NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-30187
Plaintiff - Appellant, D.C. No. 6:12-cr-00018-DLC-1
v.
MEMORANDUM*
DAVID GARY BURTON,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Argued and Submitted July 11, 2014
Portland, Oregon
Before: PAEZ, WATFORD, and OWENS, Circuit Judges.
The government appeals the district court’s pretrial order granting defendant
David Burton’s motion to suppress evidence. We affirm.1
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
We have jurisdiction under 18 U.S.C. § 3731 to entertain an interlocutory
appeal from a district court order granting a motion to suppress evidence. See
United States v. W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008) (en banc).
The Fourth Amendment permits investigatory stops of a vehicle only upon a
showing of reasonable suspicion, defined as “specific, articulable facts” that
provide “a particularized and objective basis for suspecting the particular person
stopped of criminal activity.” United States v. Jimenez-Medina, 173 F.3d 752, 754
(9th Cir. 1999) (citation and internal quotation marks omitted); United States v.
Thomas, 211 F.3d 1186, 1189 (9th Cir. 2000). To determine whether an objective
basis exists, we consider “the totality of the circumstances.” United States v.
Valdes-Vega, 738 F.3d 1074, 1078-79 (9th Cir. 2013) (en banc).
The evidence the officers relied upon in stopping Burton’s vehicle does not,
individually or collectively, support a finding of reasonable suspicion.2 See
United States v. Ramirez, 473 F.3d 1026, 1033 (9th Cir. 2007) ( reasonable
suspicion may also be established through the “collective knowledge” of multiple
officers). As the district court found, none of the three investigating officers had
any reason to suspect that a white sedan was associated with Burton or any of the
crimes they were investigating. Although the officers observed the white sedan
arriving at, and leaving, Burton’s residence, we have previously held that
“unremarkable comings and goings” of a vehicle at a house suspected of
2
“We review reasonable suspicion determinations de novo . . . .” Valdes-
Vega, 738 F.3d at 1077.
2
association with a crime is not sufficient to establish reasonable suspicion. See
Thomas, 211 F.3d at 1191.
Moreover, although the government argues that the coincidental timing of
Burton’s call to Officer Weiss while the white sedan was parked at the Shannon
Court residence creates “[a]n objective and reasonable inference from the scene []
that Burton was driving the white car,” we disagree. The government provides no
“specific, articulable facts” to link Burton’s phone call to his residence or the
presence of the white sedan; indeed, the call could have been placed from
anywhere. Even viewing these facts in light of the totality of the circumstances, the
officers lacked a “particularized and objective basis” for the investigatory stop of
the white sedan. See United States v. Valdes-Vega, 738 F.3d at 1078. We
therefore affirm the district court’s conclusion that the stop violated the Fourth
Amendment, and the order suppressing evidence seized as a result of the unlawful
stop.
The government argues that even if the evidence were obtained illegally, the
inevitable discovery doctrine permits the use of this evidence at trial. “The
inevitable discovery exception to the exclusionary rule is available when the
government demonstrates, by a preponderance of the evidence, that it would
inevitably have discovered the incriminating evidence through lawful means.”
3
United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000). Inevitable
discovery “involves no speculative elements” but focuses on “facts capable of
ready verification . . . .” Nix v. Williams, 467 U.S. 431, 444 n.5 (1984). Here, the
government’s arguments that it would have discovered the suppressed evidence
through continued investigation, personal observation, or questioning of Burton’s
wife are mere assumptions about what police may or may not have done that do
not meet the government’s burden by a preponderance of the evidence. See
United States v. Ramirez-Sandoval, 872 F.2d 1392, 1400 (9th Cir. 1989).
Accordingly, we affirm the district court’s order granting Burton’s motion to
suppress evidence.3
AFFIRMED.
3
The district court’s order left open an avenue for the government to
demonstrate, in a pretrial motion, that it discovered certain evidence through
independent sources, or that circumstances were sufficiently attenuated to allow
admission of certain evidence. Our holding does not foreclose the government’s
opportunity to pursue those pretrial options.
4
FILED
United States v. Burton, No. 13-30187 JUL 28 2014
MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I would agree with the majority that the officers lacked reasonable suspicion
if we didn’t have the phone call. But the phone call makes this an easy case.
Deputy Weiss goes to Burton’s house and leaves his card with Burton’s
wife, asking that she have Burton call him when Burton returned home. At least an
hour passes. Then, officers watching Burton’s house see a white sedan pull up and
park in the driveway. A man gets out and enters through the rear of the house,
rather than going to the front door and knocking, as would a visitor. Within
minutes, Deputy Weiss receives a call from a man identifying himself as David
Burton—the obvious inference being that Burton’s wife had just relayed the
message from Deputy Weiss to have Burton call when he returned home. Soon
thereafter, the same man walks out of the house, gets back into the white sedan,
and drives off.
We could debate whether these facts gave the officers probable cause to
believe that the man driving the white sedan was David Burton. But they
unquestionably establish reasonable suspicion. For that reason, I would reverse.