9th Cir.: Probable cause can dissipate after an arrest, as it did here

The police stopped the defendant based on reasonable suspicion and a belief that he was the shooter in an incident. After the arrest, however, it became obvious that probable cause no longer existed to believe that defendant was the shooter, and the contination of the arrest became unlawful. Even the alternative theory of probable cause advanced by the government showed dissipation. United States v. Lopez, 482 F.3d 1067 (9th Cir. 2007):

The government’s analysis, however, overstates the significance of Lopez’s connection to the getaway car, insofar as it is contended that the connection shows Lopez was the attempted shooter. But cf. infra Part IV.C. And, more importantly, the government’s analysis fails to account for substantial, countering indicators. The effect of evidence which may support, or incline toward, a finding of probable cause can, of course, be vitiated by countervailing evidence. See Ortiz-Hernandez, 427 F.3d at 574. This was the case here, where there was substantial evidence known to the police tending to show that the defendant was not the person responsible for the earlier attempted shooting.

It is well established that a person’s mere presence or “mere propinquity to … criminal activity does not, without more, give rise to probable cause.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (holding that police lacked probable cause to search a person based solely on his presence in a tavern at a time when the police had reason to believe the bartender possessed heroin for sale). We have distinguished the “mere presence” doctrine from cases in which the “facts and circumstances … support an inference that [an] individual is connected to the proximate criminal activity.” United States v. Buckner, 179 F.3d 834, 839 (9th Cir. 1999). Although the government argues that this is such a case, we find this case distinguishable from Buckner and the other cases cited by the government.

In Buckner, we concluded that the “attendant facts and circumstances support[ed] a fair probability” that the defendant—the sole passenger in a car carrying thirty-seven pounds of marijuana hidden in the dashboard and rear panels—“was linked to the crime of drug trafficking.” Id. We noted a number of relevant facts, including the following: the car belonged to neither occupant and was procured under suspicious circumstances, the car was entering the United States from a Mexican city known as a drug source, and officers considered it typical for drug traffickers to travel in pairs to deflect suspicion. Id. at 837, 839; see also Carranza, 289 F.3d at 640 (finding probable cause where inspectors knew that defendant was sole passenger in vehicle carrying commercial quantity of illegal drugs across the border; there was strong smell of gasoline coming from the vehicle, and gas tanks are frequently used to smuggle drugs; and driver of the vehicle made suspicious, false statements); United States v. Valencia-Amezcua, 278 F.3d 901, 906-08 (9th Cir. 2002) (finding probable cause based on defendant’s physical proximity to the crime scene-and suspicious conduct in helping to attempt to conceal a secret door).

[7] The instant case is unlike Buckner, Carranza, and Valencia-Amezcua in several respects. To begin, Lopez was not directly or immediately associated with the scene of the crime (the attempted shooting). The public parking lot to which he delivered Ms. Polish (approximately eight hours after the incident involving the Ford Focus driver and the law enforcement officers) was at least some distance away from the crime scene, and Lopez did not make direct contact with the getaway vehicle—Polish was the one to take possession of the Ford Focus. In Buckner and Carranza, by comparison, the arrested person was present in a car when it was found to be transporting illegal drugs—providing both temporal and physical proximity to the commission of a crime. See Buckner, 179 F.3d at 838; Carranza, 289 F.3d at 637-39; see also Valencia-Amezcua, 278 F.3d at 907-08 (noting defendant’s physical and temporal proximity to the crime scene).

[8] Moreover, we find that attendant facts gathered by the police tended to dissipate, rather than support, probable cause to believe Lopez was the attempted shooter. After he was stopped, Lopez was positively identified as Hosvaldo Lopez, the registered owner of the Ford Taurus he was driving. When the police removed Lopez’s driver’s license from his wallet, they could readily compare it with the information they had from the Department of Motor Vehicles regarding the owner of the Ford Focus and see that Lopez and Gamez had different names. The police were also in a position to observe that Lopez’s appearance did not match the Department of Motor Vehicles’ physical description of Gamez. It should then have been manifest that Lopez was not Gamez, the registered owner of the getaway car. Furthermore, police officers testified that “Lopez was actually very cooperative” and responded appropriately and “without hesitation” to all of the officers’ requests. Cf. United States v. Mills, 280 F.3d 915, 921 (9th Cir. 2002) (finding that defendant’s suspicious remarks to the police were a factor supporting probable cause).

[9] By the time Lopez was brought to the police station for questioning and to give consent to the search of his car, the police had observed and gathered a substantial amount of information. Given the totality of the facts the police had assembled by the time they commenced questioning Lopez at the police station, we conclude that the police did not then have probable cause to believe that Lopez was the attempted shooter.