United States v. Collins

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-50065
Plaintiff-Appellant, D.C. No.
v.  CR-03-00629-FMC-
GWAINE COLLINS, 05
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the Central District of California
Florence Marie Cooper, District Judge, Presiding
Argued and Submitted
February 7, 2005—Pasadena, California
Filed October 28, 2005
Before: Harry Pregerson, William C. Canby, Jr., and
Robert R. Beezer, Circuit Judges.
Opinion by Judge Canby
14833
UNITED STATES v. COLLINS 14835
COUNSEL
Fred A. Rowley, Jr., Assistant United States Attorney, Crimi-
nal Appeals Section, Los Angeles, California, for the
plaintiff-appellant.
Sonia E. Chahin, LaCanada, California, for the defendant-
appellee.
OPINION
CANBY, Circuit Judge:
Gwaine Collins was indicted with five others and charged
with conspiracy to retain and deliver, and retaining and deliv-
ering, stolen United States treasury checks. See 18 U.S.C.
14836 UNITED STATES v. COLLINS
§§ 371, 510(b). He moved to suppress evidence found in a
search following his warrantless arrest. The district court con-
cluded that Collins’ arrest violated the Fourth Amendment
because federal agents did not have probable cause to believe
that he was participating in the stolen treasury check “ring.”
The district court consequently suppressed the fruit of the
arrest. The government appeals pursuant to 18 U.S.C. § 3731.
We affirm the district court’s order.
I
A major development in the district court frames the dis-
trict court’s factual findings and our decision on appeal. The
district court found inexplicable discrepancies between, on the
one hand, the events as depicted in an audio recording and
reports of agents nearly contemporaneous with the arrest and,
on the other hand, later statements, reports and testimony of
the agents. Accordingly, the district court discredited the later
statements, reports and testimony, and confined its determina-
tion of probable cause to the sparse earlier evidence. The gov-
ernment does not challenge the adverse credibility finding on
appeal, but contends that the remaining evidence was suffi-
cient to establish probable cause. We agree with the district
court, however, that the evidence, with its crucial gaps and
lack of facts connecting Collins with the other actors, was
insufficient.
II
The evidence accepted by the district court as credible
established the following. The United States Secret Service
began investigating a “ring” trafficking in stolen treasury
checks. The investigation focused on Michael Pass. Pass fre-
quently met with a confidential informant. Pass often pro-
vided stolen checks to the confidential informant, in pursuit
of a scheme to negotiate the checks and deposit the proceeds
in offshore bank accounts. The two met several times in an
office building in California. Pass told the confidential infor-
UNITED STATES v. COLLINS 14837
mant that he had several “connect[s]” (sources) for the stolen
checks.
On July 31, 2003, Pass agreed to deliver several stolen
checks, with a total face value exceeding $400,000, to the
confidential informant. Pass told the confidential informant
that his “connects” wanted payment for the checks. At the
meeting, the confidential informant wore a wire that transmit-
ted back to federal agents waiting outside the office building.
The conversation was recorded. The confidential informant
also remained in occasional contact with the agents through
a phone in the office. Two agents maintained surveillance of
the public parking lot next to the office building.
Pass had arrived at the meeting alone with several stolen
checks, but he stated that more checks were on their way.
After making and receiving several calls on his cellular
phone, Pass told the confidential informant that his “guys”
would arrive within ten minutes with more checks.1 He then
told the confidential informant that he was going downstairs
to his car, where he was going to make the exchange and
bring back the rest of the checks.
Pass went into the public lot under surveillance and sat in
his car. Shortly thereafter, a white Cadillac pulled into the
parking space next to Pass’s car. Almost immediately thereaf-
ter, a gray Toyota Corolla pulled into the parking space on the
other side of Pass’s car.
The agents then observed a Hispanic male (Edgardo Flores)
enter Pass’s vehicle. It is not at all clear where Flores came
1
The district judge stated that a “fair reading of the transcript supports
the conclusion that Pass was expecting more than one person.” Collins
does not dispute this interpretation. Therefore, even though the govern-
ment’s use of the word “guys” in its briefs is not completely accurate in
the context of the entire transcript, we assume that Pass intended to meet
one or more persons.
