United States v. Ascension Alverez-Tejeda, AKA Chombi

491 F.3d 1013 UNITED STATES of America, Plaintiff-Appellant, v. Ascension ALVEREZ-TEJEDA, aka; Chombi, Defendant-Appellee. No. 06-30289. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 9, 2007. Filed June 8, 2007. James A. McDevitt, United States Attorney, and Russell E. Smoot, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellant. James E. Egan, Kennewick, WA, for the defendant-appellee. Appeal from the United States District Court for the Eastern District of Washington; Robert H. Whaley, District Judge, Presiding. D.C. No. CR-05-00126-RHW. Before: ALEX KOZINSKI, RAYMOND C. FISHER and RICHARD C. TALLMAN, Circuit Judges. Opinion by Judge KOZINSKI; Concurrence by Judge FISHER. KOZINSKI, Circuit Judge. 1 We consider the Fourth Amendment's limits on the use of trickery and force in conducting seizures. Facts 2 Ascension Alverez-Tejeda and his girlfriend drove up to a traffic light. As the light turned green, the car in front of them lurched forward, then stalled. Alverez-Tejeda managed to stop in time, but the truck behind him tapped his bumper. As Alverez-Tejeda got out to inspect the damage, two officers pulled up in a police cruiser…

Opinion by Judge KOZINSKI; Concurrence by Judge FISHER.

We consider the Fourth Amendment’s limits on the use of trickery and force in conducting seizures.

Facts

Ascension Alverez-Tejeda and his girlfriend drove up to a traffic light. As the light turned green, the car in front of them lurched forward, then stalled. Alverez-Tejeda managed to stop in time, but the truck behind him tapped his bumper. As Alverez^-Tejeda got out to inspect the damage, two officers pulled up in a police cruiser and arrested the truck driver for drunk driving. The officers got Alverez-Tejeda and his girlfriend to drive to a nearby parking lot, leave the keys in the car and get into the cruiser for processing. Just then, out of nowhere, someone snuck into their car and drove off with it. As the couple stood by in shock, the police jumped into their cruiser and chased after the car thief with sirens blaring. The police then returned to the parking lot, told the couple that the thief had gotten away and dropped them off at a local hotel.

The whole incident was staged. DEA agents learned that one of the leaders of a drug conspiracy was dealing drugs out of his car and deduced from several intercepted…

concurring:

I concur but also write separately to acknowledge the district court’s concerns about the unorthodox manner in which the seizure here was carried out. The staged collision, “theft” of the car (and all of its contents), car chase and search of Alverez-Tejeda’s apparently innocent companion had the potential to spin out of control and exceed reasonable bounds. Nonetheless, on the record before us I agree with my colleagues that the agents’ ruse stayed within bounds (even if they pushed the envelope in some respects). Although we do not sustain the district court’s thoughtful analysis, I do not thereby mean to endorse this police action as a model for future creative seizures.