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United States v. Gust


June 27, 2001


The opinion of the court was delivered by: Brown, Judge.


Defendants are charged in a five-count Superseding Indictment with mail theft and possession of stolen mail in violation of 18 U.S.C. §§ 1708 and 2 (Counts 1, 2, and 5) and unlawful possession of a counterfeit mailbox key and lock in violation of 18 U.S.C. §§ 1704 and 2 (Counts 3 and 4). All three Defendants are named in Counts 1-4. Only Defendant Grasseth is named in Count 5, which charges possession of a stolen Personal Identification Number (PIN) for a credit card. Defendants were arrested following an early morning stop. They filed motions to suppress evidence arguing there was no reasonable suspicion for the stop and the police lacked probable cause for the ensuing non-consensual search of their vehicle. Defendant Phillips also moved to suppress statements she provided following her arrest on grounds that her statements constitute "fruit" of the illegal stop and search. Defendants Grasseth and Phillips have moved to join in all motions filed by Co-Defendants. The motions for joinder are unopposed.

The government contends the arresting officer had reasonable suspicion for the initial stop which ripened into probable cause to believe that evidence of a crime would be found in the vehicle. Thus, the government asserts the warrantless search is justified under the automobile exception. For the reasons that follow, Defendants' motions to suppress are DENIED.


The Court finds the following facts by a preponderance of the evidence:

At approximately 2:00 a.m. on February 16, 2001, Polk County Sheriff's Sergeant Robert Ruark was on patrol on Wallace Road in a remote section of the West Salem area. He noticed a minivan with its headlights on parked off of Riverbend Road NW in a driveway next to where he knew, from nine years patrol experience in the area, there was a row of mailboxes. Ruark, however, could not actually see the mailboxes from where he was stopped. The driveway, approximately four car-lengths wide, is set in from Riverbend Road NW by a few feet and then branches off into two driveways: one leading to a sand and gravel business (which was closed at this hour) and one leading to a residence.

Sergeant Ruark had heard from other officers that there had been recent thefts and attempted thefts in the area.*fn1

Remaining on Wallace Road in his marked patrol vehicle, Ruark waited and watched the van for several minutes. He initially thought the van might be delivering newspapers; however, he became suspicious and decided to investigate when the van did not move.

Ruark drove to the van, pulled along its rear left side, and stopped. From that position, he observed the driver look to the patrol car, then turn and lean back toward the center of the back seat. As the driver sat back, the front passenger also leaned toward the center back seat. The driver then leaned toward the center of the back seat again. During these movements, Ruark noticed the van brake lights activated three times, and the van rocked from side to side as though someone in the back was moving around hurriedly. Indeed, Defendant Brandy Michelle Phillips testified she had been sitting in the front passenger seat, and, when she realized a police officer was approaching, she and Defendant Dominic Alan Grasseth changed places shortly before Deputy Ruark approached the van because she knew she had warrants out for her arrest and she thought she might be less recognizable if she moved to the back seat. There were no side passenger windows on the van, however, and Ruark could not see if anyone was actually in the back of the van.

At this point, Ruark activated his overhead vehicle lights and requested cover. There is no dispute this action constituted a "stop" even though the van had been parked.

Ruark approached the driver (Defendant Mark Elwayne Gust), determined there was a rear passenger (Defendant Phillips), and told the occupants that he was concerned about them being in an area where thefts had recently occurred. Ruark noticed Gust's leg was shaking nervously as he spoke with him. In response to Ruark's questions, Gust and the front passenger (Defendant Grasseth) indicated they did not know anyone in the area and they did not live in the area. Gust said they were parked in the area, "just talking." Phillips claimed she lived in Falls City. Ruark thought Defendants had chosen an odd place to park for a talk given that none of them lived in the area, the right side of the van was very close to the mailboxes, the driveway was so large they could have easily pulled over in another location where the mailboxes would not have blocked or partially blocked the passengers' access, and they could have parked further into the driveway if they wanted greater privacy from the main road.

During this initial questioning, Ruark noticed a large, apparently full, black plastic bag on the rear floor by Defendant Phillips's legs covered almost completely by a blanket. The bag was in a position consistent with where he had seen the driver and the front passenger repeatedly leaning. Ruark also noticed the passenger side rear-view mirror was pulled in toward the front passenger,*fn2 the front passenger window was down, a door to one of the mailboxes was hanging completely open, two other mailboxes were open "a crack," and one mailbox was open approximately one inch.

When Ruark asked for identification from all three, Grasseth's hands shook as he handed out his I.D. and Phillips denied she had any I.D. with her. Phillips said her name was Tambree Yarbrough and her birth date was 2/26/76.

