United States v. Rodgers

656 F.3d 1023, 2011 U.S. App. LEXIS 18564, 2011 WL 3907115

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 7, 2011
• Docket: 10-30254
• Status: Published

Opinions

OPINION

McKEOWN, Circuit Judge:

Passenger and vehicle searches have played a prominent role in Fourth Anendment jurisprudence. The Supreme Court has consistently held that probable cause is necessary to conduct a warrantless search of a vehicle. See Carroll v. United States, 267 U.S. 132, 160-62, 45 S.Ct. 280, 69 L.Ed. 543 (1925); California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). In recent years, the Court has clarified that “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” the search may extend to any area where evidence might be found. See Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1721, 173 L.Ed.2d 485 (2009) (citing United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). In addition, when an arrest is made, a warrantless search is permitted “if the arrestee is within reaching distance of the passenger compartment ... or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 1723. But the Court has never sanctioned a vehicle search simply because there was probable cause to arrest a passenger or because a passenger could not provide identification. The Fourth Amendment requires more.

Background

The facts in this appeal are not in dispute. On December 16, 2009, at approximately 3:30 a.m., Police Officer Ryan Moody was patrolling the area of South 84th Street and South Hosmer Street in Lakewood, Washington, a high crime location known for juvenile prostitution and vehicle theft. During the course of his duties, Moody performed random license plate checks on passing vehicles, “[Booking for warrants, suspended drivers, [and] stolen vehicles.”¹ Moody ran a routine check on a black Pontiac Grand Ana. The registration record indicated that the car was registered to an individual named Joshua Rodgers. Moody noticed, however, that “the colors didn’t match”: the registration listed the car as gold, but the car observed by Moody was black. Moody testified that he often encountered license plates that had been removed from one vehicle and placed on a stolen vehicle of the same make and model to conceal a car’s stolen status.² Thus, suspecting that the car might be stolen, Moody stopped the vehicle and approached on foot.

Upon reaching the driver’s side of the car, Moody immediately recognized Rodg-^ ers from two prior traffic stops.³ Rodgers was cooperative and explained that he had painted his vehicle but did not have money to update his registration. Rodgers provided Moody with a valid driver’s license, which confirmed that he owned the car. Moody also checked to make sure that the vehicle identification number listed on the registration record matched the number on Rodgers’ vehicle.

At some point during the stop, Moody looked into Rodgers’ car and noticed a young female in the front passenger seat. The young woman “appeared to be Caucasian” and “seemed nervous, didn’t want to make eye contact.” Based on her appearance, Moody thought that the girl was twelve to fourteen years old. Recalling that Rodgers was 51 years old according to his license, Moody asked Rodgers about the young woman. Rodgers responded that she was simply a friend and that he was giving her a ride to a nearby apartment complex. This scenario “obviously raised [Moody’s] suspicion more, being that, he’s a 51-year-old male, and the way she appeared [ ] was a 12-to-14-year-old female.” Given the time of day and the high-crime location, Moody’s “first inclination was that she was probably an underage prostitute.” Moody also had concerns that the young woman “could have been a run-away” or “a missing person.”

Suspecting that Rodgers might be “pimping out the female,” Moody continued' to investigate and asked the young woman for identification. The young woman responded that she “didn’t have any” ID, but she provided her name, S.F.,⁴ and indicated that she was 19 years old. S.F. stated that her birthday was January 7, 1990, which was consistent with her stated age of 19 years old. Based on her physical appearance, however, Moody believed that S.F. was lying about her age. He went back to his police car to run a check on the name provided by S.F. and discovered that there was an outstanding arrest warrant on a felony robbery charge for an individual with the same name and month and day of birth that S.F. provided. The birth year listed, however, was 1993. Moody thought the woman in the car was “possibly” the same person named on the warrant, but he still had doubts. Moody testified that in his experience, people sometimes “provide fake or false names and, to their surprise, the name that they provided has a warrant for their arrest.”

Moody requested that another officer respond to the scene. When backup arrived, Moody removed Rodgers and S.F. from the vehicle and separated them to further investigate S.F.’s identity and her relationship to Rodgers. Neither Rodgers nor S.F. was placed in handcuffs, and Moody never testified that he had any concerns for his safety. Once outside the car, Rodgers claimed that he had just met S.F. and that a friend of his asked him to give her a ride.

Moody testified that S.F.’s identity was still not clear to him, so “based on the fact that [he] felt she lied to [him], provided a false statement to [him], [he] wanted to check to see if she had any ID that [he] could actually confirm her identity with.” S.F. had previously indicated that she “didn’t have any” identification, and Moody did not see a purse or bag that could harbor S.F.’s identification. Moody testified, however, that he believed S.F. had identification because “if she’s going to stick with a story about being 19 years old,” based on his training and experience, Moody thought “most 19-year-olds have some form of identification.” Notably, Moody did not perform a search of S.F.’s person. While S.F. was secured by another officer at the rear of the vehicle, however, Moody proceeded to search the passenger area of Rodgers’ car.

