United States v. Morris Paul Leal and Morton Ritchie Leal , 460 F.2d 385 ( 1972 )

HUFSTEDLER

(dissenting):

I respectfully dissent on the sole ground that the evidence was insufficient to create the “founded suspicion” required to justify a brief, informal, investigatory detention of Morris Leal. (Wilson v. Porter (9th Cir. 1966) 361 F.2d 412, 415; cf. Terry v. Ohio (1968) 392 U.S. 1, 33, 88 S.Ct. 1868, 20 L.Ed.2d 889.)

Viewed in the light most favorable to the Government, the police officers knew the following facts at the time the stop was made: (1) A “very young appearing” woman (Miss Correa) was seen in the company of “a possibly Oriental male” (Morris Leal) in a night club-gambling casino in Las Vegas; (2) the young woman was playing the slot machines, her handbag was open, and an officer saw that she had a stack of currency perhaps two and one half inches thick; (3) the young woman and the man were driving an automobile with an out-of-state license plate; (4) the automobile had been rented in San Francisco with a listed destination of San Antonio, Texas.

This combination of facts occurring in Las Vegas is totally unremarkable. Las Vegas is on an ordinary route to San Antonio. Las Vegas is crowded with out-of-state automobiles, many of them rented. Persons carrying substantial amounts of currency in gambling casinos are commonplace. Do the additional facts that the carrier of currency is a young woman accompanied by a “possibly Oriental male” convert those innocuous incidents into a founded suspicion that the young couple may be engaged in unlawful activity ? ¹ I think not.

Each case in which the founded suspicion test is applied turns on its own facts. None of the cases cited in the majority opinion to illustrate applications of the test has any similarity to the facts of this case. However, all of the cases, including this one, have the common thread that developments after the initial stop revealed evidence of criminal conduct. It is tempting to infer that a suspicion was originally well founded when later events disclose criminality. The temptation is considerably lessened when one recognizes that the only cases one sees in the criminal process are those in which criminal conduct is ultimately found; those persons who are subjected to illegal detentions who have nothing to disclose do not find themselves in criminal courts. The supervening reason for resisting the temptation, however, is that it is constitutionally foreclosed. Neither illegal detentions nor illegal searches can be justified by what they turn up. (E. g., Terry v. Ohio, supra; Sibron v. New York (1968) 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917.)

Because I am convinced that the initial stop was invalid, the consensual search and seizure and the arrests which followed therefrom are likewise invalid. (Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.) Accordingly, I would reverse.

1 . “[T]he citizen who has given no good cause for believing he is engaged in . . [unlawful] activity is entitled to proceed on his way without interference.” Brinegar v. United States (1949) 338 U.S. 160, 177, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879. See also Carroll v. United States (1925) 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543.