United States v. Anthony John Devita, Jr.

OPINION ON PETITION FOR REHEARING

Appellant’s petition for rehearing is granted and our prior decision is withdrawn.

This was a conviction for marijuana possession with intent to distribute [ 21 U.S.C. § 841 (a)(1)] and for conspiracy to possess with such intent [ 21 U.S.C. § 846 ]. Was there founded suspicion to justify the stop of DeVita’s vehicle? The district court thought so and denied a motion to suppress. In this, we conclude that it erred because the officers who stopped DeVita’s car did not have sufficient facts to warrant the stop.

Early in 1974 an agent of the Drug Enforcement Administration (DEA) learned from a previously untested informant that appellant was moving contraband from San Diego to Pittsburgh, Pennsylvania. Periodic surveillance followed for five months at DeVita’s San Diego residence. Nothing unusual was observed. Late in June, the same informant told the officer that “a Mr. DeVita would be transporting some type of narcotics, possibly to the Pittsburgh area, some time in the near future.”

Responding to this tip, surveillance was resumed at DeVita’s home and at that of Rattiner, believed to be an associate. The surveillants followed Rattiner, his wife…