Sergeant Ruark returned to his patrol car to run a computer check on the three individuals. He watched as Gust observed him in the van's side rearview mirror and as Gust leaned back between the seats again. Grasseth rolled up the front passenger window.

The computer check revealed Grasseth was on felony probation for unauthorized use of a vehicle. Another officer advised Ruark by radio that Grasseth also was a suspect in a recent burglary in Dallas, Oregon. Gust had a prior record of felony parole for failure to appear. The "Yarbrough" name had no record, but was associated with a birth date of 2/24/76, two days off from the date Phillips had provided.

Cover officers arrived at some point. Ruark returned to the van and asked Gust to step out. Gust complied. Gust denied having any weapons, drugs, or stolen property on his person and consented to a pat-down search. Ruark repeated the same procedure with Grasseth. Both pat-down searches were unremarkable; however, Ruark discovered a wadded-up piece of paper on Grasseth that was later determined to be stolen mail (a PIN document involved in Count 5). It is unclear whether Ruark unfolded or examined the paper, but he apparently did not notice its evidentiary value at the time because he simply returned the paper to Grasseth's pocket.

Ruark asked Phillips her date of birth again, and she repeated the 2/26/76 date. He then asked her what was under the blanket near her feet and, after some shuffling, she replied, "[N]othing." Ruark then asked Phillips to exit the van. Deputy Tara Duncan, one of the back-up officers, conducted a pat-down search with Phillips's consent.

After questioning Phillips, Sergeant Ruark returned his attention to Gust and, again, asked him why he was at this location. Gust claimed that he used to work at the sand and gravel company, and they were just there to talk. Ruark asked, and Gust denied, there were any drugs, weapons, or stolen property in the van. Ruark asked for consent to search the van, but Gust refused permission to search the van. Ruark told Gust he believed he had "reasonable suspicion" that a crime had been committed. Gust denied this assertion and then claimed that he was just there waiting to pick up a friend from work. Ruark pointed out this claim was inconsistent with Gust's earlier explanation that they were just talking. Gust continued to assert that Ruark had no right to search the van and stated, "[W]e'll see if you can search, when you find . . . ." Gust then stopped talking and looked to the ground. Officer Ruark asked, "[F]ind what?" Gust replied, "[W]e'll see."

Following this exchange, Ruark concluded he had probable cause to search the van for evidence of the crime of mail theft. Ruark walked away from Gust and over to the van. He reached into the van and removed the blanket from around the bag.*fn3 He then opened the bag and discovered stolen mail. As the search continued, he discovered a missing credit card, a police scanner, an apparent methamphetamine pipe, seven boxes of Actifed tablets, ten boxes of Aphedrid tablets (used in methamphetamine production), three used syringes, and a fabricated postal key.

Ruark also later determined Gust was under the influence of drugs.

The deputies transported the three suspects to the Polk County Jail. Phillips's true identity was determined, and officers learned she was the subject of several warrants for mail and identity theft. Additional evidence was discovered during a more thorough search of the Defendants.


A. Reasonable Suspicion for the Initial Stop

Traffic stops are seizures under the Fourth Amendment. Officers must have at least a reasonable suspicion that a violation has occurred when deciding to stop a vehicle. United States v. Rojas-Millan, 234 F.3d 464, 468-69 (9th Cir. 2000). Reasonable suspicion "is formed by specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the person detained is engaged in criminal activity." Id. Reasonable suspicion "cannot be based on overbroad generalizations." United States v. Sigmond Ballesteros, 247 F.3d 943, 949 (9th Cir. 2001). Innocuous conduct may justify a stop only if there is other information or surrounding circumstances tending to make the overall scenario suspect. See id. at 948. See also United States v. Montero-Camargo, 208 F.3d 1122, 1130 (9th Cir.), cert. denied, 121 S. Ct. 211 (2000). However, "[w]here a factor and its opposite can both be used to justify a stop, the court should not give weight to either factor." Sigmond Ballesteros, 247 F.3d at 948.

In making a reasonable suspicion determination, the court should consider the totality of the circumstances. United States v. Osborn, 203 F.3d 1176, 1181 (9th Cir.), cert. denied, 530 U.S. 1237 (2000). Factors pertinent to this case that the court may consider include: (1) characteristics of the area;*fn4 (2) usual traffic patterns and time of day; and (3) the behavior of the driver and/or passengers.*fn5 See United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997) (citations omitted) (listing factors relevant to reasonable suspicion determination for border patrol stop). All of these factors should be considered in light of the officer's experience. Sigmond Bellesteros, 247 F.3d at 952. However, such experience "does not itself serve as an independent factor in the reasonable suspicion analysis." Montero-Camargo, 208 F.3d at 1131.

