United States v. David Burton

dissenting:

I would agree with the majority that the officers lacked reasonable suspicion if we didn’t have the phone call. But the phone call makes this an easy case.

Deputy Weiss goes to Burton’s house and leaves his card with Burton’s wife, asking that she have Burton call him when Burton returned home. At least an hour passes. Then, officers watching Burton’s house see a white sedan pull up and park in the driveway. A man gets out and enters through the rear of the house, rather than going to the front door and knocking, as would a visitor. Within minutes, Deputy Weiss receives a call from a man identifying himself as David Burton — the obvious inference being that Burton’s wife had just relayed the message from Deputy Weiss to have Burton call when he returned home. Soon thereafter, the same man walks out of the house, gets back into the white sedan, and drives off.

We could debate whether these facts gave the officers probable cause to believe that the man driving the white sedan was David Burton. But they unquestionably establish reasonable suspicion. For that reason, I would reverse.

MEMORANDUM *

The government appeals the district court’s pretrial order granting defendant David Burton’s motion to suppress evidence. We affirm.

The Fourth Amendment permits investigatory stops of a vehicle only upon a showing of reasonable suspicion, defined as “specific, articulable facts” that provide “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Jimenez-Medina, 173 F.3d 752, 754 (9th Cir.1999) (citation and internal quotation marks omitted); United States v. Thomas, 211 F.3d 1186, 1189 (9th Cir.2000). To determine whether an objective basis exists, we consider “the totality of the circumstances.” United States v. Valdes-Vega, 738 F.3d 1074, 1078-79 (9th Cir.2013) (en banc).

The evidence the officers relied upon in stopping Burton’s vehicle does not, individually or collectively, support a finding of reasonable suspicion. 2 See United States v. Ramirez, 473 F.3d 1026, 1033 (9th Cir.2007) (reasonable suspicion may also be established through the “collective knowledge” of multiple officers). As the district court found, none of the three investigating officers had any reason to suspect that a white…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUL 28 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 13-30187

Plaintiff - Appellant, D.C. No. 6:12-cr-00018-DLC-

v.

MEMORANDUM*

DAVID GARY BURTON,

Defendant - Appellee.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, Chief District Judge, Presiding

Argued and Submitted July 11, 2014 Portland, Oregon

Before: PAEZ, WATFORD, and OWENS, Circuit Judges.

The government appeals the district court’s pretrial order granting defendant

David Burton’s motion to suppress evidence. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1 We have jurisdiction under 18 U.S.C. § 3731 to entertain an interlocutory appeal from a district court order granting a motion to suppress evidence. See United States v. W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008) (en banc). The Fourth Amendment permits investigatory stops of a vehicle only upon a

showing of reasonable suspicion,…