The Supreme Court itself has recognized that distinguishing a Terry investigative stop from a de facto arrest “may in some instances create difficult line-drawing problems.” United States v. Sharpe,470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). As noted by the Court in the seminal case of Terry v. Ohio,392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), each case must be decided on its own facts. “Whether an arrest has occurred depends on all the surrounding circumstances, including the extent to which liberty of movement is curtailed and the type of force or authority employed.” United States v. Robertson,833 F.2d 777, 780 (9th Cir. 1987). In reviewing the facts and circumstances of each case, we must be mindful of the narrow scope of the Terry exception — an exception based on a brief, street encounter between police and a suspect. To do otherwise would be to risk allowing the “`exception’ . . . to swallow the general rule that Fourth Amendment seizures are `reasonable’ only if based on probable cause.” Dunaway v. New York,442 U.S. 200, 213, 99 S.Ct. 2248, 2257, 60 L.Ed.2d 824 (1979); see Florida v. Royer,460 U.S. 491, 510, 103 S.Ct. 1319, 1331, 75 L.Ed.2d 229 (1983) (plurality opinion) (Brennan, J., concurring).
Although the movement of Ricardo to the patrol car is a significant factor in our analysis, we reiterate that each case is decided under the totality of the particular circumstances. For example, in conjunction with the place of detention, in Baron we considered the disparity in power stemming from the fact that Baron was a female detained by three male officers. Baron,860 F.2d at 916. Here, we take into account that a juvenile was confronted by several officers. To a limited extent, we also consider Officer Bork’s threat of arrest for providing false information as adding to the coercive atmosphere of the detention. Thus, all the circumstances, including the facts that the suspect was sixteen, taken by the arm, told not to run, and placed in the back of the police car, indicate a degree of coercion unacceptable as part of a Terry stop, and unsupportable on anything less than probable cause. We therefore hold that the officers effectively arrested Ricardo when they detained him in the patrol car for questioning.
Having determined that Ricardo was in fact under arrest during the field questioning by Officers Bork and Emery, we next briefly address the question of probable cause. Our review is de novo. United States v. Delgadillo-Velasquez,856 F.2d 1292, 1295 (9th Cir. 1988). The officers had probable cause to arrest Ricardo if, at the time of the arrest, they had knowledge and reasonably trustworthy information of facts and circumstances sufficient to lead a prudent person to believe that Ricardo had committed or was committing a crime. Holtzman,871 F.2d at 1503.
As the government apparently concedes, probable cause to arrest Ricardo did not exist prior to Ricardo’s initial admission to Agent Emery that Ricardo was the one who fled from the van. At the time of Ricardo’s arrest, the only knowledge possessed by the officers was that a “young, thin man, not too tall” had run from a van containing marijuana, and that a truck driver had picked up a “young, Mexican male” approximately one-half mile from where the van had been stopped, and had given him a ride to a pay phone in Nicksville. In a location only thirty miles north of the Mexican border, it can hardly be said that the presence of a young, Mexican male is highly unusual. Furthermore, although Officer Bork found Ricardo “crouching” behind a tree, Ricardo made no attempt to flee when approached by the officer. In sum, while there may have been reasonable suspicion to justify a Terry stop, there was insufficient information to lead a reasonable person to believe that Ricardo had committed a criminal offense. Ricardo’s arrest was, thus, illegal.
Full case: U.S. v. Ricardo D, 912 F.2d 337 (9th Cir. 1990), https://casetext.com/case/us-v-ricardo-d
Anton Vialtsin, Esq.
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