United States v. Jose Arturo Portillo-Reyes

EUGENE A. WRIGHT, Circuit Judge

(dissenting):

I am obliged to dissent. The majority opinion acknowledges that the government agents had reasonable ground for a “founded suspicion” that appellant’s automobile and its occupant were connected with the illegal entry of the four aliens. This, says the majority, “justified and rendered reasonable the agent’s window-tap invasion of Reyes’ privacy to ascertain his identity and to ask for an explanation of the suspicious circumstances.”

The opinion itself states that “[t]he decisions of this court are replete in establishing the doctrine [that] a ‘founded suspicion’ to stop for investigatory detention [can be] converted or ripened into a probable cause to arrest or search through the occurrence of after-the-stop facts and incidents.” But the opinion then says that the agents lacked proba *852 ble cause since they had not determined that the key found on Romero fit Portil-lo-Reyes’ car prior to the search. All of this is based on the premise that “the insertion of the key in the door of the Volkswagen to see if it fit constituted the beginning of the search.”

No authority is cited in support of this premise. Precedent seems to be to the contrary. In People v. Carroll, 12 Ill.App.3d 869 , 299 N.E.2d 134 (1973), cert. denied, 417 U.S. 972 , 94 S.Ct. 3180 , 41 L.Ed.2d 1144 (1974), it was held that

[n]o constitutional right, personal to the defendant, was violated when Officer Tillrock merely inserted the key [into the apartment door accessible from a common hallway] and learned that the tumbler could be turned by it.

299 N.E.2d at 139 .

It would have been a different case had the key been obtained in violation of some constitutional right of the defendant. ... Of course, the mere fact that a police officer has lawful possession of a citizen’s key does not confer an unlimited license to use it. However, the legitimate interests of proper crime investigation allow what was done in this case.

Id. at 140 (citations omitted).

We have held that police may inspect a vehicle for the limited purpose of ascertaining ownership on less than the probable cause needed to conduct a search, United States v. Brown, 470 F.2d 1120, 1122 (9th Cir. 1972), and that the mere checking of the serial number of an automobile by opening the door does not constitute a search within the prohibitions of the Fourth Amendment. Cotton v. United States, 1 371 F.2d 385, 393 (9th Cir. 1967); accord, United States v. Johnson, 413 F.2d 1396, 1400 (5th Cir. 1969), aff’d on rehearing en banc, 431 F.2d 441 (1970). Several state courts, including those of California and Washington, have reached similar conclusions. Mardis v. Superior Court, 218 Cal.App.2d 70 , 32 Cal.Rptr. 263, 267 (1963); State v. Brooks, 57 Wash.2d 422 , 357 P.2d 735, 738 (1960); People v. Shutter, 18 Ill.App.3d 855 , 310 N.E.2d 694, 695 (1974); People v. Hart, 75 Misc.2d 908 , 349 N.Y.S.2d 289, 291 (1973).

The insertion of the key into the door of the vehicle was a minimal intrusion, justified by founded suspicion and in furtherance of the legitimate interests of proper crime investigation, and did not constitute a search within the meaning of the Fourth Amendment.

Even if I were to agree with the majority that the insertion of the key into the door was the “beginning of the search,” nevertheless I conclude that the search was justified on the basis of probable cause.

The majority suggests, ante, p. 849, the district court’s failure to make specific findings of fact means that “we are left to our own search,” citing Beck v. *853 Ohio, 379 U.S. 89, 92-93 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964). In Beck , however, the Court found the record “meager, consisting only of the testimony of one of the arresting officers.” Id. at 93 , 85 S.Ct. at 226 . In this case, the suppression hearing produced 24 pages of testimony and one diagram. The record is hardly “meager.”

The district court is not required to make formal findings of fact at a suppression hearing. Gaither v. United States, 134 U.S.App.D.C. 154 , 413 F.2d 1061, 1077 (1969). 2 Therefore no negative inference can be drawn from its failure to make formal findings. Rather, we should apply the standard set forth in Ker v. California, 374 U.S. 23, 33-34 , 83 S.Ct. 1623, 1630 , 10 L.Ed.2d 411 (1963):

We reiterate that the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the “fundamental criteria” laid down by the Fourth Amendment and in opinions of this Court. .

While this Court does not sit as in nisi prius to appraise contradictory factual questions, it will, where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental — i. e., constitutional — criteria established by this Court have been respected.

