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UNITED STATES v. TURNER

March 1, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN HENRY TURNER, Defendant.


Brazil


The opinion of the court was delivered by: WAYNE D. BRAZIL

Defendant John Henry Turner moves to suppress evidence seized subsequent to the stop and search of his vehicle and person. Mr. Turner argues that the National Park Service Ranger who detained him cannot articulate specific facts sufficient to support the reasonable suspicion of criminal activity that is necessary to justify the stop. Having heard proffers from both plaintiff and defendant, and having considered their written submissions, the court hereby GRANTS the motion to suppress. Because all of the incriminating evidence was developed after the unlawful stop, there is no basis for the prosecution to go forward. Since there is no evidentiary basis for the prosecution to go forward, the court hereby DISMISSES WITH PREJUDICE this action against Mr. Turner.

 FACTS1

 On June 21, 1992 at 6:18 P.M. Ranger Martini drove his marked vehicle on patrol in the Marin Headlands, part of the Golden Gate National Recreation Area in Marin County, California. He traveled up the road that leads to building #T1111, a 600 foot long structure at Fort Cronkhite. Although the government states that "neither the road leading to the building nor the building itself contain restrooms, picnic tables or other amenities for park visitors," and that "the area around [the building] is not customarily frequented by visitor traffic," the Government has presented no evidence about the number or percentage of buildings and roads without such amenities in the Headlands, and makes no allegation that the area around building #T1111 is not open to the public for driving or parking. *fn2"

 Ranger Martini had previously observed several different kinds of violations of regulations in the area behind building #T1111, including unauthorized camping, drinking in vehicles, cultivation of marijuana, and engaging in sex inside vehicles. *fn3" Additionally, the Ranger knew that there had been a suicide in a car parked behind the building. *fn4"

 As Ranger Martini drove around the building, he noticed Mr. Turner's parked car, occupied by two males. *fn5" The car started moving towards the patrol vehicle, according to the ranger, "as soon as the . . . occupants saw me." *fn6"

 Ranger Martini waved to the driver to stop, but the driver, Mr. Turner, passed by and said through an open window, "We were just leaving." *fn7" The ranger then yelled at the car to stop, but, instead of stopping, Mr. Turner drove on, in an apparently lawful manner and without excessive or unreasonable speed. *fn8" Ranger Martini radioed an "eluding vehicle" report and continued driving around the building, whereupon he encountered Mr. Turner again, who had himself driven around the building, again in an apparently lawful manner and without excessive speed. *fn9" Ranger Martini stopped and exited his vehicle. *fn10" Turner stopped his car alongside and again stated "We were just leaving." *fn11" The Ranger looked down into the car and allegedly noticed that Mr. Turner's pants were unzipped and that the passenger "appeared to be underage," whereupon he decided to further detain the two for identification. *fn12"

 The searches that followed this detention allegedly yielded the following results: (A) a hypodermic syringe that was in plain view on the floor in front of the passenger seat, (B) a passenger, 20 year-old Christian Smith, who was under the influence of heroin, (C) a woman's purse that was found under the seat of the vehicle, along with paraphernalia suitable for preparing heroin for injection and a glass "crack pipe," and (D) a loaded, apparently unchambered, semi-automatic pistol that was found in the trunk. Based on these discoveries, Mr. Turner was charged under the following provisions:

 (1) 36 CFR 2.4(b), "Possession of Loaded Firearm in Vehicle."

 (2) 18 U.S.C. ยง 662, "Possession of Stolen Property."

 (3) 36 CFR 2.35(b)(2), "Possession of a Controlled Substance - Marijuana." *fn13"

 II. The Relevant Law

 A seizure of a person occurs under the fourth amendment when that person yields to any official "show of authority" that a reasonable person would interpret as a command to restrict his or her movement. California v. Hodari D., 113 L. Ed. 2d 690, U.S. , 111 S. Ct. 1547, 1551-52 (1991). Such a seizure, and any subsequent search, must comport with the fourth amendment's prohibition of unreasonable searches and seizures, which "extends to seizures of the person, including the brief investigatory stop of a vehicle. Thus, an officer may not detain a motorist without a 'particularized and objective basis for suspecting the particular person stopped of criminal activity.'" United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir. 1992) (citations omitted). The officer must be able to point to "specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the person detained is engaged in criminal activity." United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989) (citation omitted).

 Evidence seized as a result of stop not supported by reasonable suspicion must be suppressed pursuant to a motion made by a defendant with proper standing. See James v. Illinois, 493 U.S. 307, 313, 107 L. Ed. 2d 676, 110 S. Ct. 648 (1990). When deciding whether an investigatory stop is supported by reasonable suspicion, the court must consider "the totality of the circumstances," United States v. Sokolow , 490 U.S. 1, 8, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989), viewed from the perspective of the officer. United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981). Reasonable suspicion is less than probable cause. Rodriguez, 976 F.2d at 594 (citations omitted). "'The facts used to establish reasonable suspicion need not be inconsistent with innocence.'" Id. The court must examine all the factors articulated by the officer and evaluate "the degree of suspicion that attaches to [those] particular types of non-criminal acts." Id.; Sokolow , 490 U.S. 1, 10, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989).

 At the time of the stop, the officer is entitled to assess the facts in light of his or her training and experience in detecting crime, United States v. Brignoni-Ponce, 422 U.S. 873, 885, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975), and to make "common sense conclusions about human behavior." Sokalow, 490 U.S. at 8 (citation omitted). Among the factors that an officer may articulate when asserting reasonable suspicion are: "the characteristics of the area in which [he or she encounters] a vehicle, . . . usual patterns of traffic, recent [indications of ongoing illegal activity in the area], a driver's behavior, and aspects of the ...


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