Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-2707

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS GINES-PEREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

 Howard, Circuit Judge,

Coffin and Campbell, Senior Circuit Judges.

Steven M. Potolsky, P.A. for appellant.

Germán A. Rieckehoff, Assistant United States Attorney, with

whom H.S. Garcia, United States Attorney, and Sonia I. TorresPabón, Assistant United States Attorney, were on brief for

appellee.

March 18, 2004
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Per curiam. On July 6, 1998, defendant-appellant Luis

Gines-Perez was arrested after the car he was driving was stopped

and found to be carrying 1.4 kilograms of heroin. Gines-Perez

eventually pleaded guilty to three counts of an indictment charging

him with narcotics distribution-related offenses, but reserved the

right to appeal the denial of his suppression motion. The motion

challenged the legality of the initial stop and warrants that

subsequently issued for searches of Gines-Perez's business and

home.

There is no dispute that Gines-Perez's car was originally

stopped because, and only because, it was reported stolen; that the

report was based on incorrect information in a computer database

used by the Puerto Rico police; that police error caused the

database to be incorrect; and that the incorrect database

information was itself misinterpreted (in a manner unfavorable to

Gines-Perez) by the police dispatcher who informed the arresting

officers that the vehicle was stolen. These police errors were the

basis of Gines-Perez's suppression motion, which argued that there

were no grounds for stopping his car or for the subsequent search

warrants that issued because of the material found in his car. The

district court rejected this argument, holding (inter alia) that

the good faith exception identified in Arizona v. Evans, 514 U.S.

1, 10-16 (1995), applied to the conduct of the arresting officers.

The primary basis for the district court's decision,
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however, was its conclusion that, viewing "the totality of the

circumstances," there were sufficient grounds to sustain the search

under the "reasonable suspicion" doctrine of Terry v. Ohio, 392

U.S. 1 (1968). In support of this conclusion, the court relied

primarily on the following facts: one of the officers involved in

the arrest knew that Gines-Perez previously had been arrested and

that he had been the subject of surveillance for money laundering

and drug trafficking; Gines-Perez was observed entering the same

restaurant where another person under surveillance was dining just

prior to his arrest; after exiting the restaurant with a companion

and sliding behind the wheel of his vehicle, Gines-Perez lifted his

shirt to show his companion something in a manner that aroused

suspicions; and Gines-Perez drove around the block twice after

exiting the restaurant. But significantly, the court's Terry

analysis was not entirely independent of its Evans analysis; the

court also included in its view of the totality of the

circumstances the fact that "the car driven by Gines-Perez was

reported as "stolen."

We are troubled by the district court's reading of Evans

as extending the good faith exception to reliance by an arresting

officer on faulty computer database information due to police

error. This reading was dispositive of Gines-Perez's arguments

based on police error and, as noted above, implicated in the

court's totality of the circumstances decision. We can understand
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how the district court arrived at its position. It acknowledged

its reliance on the language in Evans framing the issue identified

in the grant of certiorari, i.e., whether evidence seized because

of an inaccurate computer record should be suppressed "regardless

of whether police personnel or court personnel were responsible .

. . ." Evans, 514 U.S. at 6.

In this instance, however, such reliance on Evans takes

that case beyond its underlying facts and holdings, for the Court

explicitly declined to reach the issue. See id. at 16 n.5 (stating

that the Court would not address whether the good faith exception

would apply to police error); id. at 16-17 (O'Connor, J.,

concurring) (arguing against application of the exception to police

error). The government makes no effort to defend the district

court's reading of Evans on appeal. Nor does the government argue

that the Evans good faith exception should apply under the

circumstances of this case.

Inexplicably, Gines-Perez's opening brief makes no

mention of the additional grounds cited in support of the court's

Terry ruling. Indeed, the brief reads as though the entire basis

for the court's rejection of his suppression motion was the court's

conclusion that the Evans good faith exception applied to the

arresting officers' conduct. In ignoring what might be read as

alternative independent grounds for upholding the stop, Gines-Perez

comes dangerously close to a forfeiture. See United States Public
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Interest Research Group v. Atlantic Salmon of Maine, LLC, 339 F.3d

23, 33 (1st Cir. 2003) (argument not presented in opening brief is

forfeited). 

Yet under the circumstances, we believe that the fairer

course of action is to vacate and remand for clarification and for

further proceedings consistent with this opinion. Two factors lead

us to adopt this approach. First, as already noted, the district

court misread Evans as flatly governing this case (which it does

not), and the stolen vehicle report appears to be part of the

court's Terry calculus. Second, it can be argued (although we do

not now decide) that there is difficulty seeing how, other than the

stolen vehicle report, the officers involved in the investigation

that led to Gines-Perez's apprehension could be found to have had

a "particularized and objective basis for suspecting [Gines] of

criminal activity" at the time of his initial detention.

Ornelas v. United States, 517 U.S. 690, 696 (1996) (describing the

"reasonable suspicion" required to justify a Terry stop) (citation

and internal quotation marks omitted). Along these lines, we note

that the government does not identify the crime a reasonable

officer armed with knowledge of all the facts other than the stolen

vehicle report might have suspected Gines-Perez of committing,

having committed, or being about to commit. But at the same time,

we do not wish to decide the matter without giving the district

court an opportunity to revisit the case in light of our opinion.
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On remand, the district court may order additional

briefing and/or argument to help facilitate its reaching whatever

decision it deems appropriate. We also call the parties' attention

to the Supreme Court's recent decision in Groh v. Ramirez, 124 S.

Ct. 1284 (2004), which might have some bearing on Gines-Perez's

challenge to the search warrants. We shall retain jurisdiction

over this appeal with the understanding that it will be dismissed

should the court vacate or modify the judgment of conviction from

which Gines-Perez appeals. The parties are directed to file a

joint status report within 30 days of the court's disposition of

this matter following our remand. At that point, we shall issue

whatever additional orders we deem appropriate.

 So ordered.