"Gone In Sixty Seconds" Scam Is OK This Once, But Not Necessarily Ideal

UNITED STATES v. ALVEREZ-TEJADA, USCA-9 No. 06-30289, 2007 U.S.App. LEXIS 13378, on appeal from USDC-WAED, before USCJs Kozinski, Fisher, Tallman, opinion by Kozinski, concurrence by Fisher, filed 08 Jun 2007.

LONG STORY SHORT: Police-staged accident and theft of suspect's vehicle, leading to discovery of controlled substances, was not outrageous enough to require suppression, but was not a recommended procedure. Binding in AK, AZ, CA, GU, HI, ID, MP, MT, OR, WA.

FACTS: DEA agents developed information indicating that the leader of a drug conspiracy was letting Defendant use his car to transport illegal drugs. Undercover officers had bought drugs from persons in that car, and on the day in question, surveillance and intercepted phone calls gave police probable cause to believe contraband was in it. DEA and local police in eastern Washington State decided to stage an incident to gain access to the car Defendant was driving.

An officer pretending to be a drunk truck driver lightly bumped the car from behind at a traffic light while Defendant and his girlfriend were in it. The car sustained no damage and Defendant and Girlfriend were totally uninjured. Local officers arrested the truck driver for DWI while other officers told Defendant and Girlfriend to park in a parking lot and leave the keys in the car. When Defendant and Girlfriend got into a police car for processing, another officer pretending to be a car thief drove off in their car, with marked units in pursuit. Police told Defendant and Girlfriend that their car had gotten away, and dropped them off at a hotel. In fact, police were obtaining a search warrant, and when the warrant issued, police found cocaine and methamphetamine in the car Defendant had been driving. Later, police returned some of Defendant's and Girlfriend's property to them, claimed that the thief had thrown the items out of the window during the pursuit.

PROCEDURE: The United States indicted Defendant in the U.S. District Court for the Eastern District of Washington [Note: the opinion does not say what exactly he was indicted for]. Defendant moved to suppress all evidence from the car as the fruit of an unreasonable seizure in violation of the Fourth Amendment. The trial court ruled that the government's conduct was outrageous and unconstitutional. MOTION TO SUPPRESS GRANTED. The United States took an interlocutory appeal to the U.S. Court of Appeals for the Ninth Circuit.

DECISION: Defendant agreed that the police could lawfully have seized the car under civil forfeiture statutes without a warrant, because the police had probable cause to believe that it contained contraband. Defendant's complaint was that the method of seizure was unreasonable, and reasonableness is the benchmark of the Fourth Amendment. The Ninth Circuit, after careful consideration of all the circumstances, could not conclude that the government's conduct was unreasonable.

Courts accept that police may and must run some operations undercover. Here, the police needed to keep their operation secret, and also had the lawful power to seize the car, so it was not a case of officers using deception to get to a place where they had no right to be. Neither did police use excessive force, only a light tap on the bumper sufficient to get Defendant's attention and get him out of the car. The staged chase was perhaps not the safest thing to do, but Defendant could not assert others' rights to be free from government-created danger absent a showing of extreme, outrageous, or shocking behavior, which he could not do. About the only stress that Defendant experienced was that of any car theft victim, although the Ninth Circuit estimated that what really alarmed him was having to face his boss after losing all those drugs in the car. GRANT OF SUPPRESSION REVERSED; cause REMANDED for further proceedings.

The concurrence expressed considerable concern about the unorthodox police conduct here, particularly that it involved the apparently innocent girlfriend. The ruse was definitely pushing the envelope, and should not become a model for future police action.

EDITORIAL: Which means that every narc who hears about this case will now want to go out and try it themselves. Maybe they should, especially seeing as how the guy had no chance or occasion to fight back or deploy weapons. I don't see how a staged pursuit can be terribly dangerous if all vehicles involved obey all traffic laws. There's nothing illegal or dangerous about two vehicles in a convoy going below the speed limit and stopping for all red lights, even if one of them happens to have emergency lights and sirens on. OJ led a slooow chase; why can't everybody? The only part I don't like is that the guy's girlfriend was in the car. This case, instead of pushing the envelope, is instead a great example of thinking out of the box.