In this case, before executing the stop, Sergeant Ruark saw a van with its headlights on parked next to a row of mail boxes near the driveway of a closed business in a remote location in the general vicinity of a recent report of an attempted theft. There was no other traffic in the area, and the number of legitimate reasons why someone would be in that location at 2:00 a.m. were limited. Sergeant Ruark waited for several minutes after sighting the van to determine whether it might be parked there to deliver newspapers. Only when he determined the van was not there for the purpose of making a brief delivery did he decide to approach and to investigate further. Ruark appropriately did not immediately assume the van was present for unlawful purposes.

Before activating his lights, Sergeant Ruark noticed the driver observe the patrol car*fn6 and lean into the center back of the van with sufficient agitation to cause the brake lights to activate three times. The behavior of the driver upon his sighting of the police car also heightened suspicion since the movement was consistent with that of someone attempting to conceal something within the van.

At the hearing, Defendants argued the movement of the van was just as consistent with a clandestine romantic encounter by teenagers and, thus, this factor should not be considered in assessing whether reasonable suspicion justified the stop. Although plausible, the Court finds such an assumption would not have been made by a reasonably prudent officer in this circumstance for at least three reasons: First, the location near the roadside would not have afforded much in the way of privacy. Other nearby and readily accessible parking spots well away from the mailboxes would have been far more attractive to amorous teenagers. Second, teenagers would have turned off the headlights, again to avoid eliciting attention to their vehicle. Third, Ruark observed the driver in the front seat twist his body to the back of the van as the officer approached. If the rear movements had been made by frolicking teenagers, it seems unlikely that anyone would have been sitting in the front of the van.

Considering the totality of the circumstances, the Court finds Sergeant Ruark had reasonable suspicion to believe that the occupants of the van may have been engaged in illegal activity.

B. Probable Cause under the Automobile Exception

"[P]olice may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained." California v. Acevedo, 500 U.S. 565, 580 (1991). Probable cause is a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). A probable cause determination is a common sense inquiry based on the totality of circumstances. Id. A vehicle lawfully in police custody may be searched on the basis of probable cause to believe that it contains contraband, and there is no requirement of exigent circumstances to justify the warrantless search. See United States v. Spires, 3 F.3d 1234, 1237 (9th Cir. 1993).

After considering the facts justifying the initial stop, the most suspicious additional fact identified in Sergeant Ruark's investigation was the open passenger window closely alongside a row of mailboxes that appeared to be in varying stages of being opened. Next, the officer had three individuals who did not live in the area, and who admitted they didn't know anyone who did live in the immediate area, sitting in a van in the middle of a cold, February night "talking" with a window open. Combined with additional furtive movements by the van's occupants toward the rear center of the van, Gust's nervous demeanor and inconsistent and vague explanation for their presence, Phillips's incorrect birth date, and Gust and Grasseth's criminal history, the totality of the circumstances gave rise to the officers' belief that a crime or attempted crime had been committed.

Defendants argue that while Ruark may have suspected something was amiss, he lacked probable cause to believe that any evidence of a crime would be found in the van. Defendants point out most people retrieve their mail from their mailboxes during the day so that it is unlikely anyone rifling through mailboxes at 2:00 a.m. would be successful in stealing anything. Defendants contend, therefore, the circumstances known to the officer did not make it likely he would find evidence of mail theft in the van.

Defendants' argument might be persuasive save for the fact that the occupants of the vehicle made several movements indicating a heightened interest in shielding something hidden in the back seat from the officer's view. Upon seeing the officer, Gust and Grasseth turned their attention to the center of the back seat. When Ruark began questioning Defendants, Phillips positioned herself directly above the bag containing stolen mail in the same location where Gust and Grasseth had just been seen directing their attentive efforts. In plain view, the officer could see there was some sort of a bag under Phillips's seat and someone had attempted to cover the bag with a blanket. Although a close question, all of these additional factors and actions considered in the totality of the circumstances are sufficient to give a reasonably prudent officer probable cause to believe that, despite the hour, these Defendants were successful in their efforts to retrieve mail from the nearby boxes and that a search of the vehicle would yield evidence of that crime.


Based upon the foregoing, the Court finds that Sergeant Ruark had reasonable suspicion to make the stop of the van and that his suspicion ripened to probable cause to believe that evidence of the crime of mail theft would be found in Defendant's vehicle. There is no dispute regarding standing and, thus, Defendants' motions to join are appropriate. Accordingly, Defendants' motions to join (#36, 37) are GRANTED; Defendants' motions to suppress (#29, 33) are DENIED; and Defendant Phillips's motion to suppress statements based upon taint from the initial search (raised with her reply memo) is also DENIED.


DATED this 27th day of June, 2001.

ANNA J. BROWN United States District Judge

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