Moody never found any identification. In the center console of the car, however, Moody located a black case containing three bags of a crystalline substance later identified as methamphetamine. The officers placed Rodgers under arrest. A search of Rodgers’ person uncovered marijuana, twenty oxycodone pills, and 284 dollars in cash. A full search of Rodgers’ car led to the discovery of a firearm, used methamphetamine pipes, and what appeared to be a ledger. Rodgers was taken to the Pierce County Jail, where he admitted to selling narcotics. S.F. was arrested, taken to a juvenile facility, and booked on the robbery warrant.

A grand jury returned an indictment charging Rodgers with possession of methamphetamine and oxycodone with intent to distribute in violation of 21 U.S.C. § 841, with being a felon in possession of a firearm and an armed career criminal in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and with possession of a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Rodgers filed a motion to suppress the physical evidence obtained from his person and vehicle as well as the statements he made to the police after his arrest. The district court held an evidentiary hearing, during which Moody was the only witness to testify. In adopting Moody’s testimony as its findings of fact, the court credited Moody as “entirely believable.” Although clear in its praise for Moody, the district court’s oral ruling was less specific on other findings. Despite denying Rodgers’ motion to suppress and upholding the search, the court never made any specific finding that the search of Rodgers’ car was supported by probable cause or any other level of particularized suspicion. Rodgers stipulated to a bench trial, and the court convicted him on all counts. Rodgers appeals the denial of his suppression motion, arguing that the initial stop, the extended duration of the seizure, and the search of his vehicle all violated the Fourth Amendment. We review de novo the district court’s denial of the motion to suppress, but review the court’s underlying findings of fact for clear error. See United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir.2010); United States v. Turvin, 517 F.3d 1097, 1099 (9th Cir.2008).

Analysis

A. The Investigatory Stop

The standards that govern investigatory traffic stops are well known. Police may stop a car to investigate individuals only where there is “reasonable suspicion” of illegal activity. See United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir.2000) (en banc); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, Moody relied on two independent factors to justify stopping Rodgers’ car: the color discrepancy between the ear’s registration record and the vehicle’s physical appearance and Rodgers’ presence in a high-crime area. Rodgers contends that these two objective observations indicate entirely innocuous conduct and thus cannot give rise to reasonable suspicion.

We agree that the color discrepancy and high-crime location, even when considered cumulatively, at best provide a thin basis for reasonable suspicion that the car was stolen. The failure to update a vehicle registration to reflect that a'car has been painted is not a citable offense under state or local law; it is also, of course, not illegal to drive in a high-crime area. Nevertheless, whether Moody had reasonable suspicion to stop Rodgers’ vehicle is an exceedingly close question that we need not answer here. Because we reverse the district court’s denial of Rodgers’ suppression motion on a separate ground, we will assume, without deciding, that reasonable suspicion supported the stop.

B. The Continuing Investigation

Next, Rodgers challenges the duration of the stop, arguing that even if the initial stop was constitutionally sound, Moody impermissibly extended its scope and duration. We disagree. A “period of detention [may be] permissibly extended [where] new grounds for suspicion of criminal activity continuef ] to unfold.” United States v. Mayo, 394 F.3d 1271, 1276 (9th Cir.2005).

Throughout the stop the situation was evolving, and new particularized factors arose that supported the continued detention of both Rodgers and S.F. As the district court observed, Moody obtained bits and pieces of suspicious information over time that required additional investigation. Moody initially observed an extremely young woman in the car with Rodgers, a fifty-one-year-old male, at 3:30 in the morning, in an area known for juvenile prostitution. Based on the late hour and the stark differences in age, Moody appropriately continued to investigate the situation by asking a limited number of questions to both Rodgers and S.F. Rodgers’ explanation — that S.F. was a friend who needed a ride — failed to dispel Moody’s suspicion given the late hour. S.F.’s statements about her age, which did not appear consistent with her appearance, also raised a red flag. See, e.g., United States v. Torres-Sanchez, 83 F.3d 1123, 1128 (9th Cir.1996) (holding that continued detention was justified where the defendants’ answers “failed to dispel [the officer’s] suspicions about illegal activity and actually created new ones”).

Once Moody discovered the outstanding arrest warrant for S.F., his suspicions escalated further because he now had additional information to suggest that S.F. had lied about her identity. Although Moody could have arrested S.F. at that time and released Rodgers, Moody had ongoing, legitimate suspicions that Rodgers was engaged in ongoing criminal activity, particularly juvenile prostitution. Because “new grounds for suspicion of criminal activity continued to unfold,” the extended duration of the stop was permissible. Mayo, 394 F.3d at 1276.

