United States v. Donnelly

6 F. App'x 618

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 13, 2001
• Docket: No. 00-30069; D.C. No. CR-99-00162-A-JKS
• Status: Published

Opinions

MEMORANDUM¹

We have jurisdiction over the government’s interlocutory appeal pursuant to 18 U.S.C. § 3731 and we reverse the district court’s ruling suppressing evidence because it held that the stop and search was illegal.

I.

The propriety of a Terry stop is reviewed de novo. United States v. Fuentes, 105 F.3d 487, 490 (9th Cir.1997). Although it is a close case, we conclude that the Anchorage Police Department (“APD”) had reasonable suspicion to stop and search Donnelly.² Pursuant to the Fourth Amendment, “[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To meet this standard, the officer must point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” Terry, 392 U.S. at 21. In the case of a police radio dispatch, even though the officer who relies on the dispatch need not have knowledge of the basis of the report, the dispatcher must possess reasonable suspicion before directing the officer to make a stop. United States v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Robinson, 536 F.2d 1298, 1300 (9th Cir.1976).

The dispatch officer knew the following facts at the time the dispatch was made: A student at Service High School was seen in a car which was slowly circling the school grounds, and he was believed by school authorities to have a weapon, even though they had not seen him with a gun. The dispatch officer also knew that this student’s behavior had caused the school such great alarm that they decided to involve the police, and had asked for immediate assistance.

We hold that, based on the totality of the circumstances, these facts were sufficient to support a Terry stop and search. The informant was a reliable source — a school official — whose credibility was not challenged by the defendant. Although the dispatch officer knew that the informant had not seen the student with a gun, she had been told by this reliable source that school security officials were greatly alarmed by the student’s presence and suspicious behavior. Although this is a close case, these facts are analogous to other cases in which we held stops and searches to be legal. See United States v. Del Vizo, 918 F.2d 821, 826 (9th Cir.1990); United States v. Garcia-Nunez, 709 F.2d 559, 561 (9th Cir.1983).

II.

The district court referred repeatedly to Alaska state law in its order and amended order granting Donnelly’s motion to suppress. Concluding that the Terry stop

was legal under our cases as a matter of pure federal law, we must decide if the violation by police of state law can independently invalidate an investigatory stop and search.

“The general rule ... is that evidence will only be excluded in federal court when it violates federal protections, such as those contained in the Fourth Amendment, and not in cases where it is tainted solely under state law.” United States v. Cormier, 220 F.3d 1103, 1111 (9th Cir.2000). Applying this rule, Cormier upheld a consent search even though officers failed to inform the suspects that they had the right to refuse to consent or revoke consent at any time after the search had commenced, as required by state law. Id. at 1111-12. Cormier distinguished two Ninth Circuit cases that departed from the “general rule” and relied on state law in overturning government searches. First, in United States v. Wanless, 882 F.2d 1459, 1463-64 (9th Cir.1989), we reversed the district court’s refusal to suppress evidence found in an inventory search of an automobile, because the Washington State Troopers conducted the search without first asking the owner for consent, as required under state law. Second, in United States v. Mota, 982 F.2d 1384, 1386-89 (9th Cir.1993), we suppressed evidence discovered in a search incident to arrest because state law prohibited custodial arrests for violations of the criminal statute in question.

We need not decide whether Terry “reasonable suspicion” is within Cormier’s “narrow exception” of rules that can be decided by reference to state law. First, it is arguable that the district court referred only to state law as a factor bearing on the federal “totality” test. For example, it states that “for purposes of this case in evaluating reasonableness, we will consider state law, but not treat it as controlling.” Second, even if some Terry stops can be analyzed by reference to state law pursuant to the Wanless-Mota doctrine — a proposition that we neither accept or reject — this district court’s use of state law would not apply. Mota and Wanless stand for the proposition that some tests under the Fourth Amendment necessarily rely on state law in the way they are defined. Cormier, 220 F.3d at 1111 (summarizing Mota and Wanless). For example, a search incident to a valid arrest depends, necessarily, on state law definitions of “valid arrest.” Mota, 982 F.2d at 1387. The district court applied this reasoning imperfectly to the test of reasonable suspicion. The Wanless-Mota rule does not mean that the district court is to ask whether the police violated any state laws in apprehending the defendant Instead, in order to invoke the exception, the district court must find that the police violated a state law that has direct bearing on the federal test at issue — in this ease, the test of reasonable suspicion. See Cormier, 220 F.3d at 1111. In this case, the district court used state law in a much more expansive way. It apparently decided that it is unreasonable for an officer to violate state law and acts that are unreasonable must nullify reasonable suspicion. That proves too much. The fact that the police may not have had the right to arrest the defendant under Alaska law at the time of the Terry stop is irrelevant. This was an investigatory stop, which is supposed to be less invasive than an arrest, and is therefore held to a lesser standard under the Fourth Amendment. Terry, 392 U.S. at 27. Even if the police could not have arrested Donnelly based on this tip given the crime he was accused of committing, so long as they had a reasonable, articulable suspicion that the crime was being committed or was about to be committed, an investigatory stop was permitted.

The district court also noted that Alaska state law is more protective of search and seizure rights than is federal law. Specifically, when an investigatory search is based on the tip of an informant, Alaska continues to use the old Aguilar-Spinelli test, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509,12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which was replaced at the federal level by the Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), “totality of the circumstances test.” See, e.g., State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985). Under Aguilar-Spinelli, an investigatory search based on a tip is only justified if the veracity of the informant and the basis of the tip are verified. Given our court’s pronouncements on the need to maintain the uniformity of Fourth Amendment law, see United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir.1987), the district court was wrong to apply this relaxed state standard in federal court to trigger the federal exclusionary rule. This is not analogous to the Wanless-Mota use of state law. Rather it is an attempt to supplant the federal standard with the state standard.

Neither of the district court’s uses of state law relates directly to questions of reasonable suspicion. Thus, we hold that this district court’s use of state law was unrelated to the ultimate question of reasonable suspicion.

CONCLUSION

Because the dispatch officer had a reasonable suspicion that Donnelly was committing or about to commit a crime, the stop and search was legal and the evidence seized can be admitted. We reverse and remand for further proceedings consistent with this memorandum.

REVERSED AND REMANDED.

1 . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9 th Cir. R. 36-3.

2 . We also reject two alternative theories that Donnelly presents in his Answering Brief. First, Donnelly argues that when the arresting officers "seized” him at gunpoint, they exceeded the scope of a Terry stop, and elevated the situation to an arrest that should be judged under the probable cause standard. Based on cases such as United States v. Hensley, 469 U.S. 221, 224-25, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), and United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir. 1986), the use of guns does not automatically convert the Terry stop of a suspected armed criminal into an arrest. In this case, the officers had justification to draw their weapons and handcuff the suspect because they were responding to a dispatch warning of a "man with a gun.”

Second, Donnelly argues that this case is not dictated by cases such as New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), which have held that students have a diminished expectation of privacy while at school. We agree — in fact, any argument to the contrary is expressly disavowed in the government's reply brief — because this case clearly involved police officers making arrests off campus.