14838 UNITED STATES v. COLLINS
from. The government does not contend that agents observed
Flores and Collins arrive together in the white Cadillac, but
it suggests that agents could properly infer that the men
arrived together from their appearance at approximately the
same time, coupled with other surrounding circumstances.
Because two cars arrived almost simultaneously on each side
of Pass’s vehicle, however, there is no way of knowing which
one (if, indeed, either) brought Flores to the scene.
Agents next observed an “African-American male, later
identified to be Collins,” standing next to the Corolla and
talking to its driver. Again, it is not entirely clear where Col-
lins came from. The government does not contend that agents
observed Collins drive the Cadillac into the lot, but it argues
that agents could infer that fact from the timing of the car’s
arrival and the surrounding circumstances. [Id.] That may be
a reasonable inference.
Pass and Flores then got out of Pass’s car and approached
the office building. Once they were inside, agents arrested
them and found an envelope of stolen checks. [Id.]
Meanwhile, Collins finished speaking with the driver of the
Corolla and entered a Quizno’s restaurant that bordered the
parking lot. Collins purchased a drink and walked out of the
restaurant. Agents entered the lot and arrested him and the
driver of the Corolla (Sergio Balsinde).2 This arrest occurred
at the same time that officers arrested Flores and Pass. [Id.]
Police later released Balsinde.
2
After arresting Collins, police impounded his car. A subsequent inven-
tory search produced, among other things, a day planner that contained
account information that the confidential informant had given Pass. The
district court suppressed this evidence because it was the fruit of the
unlawful arrest.
UNITED STATES v. COLLINS 14839
III
[1] We conclude that the agents lacked probable cause to
believe that Collins was committing, or had committed, a
criminal offense.3 We recognize that the standard for probable
cause is not terribly demanding. It merely asks whether, under
the totality of the circumstances, a prudent officer would have
believed that there was a fair probability that Collins commit-
ted a crime. E.g., United States v. Hernandez, 322 F.3d 592,
596 (9th Cir. 2003) (stating standard). On the record before
us, the answer is “no.”
[2] As the district judge noted, the relevant inquiry is what
the agents knew, collectively, at the time they arrested Col-
lins. Facts uncovered after the arrest are irrelevant. See Allen
v. City of Portland, 73 F.3d 232, 236 (9th Cir. 1996)
(amended opinion) (stating that facts uncovered “as a result of
a stop or arrest cannot be used to support probable cause
unless they were known . . . at the moment the arrest was
made.”). As the facts already recited indicate, the only thing
the agents knew about Collins was that he had shown up (per-
haps in the white Cadillac) in a public parking lot, had talked
briefly to the driver of another car in that lot, and had gone
into a fast-food restaurant and purchased a drink. It is true that
the agents were expecting a person or persons to arrive in the
lot who would be carrying stolen checks. At least one such
person, Flores, did arrive and was carrying checks. Entirely
missing, however, was any connection between Collins and
Flores other than the fact that they appeared (from some-
where) in a public parking lot relatively contemporaneously.
Equally missing is any connection between Collins and Pass.
[3] These facts did not give rise to a fair probability that
Collins was part of the conspiracy. The principal fact that tied
3
We review de novo whether agents had probable cause for a warrant-
less arrest. United States v. Juvenile (RRA-A), 229 F.3d 737, 742 (9th Cir.
2000).
14840 UNITED STATES v. COLLINS
Collins to this criminal activity was his “mere propinquity to
others independently suspected of criminal activity,” which
“does not, without more, give rise to probable cause.” Ybarra
v. Illinois, 444 U.S. 85, 91 (1979) (holding that officers
lacked probable cause to search the defendant solely because
of his presence in a tavern in which the officers suspected the
bartender dealt heroin). The facts showed only that Collins
was close to the wrong people at the wrong time.
[4] The connections ended there. Collins was not associat-
ing with a suspected conspirator. Furthermore, before arrest-
ing him in the public parking lot, the agents had never
suspected Collins, or even heard of him, throughout their
lengthy investigation of the stolen check ring. There simply
was no individualized suspicion of Collins, save whatever
was lent by proximity and timing.4 See id. at 90-91. While this
knowledge may have created reasonable suspicion, it did not
rise to the level of probable cause.