C. The Vehicle Search

We turn next to the search of Rodgers’ car, which is the crux of this appeal. The Government acknowledges that probable cause was necessary to support the search, and asks us to rely on the automobile exception to the warrant requirement as addressed by the Supreme Court in United States v. Ross, 456 U.S. 798, 820-22, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).⁵ “Under the automobile exception ..., police may conduct a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains evidence of a crime.” United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir.2010). “Probable cause exists when, under the totality of the circumstances, ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” United States v. Luong, 470 F.3d 898, 902 (9th Cir.2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

The Government asserts that Moody had probable cause to believe that S.F. committed two misdemeanor offenses under Washington law: obstructing a law enforcement officer in violation of Wash. Rev.Code § 9A.76.020, and making a false or misleading statement to a public servant, in violation of Wash. Rev.Code § 9A.76.175. The Government apparently assumes that because probable cause existed to arrest S.F. (that is, probable cause existed to believe S.F. committed a crime) it follows a fortiori that Moody had probable cause to search the vehicle for evidence of that crime.

This approach, however, elides an important distinction between probable cause to search and probable cause to arrest. In United States v. Henderson, we explained that

[t]he focus of the arrest inquiry is different from that of the search inquiry. See Greene v. Reeves, 80 F.3d 1101, 1106 (6th Cir.1996). Officers have probable cause for an arrest if at the time of the arrest, “the facts and circumstances within their knowledge and of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent man in believing” that the defendant committed an offense. Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. , 116 L.Ed.2d 589 (1991) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). Officers have probable cause for a search when “the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). “[T]here may be probable cause to search without probable cause to arrest, and vice-versa.” Id. (citing 2 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 3.1(b) at 9 (3d ed. 1996)).

241 F.3d 638, 647-48 (9th Cir.2000).

Both the Supreme Court and this court have highlighted this distinction. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (“The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.”); United States v. O’Connor, 658 F.2d 688, 693 n. 7 (9th Cir.1981) (“Probable cause to arrest concerns the guilt of the arrestee, whereas probable cause to search an item concerns the connection of the items sought with the crime and the present location of the items.”); Millender v. County of Los Angeles, 620 F.3d 1016, 1029 n. 6 (9th Cir.2010) (en banc).

The relevant question with respect to the search is whether there was “probable cause to believe that the vehicle contained] evidence of a crime.” Brooks, 610 F.3d at 1193. We conclude that there was not. A finding of probable cause must be supported by the objective facts known to the officer at the time of the search. See Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (the “factual determinations bearing upon search and seizure ... must be judged against an objective standard” based on “the facts available to the officer at the moment” (internal quotation marks omitted)). The inquiry is a particularized one, requiring factual specificity that “evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317; see also United States v. Struckman, 603 F.3d 731, 739 (9th Cir.2010). Police “obtain probable cause because the facts indicate that they will find what they are looking for in the place to be searched.” United States v. Johnson, 256 F.3d 895, 906 (9th Cir.2001) (en banc) (emphasis added) (Ferguson, J., writing for a majority on this issue).

What is missing in the search of Rodgers’ vehicle for S.F.’s identification is any specific particularized fact indicating that S.F. had identification and that such identification was located in Rodgers’ car. Although Moody testified extensively about the facts that he relied upon to justify the extended investigation of Rodgers and S.F. — the late hour, the high-crime area, the suspicious relationship between the two, the evasive answers to questions, the arrest warrant, and S.F.’s false statement — none of these facts are probative of whether there was “probable cause to believe that the vehicle contained] evidence of a crime.” Brooks, 610 F.3d at 1193.

Despite his detailed testimony, Moody did not identify any particular facts or observations that led him to believe S.F. had identification and that it was inside Rodgers’ ear. Nor can we find any such facts in the record. There is, for example, no indication that Moody saw S.F. trying to hide anything in the ear, that S.F. was eyeing anything inside the car, that S.F. made any furtive movements, or that any papers or objects appearing to be identification were in plain view. Indeed, the only relevant fact Moody offered — that he never saw a purse or bag that might have contained S.F.’s identification — cuts against a finding of probable cause to search the car.

