United States v. Pascual Guana-Sanchez , 484 F.2d 590 ( 1973 )

KILEY, Circuit Judge.

Defendant, Sanchez, was charged in a one count indictment with knowingly and unlawfully transporting aliens within the United States in violation of 8 U. S.C. § 1324(a)(2). After an evidentiary hearing the district court granted Sanchez’s motion to suppress evidence unlawfully seized by police. The government has appealed. We affirm.

On November 17, 1971, at approximately 2:30 a. m., Villa Park, Illinois, police officers Tenuto and Hall observed Sanchez sitting in a station wagon, about 150 to 200 feet away, in a vacant lot, with headlights and interior light shining. When the officers approached the car, Sanchez was in the driver’s seat and was reading an Illinois road map. At this time the officers observed three other males also in the car, one of them sleeping, and three shopping bags filled with “clothing or material” in the rear of the car.

The officers then began an inquiry which disclosed that Sanchez had a valid driver’s license, that his passengers were probably Mexican, and led to the further disclosure that the car was registered in Sanchez’s name and that he was not “wanted by the police.” The police then radioed for their supervising sergeant. Upon the sergeant’s arrival and, at his direction, two of Sanchez’s passengers were directed to enter a police car and were driven to a police station. Sanchez was “invited” to follow with the third passenger.

At the police station the sergeant spoke on the telephone with Captain Partin, a Chicago immigration official, who then spoke to Sanchez’s passengers. Partin directed the police to detain Sanchez and his passengers, whom Partin told the police had admitted illegal entry into the United States. The four men were locked up overnight, were picked up by immigration authorities the next morning, and Sanchez was subsequently indicted. The proceeding before us followed.

Three steps in time can be delineated from the facts before us: (1) the original interrogation ending with the determination of validity of Sanchez’s driver’s license and his ownership of the car; (2) the period beginning with the return to Sanchez of his license and of the restraint upon his movement thereafter; and, (3) the period beginning with the trip to the police station.

The district judge conducted an evidentiary hearing at which the parties stipulated that no arrest or search warrant had issued. Officer Tenuto was the only government witness.¹ After the hearing, the district judge read his findings of fact and conclusions of law ² in which he decided that the police officers had a reasonable suspicion justifying their interrogation, in the first step of the police activity, but that there was no probable cause to justify their activity thereafter.

When the sergeant appeared at Sanchez’s car and appraised the situation, he said to officers Tenuto and Hall, “[l]et’s bring them into the station and check them out and see who they are, if they are wanted by anybody.” Two of the passengers were then ordered out of Sanchez’s car and into a police car for the trip to the police station. Under the circumstances we take officer Tenuto’s testimony that Sanchez was “invited” to follow to mean that he was ordered. Officer Tenuto testified that “[w]e did not have anything to bring them into the station for.” The district judge properly noted that “Sanchez was taken into custody by the . . . officers for investigation . . . [and] [t]here is no crime of ‘investigation.’ ” See Davis v. Mississippi, 394 U.S. 721, 726-727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); United States v. Foust, 461 F.2d 328, 330 (7th Cir. 1972). The police had no greater knowledge when they arrested Sanchez than they had after the end of the initial intrusion on reasonable suspicion. On the contrary, they had additional knowledge that he was most probably innocent of any connection with crime.³ At best they had “hunches” of criminality but that is not sufficient. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1967).

There was no showing by the evidence “. . . that the exigencies of the situation” made the warrantless arrest “imperative.” Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S. Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). The police had the burden of justifying the arrest. United States v. Burhannon, 388 F.2d 961, 962 (7th Cir. 1968). And the standards for warrantless arrests “are at least as stringent” as those applicable to a magistrate’s assessment. Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). This record falls far short of the required showing.

The warrantless arrest must be judged as of the time it was made. It could not be aided by the post facto developments of immigration official Par-tin’s statement to the police that Sanchez’s passengers were probably illegal entrants into the United States, nor by reason of the warrantless search of Sanchez’s car which produced a hand gun in the glove compartment. See Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4L.Ed.2d 134 (1959).

The government’s reliance upon this court’s decision in United States v. Chai-dez-Castro, 430 F.2d 766 (7th Cir. 1970), and United States v. Madril, 445 F.2d 827 (9th Cir. 1971), is misplaced. In Chaidez-Castro there were, in support of the warrantless arrest, Texas license plates on the truck and extra Texas license plates on the floor of the cab, and “the most persuasive [fact] was the police officer’s observation of a number of faces peering from the inside of a ‘home-made’ box on the back of the truck.” In Madril the court sustained the warrantless arrest, where the initial stop was occasioned by a speeding violation and thereafter the driver was unable to produce proof of ownership as required by law. Moreover, there was an outstanding warrant for defendant which was discovered during the course of checking the status of the vehicle and its occupants.

We have considered, but need not pass upon, other points raised.

We conclude that the district court did not err in deciding that the arrest was unreasonable under the Fourth Amendment and that the evidence gained thereafter was “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).⁴

Affirmed.

1 . The government stated that officer Hall’s testimony would be substantially similar to Tenuto’s.

2 . The written memorandum from which he read is not in the record,

3 . When the arrest was made the police knew Sanchez owned the car and had a valid driver’s license and they had no reason to believe that he was committing or was probably connected with an offense. The police had learned by observation before the arrest that Sanchez spoke, and his passengers responded in, a language the police “did not understand” but which was probably Spanish and that the passengers were probably Mexican or Puerto Rican. But the court properly noted that there is no crime in speaking Spanish or being Mexican or Puerto Rican. See United States v. Mallides, 473 F.2d 859, 860 (9th Cir. 1973).

4 . The government concedes that the testimony of witnesses discovered during an il-illegal search can be suppressed as to a person having standing to object. We think the same is true in the event of an illegal arrest. See United States v. Mal-lides, supra., 473 F.2d at p. 861.