Leal was charged with three counts: (1) possession of cocaine with intent to distribute; (2) use of a firearm during a drug transaction; and (3) being a felon in possession of a firearm. Hecla and the driver were also charged. All three defendants moved to suppress the evidence obtained from the search of the limousine. The government argued Leal had no standing to contest the search, the warrantless search was valid under the automobile exception, and the driver's consent validated the search. After a hearing, the District Court for the Eastern District of Washington denied the motion to suppress. The district court relied on the "automobile exception" to uphold the search of the limousine. See United States v. Ross, 456 U.S. 798 (1982). Leal entered a conditional guilty plea pursuant to Fed. R. Crim. P. 11(a) (2) and timely appealed.

ANALYSIS

The district court's finding of probable cause is reviewable de novo, United States v. Howard, 758 F.2d 1318, 1319 (9th Cir. 1985), as are its legal interpretations of the warrant automobile exception. United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). The government has the burden of proving an exception to the Fourth Amendment's requirement of a warrant by a preponderance of the evidence. United States v. Vasey, 834 F.2d 782, 785 (9th Cir. 1987).

A warrantless search of an automobile is permissible where officers have probable cause to believe that the automobile contains contraband. United States v. Ross, 456 U.S. 798 (1982). In Ross, the Supreme Court stated that "if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle." Id. at 825. The automobile exception applies in this case if the police had probable cause to search the entire limousine for contraband.

Deputy Matney and the other officers had probable cause to believe the limousine contained weapons. The youths gave Matney a fairly detailed account of two men exiting a white stretch limousine in rural Washington and pointing a rifle and a pistol at them. They provided general descriptions of the men's appearances as well as the license plate number of the limousine. Shortly after interviewing the youths and convenience store clerk, Deputy Matney spotted a limousine matching the given information just outside Quincy, Washington. Clearly Matney had reasonable suspicion to stop the limousine. Terry v. Ohio, 392 U.S. 1, 21-22 (1968). When the officers saw that the driver and Leal fit the physical descriptions, probable cause existed under the totality of the facts and circumstances to believe that the limousine contained weapons.

The automobile exception articulated in Ross applies to the officers' search of the limousine: the stop was lawful and probable cause existed to believe the entire limousine contained weapons. The police found a pistol in a holster stuffed under a seat in the rear compartment and a rifle in the trunk. Leal contends that once the rifle was found the officers could not search any further because they only had probable cause to believe the limousine contained a pistol and a rifle. In addition to these weapons, however, the officers discovered a knife in the passenger area; therefore they could search to ensure that no other weapons remained in the limousine. Furthermore, after the officers found the cocaine pipe with white residue, they had probable cause to believe the limousine contained cocaine.

The district court properly denied Leal's motion to suppress the evidence obtained from the search of the limousine. Because this Court affirms the district court's conclusion that the warrantless search was valid under the automobile exception, we need not consider the issues of whether Leal had a legitimate expectation of privacy in the limousine or whether the driver's consent was valid as to Leal.

AFFIRMED.