United States v. Edward D. Patterson, Richard L. Flintoff, Jimmie R. Oglesby, and Gregory C. Martinson

The appellants were convicted of narcotics offenses. Patterson, Flintoff, and Martinson, who were tried by a jury, contend that some jurors were prejudiced and that the court erred in several respects. Ogles-by, who was tried by the court, challenges its refusal to suppress evidence taken from him after he was stopped by federal agents.

I. FACTS

Flintoff, accompanied by Shevalier 1 and informant Wood, met undercover agents of the Drug Enforcement Administration (DEA) in Tacoma and arranged to sell them cocaine and heroin. The agents paid Shevalier for the drugs at the residence of Gus *628 tafson 2 and Patterson. Flintoff and Shevalier then went with the agents to a residence on South 104th Street, allegedly Martinson’s, 3 to pick up the drugs.

Flintoff and Shevalier got out of the agents’ car at the 104th Street residence and told the agents to drive around. According to Shevalier, Martinson then left the residence and returned with cocaine, which he sold to Shevalier. When the agents returned, Shevalier delivered the cocaine. He later sold them a sample of heroin.

Flintoff told the agents he could sell them more cocaine and heroin. In a second transaction, DEA agents…

648 F.2d 625 UNITED STATES of America, Plaintiff-Appellee, v. Edward D. PATTERSON, Richard L. Flintoff, Jimmie R. Oglesby, and Gregory C. Martinson, Defendants-Appellants. Nos. 79-1368 to 79-1371. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 7, 1981. Decided June 15, 1981. David L. Shorett, Chambers, Marston, Hodgins, Shorett, Young & Gillingham, Seattle, Wash., argued, for Patterson. Kelly P. Corr, Seattle, Wash., argued, for Oglesby. Katrina C. Pflaumer, Seattle, Wash., argued, for Martinson. Richard B. Jones, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before WRIGHT, POOLE and NORRIS, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 The appellants were convicted of narcotics offenses. Patterson, Flintoff, and Martinson, who were tried by a jury, contend that some jurors were prejudiced and that the court erred in several respects. Oglesby, who was tried by the court, challenges its refusal to suppress evidence taken from him after he was stopped by federal agents. I. FACTS 2 Flintoff, accompanied by Shevalier 1 and informant Wood, met undercover…

concurring specially.

I concur in the reversal of the convictions of appellants Patterson, Martinson, and Flintoff, for the reasons stated in the majority opinion. I also concur in affirming appellant Oglesby’s conviction. However, I do not believe it is possible to justify the officers’ approach to Oglesby on a founded suspicion analysis. Oglesby had never been *635 seen by the officers during this long investigation. The only “objective manifestations” that Oglesby was, or was about to be, involved in criminal activity were vague references to things that one of the officers heard, from a source unidentified to us, about the color of a car seen at another point during the stakeout, and the connection of someone with a band. Such tenuous assertions cannot form the basis for founded suspicion. Had Oglesby remained silent, I would hold that there was no basis for an investigatory stop and that his conviction should be reversed.

However, Oglesby did not remain silent; rather, immediately and voluntarily he told the officers that he had a gun. In these circumstances, justification of the officers’ approach to him becomes unnecessary. Even without prior reason to connect Ogles-by…