United States v. Gines-Perez , 90 F. App'x 3 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2707
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS GINES-PEREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Howard, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
Steven M. Potolsky, P.A. for appellant.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, and Sonia I. Torres-
Pabón, Assistant United States Attorney, were on brief for
appellee.
March 18, 2004
Per curiam. On July 6, 1998, defendant-appellant Luis
Gines-Perez was arrested after the car he was driving was stopped
and found to be carrying 1.4 kilograms of heroin. Gines-Perez
eventually pleaded guilty to three counts of an indictment charging
him with narcotics distribution-related offenses, but reserved the
right to appeal the denial of his suppression motion. The motion
challenged the legality of the initial stop and warrants that
subsequently issued for searches of Gines-Perez's business and
home.
There is no dispute that Gines-Perez's car was originally
stopped because, and only because, it was reported stolen; that the
report was based on incorrect information in a computer database
used by the Puerto Rico police; that police error caused the
database to be incorrect; and that the incorrect database
information was itself misinterpreted (in a manner unfavorable to
Gines-Perez) by the police dispatcher who informed the arresting
officers that the vehicle was stolen. These police errors were the
basis of Gines-Perez's suppression motion, which argued that there
were no grounds for stopping his car or for the subsequent search
warrants that issued because of the material found in his car. The
district court rejected this argument, holding (inter alia) that
the good faith exception identified in Arizona v. Evans, 514 U.S.
1, 10-16 (1995), applied to the conduct of the arresting officers.
The primary basis for the district court's decision,
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however, was its conclusion that, viewing "the totality of the
circumstances," there were sufficient grounds to sustain the search
under the "reasonable suspicion" doctrine of Terry v. Ohio, 392
U.S. 1 (1968). In support of this conclusion, the court relied
primarily on the following facts: one of the officers involved in
the arrest knew that Gines-Perez previously had been arrested and
that he had been the subject of surveillance for money laundering
and drug trafficking; Gines-Perez was observed entering the same
restaurant where another person under surveillance was dining just
prior to his arrest; after exiting the restaurant with a companion
and sliding behind the wheel of his vehicle, Gines-Perez lifted his
shirt to show his companion something in a manner that aroused
suspicions; and Gines-Perez drove around the block twice after
exiting the restaurant. But significantly, the court's Terry
analysis was not entirely independent of its Evans analysis; the
court also included in its view of the totality of the
circumstances the fact that "the car driven by Gines-Perez was
reported as "stolen."
We are troubled by the district court's reading of Evans
as extending the good faith exception to reliance by an arresting
officer on faulty computer database information due to police
error. This reading was dispositive of Gines-Perez's arguments
based on police error and, as noted above, implicated in the
court's totality of the circumstances decision. We can understand
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how the district court arrived at its position. It acknowledged
its reliance on the language in Evans framing the issue identified
in the grant of certiorari, i.e., whether evidence seized because
of an inaccurate computer record should be suppressed "regardless
of whether police personnel or court personnel were responsible .
. . ." Evans, 514 U.S. at 6.
In this instance, however, such reliance on Evans takes
that case beyond its underlying facts and holdings, for the Court
explicitly declined to reach the issue. See id. at 16 n.5 (stating
that the Court would not address whether the good faith exception
would apply to police error); id. at 16-17 (O'Connor, J.,
concurring) (arguing against application of the exception to police
error). The government makes no effort to defend the district
court's reading of Evans on appeal. Nor does the government argue
that the Evans good faith exception should apply under the
circumstances of this case.
Inexplicably, Gines-Perez's opening brief makes no
mention of the additional grounds cited in support of the court's
Terry ruling. Indeed, the brief reads as though the entire basis
for the court's rejection of his suppression motion was the court's
conclusion that the Evans good faith exception applied to the
arresting officers' conduct. In ignoring what might be read as
alternative independent grounds for upholding the stop, Gines-Perez
comes dangerously close to a forfeiture. See United States Public
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Interest Research Group v. Atlantic Salmon of Maine, LLC, 339 F.3d
23, 33 (1st Cir. 2003) (argument not presented in opening brief is
forfeited).
Yet under the circumstances, we believe that the fairer
course of action is to vacate and remand for clarification and for
further proceedings consistent with this opinion. Two factors lead
us to adopt this approach. First, as already noted, the district
court misread Evans as flatly governing this case (which it does
not), and the stolen vehicle report appears to be part of the
court's Terry calculus. Second, it can be argued (although we do
not now decide) that there is difficulty seeing how, other than the
stolen vehicle report, the officers involved in the investigation
that led to Gines-Perez's apprehension could be found to have had
a "particularized and objective basis for suspecting [Gines] of
criminal activity" at the time of his initial detention.
Ornelas v. United States, 517 U.S. 690, 696 (1996) (describing the
"reasonable suspicion" required to justify a Terry stop) (citation
and internal quotation marks omitted). Along these lines, we note
that the government does not identify the crime a reasonable
officer armed with knowledge of all the facts other than the stolen
vehicle report might have suspected Gines-Perez of committing,
having committed, or being about to commit. But at the same time,
we do not wish to decide the matter without giving the district
court an opportunity to revisit the case in light of our opinion.
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On remand, the district court may order additional
briefing and/or argument to help facilitate its reaching whatever
decision it deems appropriate. We also call the parties' attention
to the Supreme Court's recent decision in Groh v. Ramirez, 124 S.
Ct. 1284 (2004), which might have some bearing on Gines-Perez's
challenge to the search warrants. We shall retain jurisdiction
over this appeal with the understanding that it will be dismissed
should the court vacate or modify the judgment of conviction from
which Gines-Perez appeals. The parties are directed to file a
joint status report within 30 days of the court's disposition of
this matter following our remand. At that point, we shall issue
whatever additional orders we deem appropriate.
So ordered.
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