United States v. Louis Corona, Iii, Etc.

Corona was convicted of possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861 (d) and 5871. He contends that the district court erred in not suppressing the sawed-off shotgun found on his person during a pat-down search. We agree that the stop and search were not based upon a founded suspicion that Corona was about to commit or had committed a crime and that he was armed and presently dangerous, and that the findings of the district court to the contrary were clearly erroneous. We accordingly reverse.

FACTS

The evidence, viewed in the light most favorable to the government, see United States v. Henry, 615 F.2d 1223, 1230 (9th Cir. 1980), established the following facts. At about 11:45 p. m. on the night of November 14, 1980, Deputy Sheriff Wolfe, on patrol, observed Corona wearing a hat and long coat, standing near a closed garage at 224th Street and State Route 161, near Graham, Washington. The weather was cold and it was raining lightly. Across the street from Corona was a closed grocery store in which workers were stocking shelves. Deputy Wolfe knew that thefts from vehicles had occurred in the area recently.

Wolfe drove on by and spent the next 15 minutes at…

dissenting.

This is an odd case and, no doubt for that reason, a difficult one to decide. The majority’s conclusions insofar as they go are quite defensible and, were I more certain about the legitimacy of the exclusionary rule as generally applied, I perhaps would concur. But given my reservations, I must respectfully dissent.

We have been taught by Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), that “the central inquiry under the Fourth Amendment” is as to “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Id. at 19 , 88 S.Ct. at 1878 . To aid that inquiry certain verbal formulas have been developed which when applied in an even handed manner provide some consistency in the treatment of so-called “stop and search” cases. As to stops the majority repeats and applies the formula that a valid investigatory stop must rest upon “a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.” See Brown v. Texas, 443 U.S. 47, 51 , 99 S.Ct. 2637, 2641 , 61 L.Ed.2d 357 (1979). As to pat-down searches the majority states and applies the standard that such…

661 F.2d 805 UNITED STATES of America, Plaintiff-Appellee, v. Louis CORONA, III, etc., Defendant-Appellant. No. 81-1201. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 10, 1981. Decided Nov. 19, 1981. Irwin H. Schwartz, Federal Public Defender, Seattle, Wash., for defendant-appellant. Curtis J. Frush, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before SNEED and CANBY, Circuit Judges and HOFFMAN, District Judge * . CANBY, Circuit Judge. 1 Corona was convicted of possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861 (d) and 5871. He contends that the district court erred in not suppressing the sawed-off shotgun found on his person during a pat-down search. We agree that the stop and search were not based upon a founded suspicion that Corona was about to commit or had committed a crime and that he was armed and presently dangerous, and that the findings of the district court to the contrary were clearly erroneous. We accordingly reverse. FACTS 2 The evidence, viewed in the light most favorable to the government, see United States v.…