The majority considers and rejects, as an alternative ground to justify arrest and search. Portillo-Reyes’ statement that he was going to Los Angeles, and that he was an El Salvadorian citizen. During the suppression hearing, the district court after viewing a diagram, agreed with the government counsel that Portillo-Reyes “was in the completely wrong place to be on his way to Los Angeles.” This factual finding, resolving conflicting versions of the parties, cannot be overturned unless clearly erroneous. Costello v. United States, 324 F.2d 260, 261 (9th Cir. 1963), cited with approval in United States v. Patterson, 492 F.2d 995, 996 (9th Cir. 1974). See also Ker, 374 U.S. at 34 , 83 S.Ct. 1623 . Here, since evidence would support a finding either way, it cannot be deemed clearly erroneous.

Accepting the district court’s finding of fact, one must also accept as reasonable the officers’ inference that Portillo-Reyes was lying as to his travel plans. See United States v. Martin, 509 F.2d 1211, 1213 (9th Cir. 1975). While it may be, as the majority suggests, that Portillo-Reyes’ responses were not “uncooperative,” they were at least in part deceitful.

The majority commits still greater error by failing to consider the evidence in this case as a whole. When probable cause is at issue, “each case necessarily turns on its own peculiar facts,” and “we must consider all the facts known to the officers and consider all the reasonable inferences that could be drawn by them before the arrest” or search. Martin, supra, at 1213 . (Emphasis in original.) While any single piece of evidence, considered in isolation, might be insufficient to establish probable cause,

[T]he succession of superficially innocent events [may proceed] to the point where a prudent man could say to himself that an innocent course of conduct [is] substantially less likely than a criminal one.

United States v. Patterson, 492 F.2d at 997 .

Applying these principles to the case before us, I note preliminarily that there are at least three pieces of evidence which even considered alone are not superficially innocent: the inferentially false statement by Portillo-Reyes as to his destination, and items (4) and (5) *854 ante, p. 849, listed by the majority as “suspicious circumstances.”

The majority, in the course of its opinion, recognizes other “specific articulable facts” but does not rely on them on p. 8 as supporting “reasonably warranted suspicion.” These are:

(a) close, proximity (approximately 50 feet) from the border, see Patterson, 492 F.2d at 996 ;

(b) the experience of the agents that the use of a nearby load car was common modus operandi in smuggling female aliens, see Patterson at 997 ;

(c) Portillo-Reyes’ response that he was a citizen of El Salvador; and

(d) the agents’ prior knowledge that the three female aliens were El Salvadorian.

When these facts, albeit individually not suspicious, are combined with those identified in the next preceding paragraph, I conclude that “in the [district court’s] decision as to reasonableness the fundamental — i. e., constitutional — criteria ... have been respected.” Ker, 374 U.S. at 34 , 83 S.Ct. at 1630 . I also conclude that here “a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.” Patterson, 492 F.2d at 997 .

I would affirm.

. In Cotton , the defendant had been initially arrested for “disturbing private places.” Prior to that arrest, the arresting officer had entered defendant’s car and had searched it, looking for registration and for weapons, but had found none. After the arrest an officer remained at the scene until a tow truck came to take defendant’s car to the police impound. As a matter of procedure, he made out a “tow slip” on which he included the serial number of the car. The officer had obtained the serial number by opening the left front door of the car and looking at the door post, which became visible when the door was open.

After the police had been given reason to believe that defendant had stolen the car, the F.B.I. was notified. At the police impound lot an F.B.I. agent opened the door of defendant’s car to check the serial number, not for inventory purposes as had already been done, but in order to determine if in fact the car had been stolen.

Defendant contended that the examination of the vehicle in the police impound lot was an unlawful search, and that the use of the information thus obtained, i. e., the serial number of the vehicle which was used as evidence against him at trial to prove that the car had been reported stolen, should not have been allowed.

This court, per Judge Duniway, held that since none of the contents of the car was used as evidence against him, but rather only the serial number which was part of the car, this was quite different from looking for evidence that may have been placed in the car by its possessor, and thus did not constitute a search.

. Fed.R.Crim.P. 41(f) provides that motions to suppress will be made in accordance with Fed. R.Crim.P. 12. Rule 12(b)(4) provides: “. . issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct.”