When asked during the suppression hearing why he had reason to believe that 5.F. “might have identification,” Moody’s only response was baffling: “Well, if she’s going to stick with a story about being 19 years old, I know that, based on my training an experience, most 19-year-olds have some form of identification.” But it is undisputed that Moody did not think S.F. was 19 years old and that she was the passenger, not the driver. Moody’s entire extended investigation was predicated on his suspicion that S.F. was much younger. The Government nonetheless expects us to hold that Moody’s reliance on the veracity of the lie — that S.F. was 19 years old — was somehow reasonable, despite Moody’s belief to the contrary. This approach turns the objective facts standard on its head — a known lie can hardly be an objective fact. Even if we were to accept the lie as a half-truth, Moody’s rationale is nothing more than a half-baked hunch, and it is well-established “that ‘hunches’ are insufficient to establish reasonable suspicion, let alone probable cause.” Johnson, 256 F.3d at 905 (quoting Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). Notably, Moody was never asked what led him to believe the identification was actually within Rodgers’ car.⁶

As an alternative rationale, the Government offers that it was reasonable for Moody to assume that S.F. had identification because individuals in Washington can obtain a driver’s license at sixteen. This backtracking does not fix the gap. Nothing in the record supports such a rationale. Moody, in fact, thought S.F. was twelve or fourteen, well below the driving age, and Washington law certainly does not require passengers to carry identification.⁷ State v. Barwick, 66 Wash.App. 706, 833 P.2d 421, 423 (1992), abrogated on other grounds by State v. Cole, 73 Wash.App. 844, 871 P.2d 656, 658 (1994). But, more importantly, an assumption that most sixteen-year-old passengers have identification does not lead to probable cause to search every car carrying a teenager absent some individualized suspicion regarding the teenager, the vehicle in question, and the crime at issue.

Without any objective facts indicating that S.F.’s identification was in Rodgers’ car, we cannot endorse the significant intrusion of the search.⁸ “The Supreme Court has emphasized that probable cause ‘demands’ factual ‘specificity’ and ‘must be judged according to an objective standard.’ ” Johnson, 256 F.3d at 905 (quoting Terry, 392 U.S. at 21-22 n. 18, 88 S.Ct. 1868). The search was unconstitutional. All the physical evidence seized and Rodgers’ subsequent statements to police must be suppressed under the exclusionary rule. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Crawford, 372 F.3d 1048, 1054 (9th Cir.2004) (en banc).

REVERSED AND REMANDED.

1 . The quotations used throughout this section are taken from Moody’s testimony before the district court. Moody was the only witness to appear, and the district court adopted his testimony as the court’s findings of fact.

2 . The parties agree that the failure to update a vehicle’s registration after it has been painted is not a citable offense under local or state law.

3 . In fact, Moody previously stopped Rodgers’ vehicle for the exact same reason — the discrepancy between the color listed on the registration and the car’s physical appearance.

4 . Because S.F. is a juvenile, her initials have been used throughout these proceedings to protect her identity.

6 . The dissent would uphold the search on one of two widely divergent theories. Either S.F., pretending to be nineteen would have hidden a fake ID in Rodgers’ car, or "she may have hidden real identification, such as a YMCA [or Associated Student Body] card, which might reflect that she was not, in fact, nineteen.” Dissent at 17020. Either of these scenarios are possible, but neither is probable and neither is supported by any facts in the record. (Do Associated Student Body cards even exist anymore? Does a YMCA card even contain an individual’s age? Library cards certainly don’t).

The dissent is predicated on "mights.” But the Fourth Amendment does not allow us to uphold a search based on imagined circumstances drawn out of thin air ex post. It requires factual specificity based on the objective facts known to the officer at the time of the search. All Moody knew that night was that S.F. had likely lied about her age. Every other assumption the dissent relies upon to support the search — S.F. could have lied about having identification, she could have had a fake ID or YMCA card that could have had her real age on it, and she could have stashed identification in Rodgers’ car — is nothing more than a hunch crafted in hindsight.

7 . We note that the Fourth Amendment does not prevent police from "ask[ing] people who have legitimately been stopped for identification.” United States v. Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir.2007). Nor is it impermissible for police to arrest an individual for failure to properly identify herself or produce identification if such conduct violates state law. See Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt County, 542 U.S. 177, 187-88, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). But the Fourth Amendment does not permit the search of a car for a passenger’s identification where state law does not require passengers to carry identification and there is no basis in the record to believe that the identification is located inside the car.

8 . We acknowledge the difficult circumstances police officers face in making quick judgments and are wary of overanalyzing their investigative methods, especially when a child’s life could be in danger. But nothing about the search here addresses that concern. The search of the vehicle for S.F.’s identification as a means to protect S.F. seems superfluous at best. Police already had more than enough evidence to arrest S.F. and take her into custody. Moody knew of the outstanding warrant and had reason to believe S.F. committed new crimes based on her false statements. As it turned out, police never recovered any identification, and yet they still arrested S.F. on the warrant. In addition, there is no indication police searched S.F.'s person, the most likely place to find identification, before searching Rodgers’ car. It is difficult to justify the serious invasion of Rodgers' privacy in search of evidence that bore no relationship to concerns about S.F.