United States v. Bigsby

145 F. App'x 595

Opinions

MEMORANDUM

Footnotes

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The United States appeals a pre-trial ruling by the district court granting defendants Jeffrey Rigsby’s and Sam Sadis’s motion to suppress evidence obtained in violation of the Fourth Amendment. Bigs by and Sadis were arrested and charged with conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846, and with possession with intent to distribute marijuana in violation of 21 U.S.C. § 812. We have jurisdiction pursuant to 18 U.S.C. § 3731, and we affirm. We review determinations of reasonable suspicion de novo and findings of historical fact for clear error, giving due weight to “inferences drawn from those facts by resident judges and local law enforcement officers.” United States v. Ornelas, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).¹

The government argues that the district court failed to consider the “totality of the circumstances” when concluding that Officer Pribble lacked reasonable suspicion to stop Bigsby’s Toyota pick-up truck. Id. at 696, 116 S.Ct. 1657. The record shows, however, that the district court’s factual findings encompassed all the relevant facts and background information, and that the court based its legal conclusion on the “totality of the circumstances.” Although the district court agreed that there was sufficient suspicion to stop the Taurus that Officer Pribble had been following, the court concluded that the “zone of suspicion” surrounding the Taurus, standing alone, was insufficient to establish reasonable suspicion to stop Bigsby’s Toyota. Reasonable suspicion requires a “particularized suspicion ... that the particular individual being stopped is engaged in wrongdoing.” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Here, there was no “particularized” conduct by the driver and passenger in the Toyota to signal their connection to the Taurus or involvement in criminal activity.

The government also contends that the district court’s ruling is inconsistent with United States v. Garcia-Rodriguez, 558 F.2d 956, 964 (9th Cir.1977). We disagree. In Garcia-Rodriguez, we found reasonable suspicion to stop “any of the covered vans” leaving a private warehouse located “near the border in an area with a high incidence of contraband smuggling.” Id. at 964. The warehouse was placed under surveillance by border patrol agents after a tractor had twice crossed the border, deviated from its declared route, and driven instead to the warehouse. While conducting the surveillance, agents could see a “procession of automobiles” coming and going. Id.

Garcia-Rodriguez does not apply to the facts at issue here. Agent Pribble stopped Bigsby and Sadis in a public parking lot in plain view from the road, which was not near the border or located in a high-crime area. Moreover, the officers did not see the Toyota arrive or even enter the “zone of suspicion” around the Taurus. Finally, Pribble’s reasonable suspicion related to a specific car — the Taurus — and not a general location, such as a private warehouse. In light of the facts here, there was no reason for the officers to impute suspicion to any car other than the Taurus.

As the Court stated in Illinois v. Wardlow, “an individual’s presence in an area of expected criminal activity, standing alone, is insufficient to support a reasonable suspicion that this person is committing a crime.” 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Here, the fact that Pribble noticed Bigsby backing his car out of a public parking lot in which a suspicious car was stopped is simply not enough to support a “particularized suspi cion” of the Toyota or its occupants. To conclude otherwise would be to “drawr into the law enforcement net a generality of persons unmarked by any really articulable basis for reasonable suspicion” — a practice this court has repeatedly warned against. United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir.2002).

The district court correctly concluded that under the “totality of the circumstances,” the facts of this case are insufficient to support Pribble’s stop of Bigsby’s Toyota.

The judgment of the district court is therefore AFFIRMED.

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.

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. Because the parties are familiar with the facts, we reference them here only as they are necessary to explain our decision.