Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 30 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Joe Martinez GONZALEZ, Defendant-Appellant.

No. 89-50450.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.* Decided March 29, 1991.

Before GOODWIN, HUG and FARRIS, Circuit Judges.


MEMORANDUM** 

Joe Martinez Gonzalez appeals his conviction and sentence for armed bank robbery in violation of 18 U.S.C. § 2113(a). We affirm.

While on patrol, San Gabriel Police Officers William Hudson and Kevin Watson spotted two young men seated in a Mercury Cougar in the driveway of a condominium that had once suffered a rash of burglaries.

When Officer Hudson executed a U-turn and pulled his marked patrol car closer to the complex, the Mercury Cougar immediately pulled out of the condominium and started south on Del Mar Avenue. As he followed the vehicle, Officer Hudson noticed that it bore Arizona license plates. He did not recall ever having seen a vehicle with out-of-state license plates in the driveway of that particular condominium complex. He continued to follow the car east on Valley Boulevard and radioed his department to check for any burglaries reported from the Del Mar complex. As the end of his area of jurisdiction drew near, Officer Hudson decided to drive alongside the Mercury Cougar. From this new vantage point, the occupants of the Mercury appeared nervous and under stress. Officer Hudson was also struck by their refusal to look at him or at each other for a two-block distance. He signalled for them to stop.

Raymundo Cota, the driver, failed a field test for opiate use and was arrested. Officer Hudson then approached Gonzalez, who remained seated on the passenger side of the car and who also exhibited signs of opiate use. Officer Hudson immediately observed large white spots on Gonzalez' neck. He recalled that a witness to an armed robbery that had taken place the day before at the First Interstate Bank in San Gabriel had described the suspect as having such spots, and he concluded that Gonzalez closely resembled a composite sketch he had seen of that suspect. Gonzalez was also placed under arrest for being under the influence of opiates.

During an inventory search, Officer Watson discovered a tan jacket in the trunk of the impounded Mercury Cougar. He recalled that the bank robbery suspect's jacket was reported to be tan. The detective bureau commander arrived at the scene and noticed tattoos on Gonzalez' neck where the white spots had been. Officer Hudson concluded that Gonzalez had used a white powder or makeup to conceal the tattoos.

Following his indictment, Gonzalez moved to suppress evidence pertaining to the white spots. He maintained that the evidence was obtained pursuant to an unconstitutional investigatory stop. Whether the district court properly denied his motion presents the first question in this appeal. We review this question de novo. See United States v. Thomas, 844 F.2d 678, 680 (9th Cir. 1988).

We reject Gonzalez' claim that the brief investigatory detention amounted to an unreasonable search in violation of the fourth amendment. The totality of the circumstances shows that the detaining officer's suspicion was reasonably supported by specific, articulable facts. See Hayes v. Florida, 470 U.S. 811, 816-17 (1985); United States v. Sharpe, 470 U.S. 675, 682 (1985); Thomas, 844 F.2d at 681.

Officer Hudson's memory that the complex had been the scene of earlier burglaries made him notice the two young men sitting in the car. When he made his U-turn and headed back toward the condominium complex, he could reasonably treat the quick departure from the driveway as a possible effort to avoid further inspection by police officers. A furtive act whets constabulary curiosity, and it should. A belief that the driver of the car wished to avoid police contact could make an officer wonder why. Later the officer observed that the car had an out-of-state license plate. It is common knowledge among California police officers that resident motorists sometimes try to avoid California's sales taxes and comparatively high license fees by driving automobiles registered in states which exact lower charges for automobile use. Further examination of foreign-licensed cars by cruising police officers is not uncommon, and when such further examination appears to provoke flight or furtive action, suspicion becomes reasonable. Officer Hudson therefore had an articulable suspicion that crime was afoot when the driver became aware of renewed police interest and avoided eye contact while proceeding toward the city limits.

We are not compelled by United States v. Hernandez-Alvarado, 891 F.2d 1414, 1418-19 (9th Cir. 1989), to reject this last justification for the stop. In Hernandez-Alvarado, the defendant and his passengers sat in silence and stared straight ahead when the patrol car pulled alongside their vehicle. Id. at 1415. We concluded that that fact, taken in context, simply "describe [s] too many individuals to create a reasonable suspicion that [the] particular defendant [was] engaged in criminal activity." Id. In Hernandez-Alvarado, however, there was nothing to explain the suspects' curious behavior other than the fact that they were being followed by the police. Here, by contrast, the behavior of Gonzalez and Cota came not merely in the context of being followed; Gonzalez and Cota were idle in the driveway of a once-burglarized condominium complex where it was reasonably believed they did not reside, and, furthermore, they drove away immediately after they spotted police officers make a turn to observe them further. There was a reason for the investigating officers to believe that the appearance and behavior of the suspects connoted the guilty actions of criminals caught in the act.

After his conviction, Gonzalez refused to discuss the details of the bank robbery with his probation officer. Because of that, the probation officer recommended against granting Gonzalez a two-point reduction for acceptance of responsibility pursuant to Section 3E1.1 of the Sentencing Guidelines. The trial court accepted the probation officer's recommendation without discussion. Gonzalez now argues that denying the adjustment violated his fifth amendment privilege against self-incrimination.

Section 3E1.1 calls for a two-point reduction of a defendant's offense level, " [i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." On its face, Sec. 3E1.1 requires some degree of self-incrimination.

Nevertheless, Gonzalez argues that his acceptance of the verdict compelled a reduction, not because it necessarily manifested a clear recognition and acceptance of responsibility for his crime, but because requiring more evidence than the mere acceptance of a guilty verdict would violate his right against self-incrimination. First, by "acceptance of the verdict," we assume that Gonzalez means agreement not to appeal. Second, we do not understand Gonzalez to complain that the de facto pressure that Sec. 3E1.1 places on a defendant to admit his guilt prior to trial offends the fifth amendment, an argument we have at any rate rejected. See United States v. Gonzalez, 897 F.2d 1018, 1020-21 (9th Cir. 1990). Rather, we understand Gonzalez to suggest that the de facto pressure that Sec. 3E1.1 places on a defendant to incriminate himself for a particular crime once he has already been convicted is unconstitutional. This argument is meritless.

AFFIRMED.

HUG, Circuit Judge, Concurring Separately:

I concur based on other grounds. I have doubts about whether the stop was justified by founded suspicion, but I conclude that any error in declining to suppress the evidence was harmless. A constitutional error is harmless when it is clear beyond a reasonable doubt that, if the jury had not considered the tainted evidence, its decision would have been the same based on the remaining evidence. United States v. George, 883 F.2d 1407, 1417 (9th Cir. 1989) (quoting LePage v. Idaho, 851 F.2d 251, 253 (9th Cir.), cert. denied, 488 U.S. 972 (1988)).

The only items of evidence derived from the stop were the evidence of white spots on Gonzalez' neck, the jacket found in the car, and the post-arrest photograph. These three items were inconsequential, considering the other evidence at trial: a positive identification by the victim teller that Gonzalez was the robber; a police description that matched Gonzalez; a surveillance photo taken as the robber left the bank; extensive testimony about tattoos on the robber's neck, hands and wrists; and, finally, post-arrest statements by Gonzalez regarding the robbery. Gonzalez objected to none of this evidence. The identification of Gonzalez himself cannot be considered the "fruit" of an illegal stop. See United States v. Crews, 445 U.S. 463, 474 (1980). Therefore, even if the district court's decision to uphold the stop was erroneous, the error was harmless beyond a reasonable doubt because of the other overwhelming evidence.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 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 Ninth Circuit Rule 36-3