United States v. Lyle Gerald Johns

891 F.2d 243 UNITED STATES of America, Plaintiff-Appellee, v. Lyle Gerald JOHNS, Defendant-Appellant. No. 86-1220. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 14, 1987. Reargued and Submitted May 11, 1988. Reargued and Submitted Feb. 16, 1989. Decided Dec. 7, 1989. Walter B. Nash, III, Tucson, Ariz., for defendant-appellant. Eugene R. Bracamonte, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before MERRILL and NORRIS, Circuit Judges, and ENRIGHT, District Judge * . WILLIAM A. NORRIS, Circuit Judge: 1 In appealing his marijuana-related convictions, Johns challenges the district court's failure to suppress marijuana which he claims was the fruit of an illegal stop. We find his contention meritorious and reverse his conviction. 2 * In the early morning of August 4, 1981, a Tucson Customs agent requested the Pima County Sheriff's Office to investigate the landing of a small airplane at Tucson Dragway, a private landing strip owned by Johns. The time and place of the landing, plus an informant's tip, made Customs suspicious of illegal activity. Sheriff's officers stopped…

In appealing his marijuana-related convictions, Johns challenges the district court’s failure to suppress marijuana which he claims was the fruit of an illegal stop. We find his contention meritorious and reverse his conviction.

I

In the early morning of August 4, 1981, a Tucson Customs agent requested the Pima County Sheriff’s Office to investigate the landing of a small airplane at Tucson Dragway, a private landing strip owned by Johns. The time and place of the landing, plus an informant’s tip, made Customs suspicious of illegal activity. Sheriff’s officers stopped Johns and his codefendant, Dennis Hearron, as they were leaving the airstrip. According to the officers, four or five vehicles and six or seven officers surrounded Johns’ truck to effect the stop. As a result of the stop, the officers learned the identity of Johns and Hearron. Without a warrant, the officers searched Johns’ truck and airplane but discovered no contraband. At the suppression hearing, the government conceded that the stop violated the Fourth Amendment.

As a result of the officers’ identification of Johns and Hearron, Customs agents drew upon prior information about Johns’ association with suspected…

dissenting:

This case has an unusual and protracted history. In 1981, the district court suppressed the marijuana for failure to obtain a warrant prior to taking core samples of the suspected contraband. This court upheld the suppression, but the United States Supreme Court reversed and remanded. United States v. Johns, 707 F.2d 1093 (9th Cir.1983), rev’d, 469 U.S. 478 , 105 S.Ct. 881 , 83 L.Ed.2d 890 (1985).

On remand, appellant again moved to suppress the marijuana, on grounds that its seizure was tainted by a prior illegal vehicle detention. The district court denied the motion, and appellant was tried and convicted in June 1986. All other defendants entered guilty pleas and were sentenced.

On July 30, 1986, Johns filed an appeal, which was heard on August 14, 1987. His conviction was affirmed by this court pursuant to Memorandum Decision dated September 22, 1987. On November 3, 1987, Johns petitioned the court for a rehearing which was conducted on May 11, 1988.

This case was subsequently remanded to the district court for the limited purpose of making additional findings of fact. In light of the district court’s findings, this court ordered supplemental briefing. Oral…