The government challenges this conclusion, primarily rely-
ing on Maryland v. Pringle, 540 U.S. 366 (2003). In Pringle,
the Supreme Court held that officers had probable cause to
arrest the defendant for possession of cocaine because officers
found cocaine in the rear seat of a vehicle in which Pringle
was the front-seat passenger, they found a large amount of
cash in the glove box in front of Pringle, and the other two
occupants denied ownership of the cocaine. Id. at 368, 372.
The government contends that the case at bar is closer to
Pringle than Ybarra.
4
This case is therefore distinguishable from United States v. Segars, 31
F.3d 655 (8th Cir. 1994), cited by the government. In Segars, there was
reason in addition to timing to single Segars out because, among other rea-
sons, police knew that the suspected drug courier would arrive at a certain
place in Minnesota in a vehicle with Michigan license plates. Id. at 659.
After the scheduled arrival, Segars went directly to the apartment door of
a known drug dealer. Id. Here, however, agents had no personal informa-
tion about Collins or his vehicle and no other facts to identify Collins as
a probable co-conspirator.
UNITED STATES v. COLLINS 14841
In Pringle, however, officers found the defendant in a pri-
vate vehicle with only two other occupants. The Court distin-
guished Ybarra because the intimate interior of the vehicle
was not like a public tavern, noting that “ ‘a car passenger—
unlike the unwitting tavern patron in Ybarra—will often be
engaged in a common enterprise with the . . .’ ” Id. at 373
(quoting Wyoming v. Houghton, 526 U.S. 295, 304-05
(1999)). This distinction is important. The intimate interior of
a private vehicle is worlds apart from the public parking lot
of a strip mall.
Unlike the interior of a private vehicle, the public parking
lot setting does not support the inference that everyone in a
segment of the parking lot probably knows each other (and
that they are participating in the others’ illegal activities).
Like Collins, the driver of the Corolla did not associate with
Pass or Flores. Therefore, by speaking with the Corolla driver,
Collins did not provide agents with a probable link in the
associational chain.
[5] The government is correct that contemporaneous asso-
ciation with known criminal activity contributes to a finding
of probable cause. See, e.g., United States v. Hillison, 733
F.2d 692, 697 (9th Cir. 1984). The problem is that, although
the credited facts show contemporaneity, they do not show asso-
ciation.5 The only facts offered to show association are prox-
imity and timing and, under Ybarra, that is not enough.
5
For the same reason, the government’s reliance on United States v.
Vizcarra-Martinez, 66 F.3d 1006 (9th Cir. 1995), is unavailing. There,
officers had more than ample evidence of Vizcarra-Martinez’s association
with those suspected of criminal activity; he had backed his car into a
garage where other suspects were storing and transferring precursors of
methamphetamine. See id. at 1011. “Vizcarra-Martinez was not merely
observed associating with those suspected of criminal activity; his own
actions, and the other facts known to the police, strongly suggested . . .”
that he was engaged in criminal activity. Id. at 1012.
Similarly, in United States v. Howard, 758 F.2d 1318 (9th Cir. 1985)
(per curiam), agents had probable cause because they saw Howard in his
14842 UNITED STATES v. COLLINS
IV
[6] The district court recognized that this was an unusual
case, largely because much of the agents’ evidence was dis-
credited. The district judge stated that the granting of motions
to suppress was “almost as rare as hen’s teeth. I think I have
done two in ten years and none in federal court.” We agree,
however, with the district judge that, with the evidence
stripped to its bare bones by the uncontested adverse credibil-
ity ruling, there was insufficient evidence of probable cause
to support the arrest. The order of the district court granting
the suppression motion is accordingly
AFFIRMED.
vehicle talking to a person, who then walked up and delivered a message
to another person attempting to cash an altered money order in a post
office. Howard stayed outside with his car engine running, and shifted
gears to leave when a postal inspector approached. Id. at 1319. Collins
provided no similar link to the persons known to be engaged in criminal
activity, and engaged in no other suspicious moves.