FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-50065

Plaintiff-Appellant, D.C. No.

v.  CR-03-00629-FMC05 GWAINE COLLINS,

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the Central District of California

Florence Marie Cooper, District Judge, Presiding

Argued and Submitted

February 7, 2005—Pasadena, California

Filed October 28, 2005

Before: Harry Pregerson, William C. Canby, Jr., and

Robert R. Beezer, Circuit Judges.

Opinion by Judge Canby

14833
COUNSEL

Fred A. Rowley, Jr., Assistant United States Attorney, Criminal Appeals Section, Los Angeles, California, for the

plaintiff-appellant. 

Sonia E. Chahin, LaCanada, California, for the defendantappellee.

OPINION

CANBY, Circuit Judge: 

Gwaine Collins was indicted with five others and charged

with conspiracy to retain and deliver, and retaining and delivering, stolen United States treasury checks. See 18 U.S.C.

UNITED STATES v. COLLINS 14835
§§ 371, 510(b). He moved to suppress evidence found in a

search following his warrantless arrest. The district court concluded that Collins’ arrest violated the Fourth Amendment

because federal agents did not have probable cause to believe

that he was participating in the stolen treasury check “ring.”

The district court consequently suppressed the fruit of the

arrest. The government appeals pursuant to 18 U.S.C. § 3731.

We affirm the district court’s order. 

I

A major development in the district court frames the district court’s factual findings and our decision on appeal. The

district court found inexplicable discrepancies between, on the

one hand, the events as depicted in an audio recording and

reports of agents nearly contemporaneous with the arrest and,

on the other hand, later statements, reports and testimony of

the agents. Accordingly, the district court discredited the later

statements, reports and testimony, and confined its determination of probable cause to the sparse earlier evidence. The government does not challenge the adverse credibility finding on

appeal, but contends that the remaining evidence was sufficient to establish probable cause. We agree with the district

court, however, that the evidence, with its crucial gaps and

lack of facts connecting Collins with the other actors, was

insufficient. 

II

The evidence accepted by the district court as credible

established the following. The United States Secret Service

began investigating a “ring” trafficking in stolen treasury

checks. The investigation focused on Michael Pass. Pass frequently met with a confidential informant. Pass often provided stolen checks to the confidential informant, in pursuit

of a scheme to negotiate the checks and deposit the proceeds

in offshore bank accounts. The two met several times in an

office building in California. Pass told the confidential infor14836 UNITED STATES v. COLLINS
mant that he had several “connect[s]” (sources) for the stolen

checks. 

On July 31, 2003, Pass agreed to deliver several stolen

checks, with a total face value exceeding $400,000, to the

confidential informant. Pass told the confidential informant

that his “connects” wanted payment for the checks. At the

meeting, the confidential informant wore a wire that transmitted back to federal agents waiting outside the office building.

The conversation was recorded. The confidential informant

also remained in occasional contact with the agents through

a phone in the office. Two agents maintained surveillance of

the public parking lot next to the office building. 

Pass had arrived at the meeting alone with several stolen

checks, but he stated that more checks were on their way.

After making and receiving several calls on his cellular

phone, Pass told the confidential informant that his “guys”

would arrive within ten minutes with more checks.1 He then

told the confidential informant that he was going downstairs

to his car, where he was going to make the exchange and

bring back the rest of the checks. 

Pass went into the public lot under surveillance and sat in

his car. Shortly thereafter, a white Cadillac pulled into the

parking space next to Pass’s car. Almost immediately thereafter, a gray Toyota Corolla pulled into the parking space on the

other side of Pass’s car. 

The agents then observed a Hispanic male (Edgardo Flores)

enter Pass’s vehicle. It is not at all clear where Flores came

1The district judge stated that a “fair reading of the transcript supports

the conclusion that Pass was expecting more than one person.” Collins

does not dispute this interpretation. Therefore, even though the government’s use of the word “guys” in its briefs is not completely accurate in

the context of the entire transcript, we assume that Pass intended to meet

one or more persons. 

UNITED STATES v. COLLINS 14837
from. The government does not contend that agents observed

Flores and Collins arrive together in the white Cadillac, but

it suggests that agents could properly infer that the men

arrived together from their appearance at approximately the

same time, coupled with other surrounding circumstances.

Because two cars arrived almost simultaneously on each side

of Pass’s vehicle, however, there is no way of knowing which

one (if, indeed, either) brought Flores to the scene. 

Agents next observed an “African-American male, later

identified to be Collins,” standing next to the Corolla and

talking to its driver. Again, it is not entirely clear where Collins came from. The government does not contend that agents

observed Collins drive the Cadillac into the lot, but it argues

that agents could infer that fact from the timing of the car’s

arrival and the surrounding circumstances. [Id.] That may be

a reasonable inference. 

Pass and Flores then got out of Pass’s car and approached

the office building. Once they were inside, agents arrested

them and found an envelope of stolen checks. [Id.] 

Meanwhile, Collins finished speaking with the driver of the

Corolla and entered a Quizno’s restaurant that bordered the

parking lot. Collins purchased a drink and walked out of the

restaurant. Agents entered the lot and arrested him and the

driver of the Corolla (Sergio Balsinde).2 This arrest occurred

at the same time that officers arrested Flores and Pass. [Id.]

Police later released Balsinde. 

2After arresting Collins, police impounded his car. A subsequent inventory search produced, among other things, a day planner that contained

account information that the confidential informant had given Pass. The

district court suppressed this evidence because it was the fruit of the

unlawful arrest. 

14838 UNITED STATES v. COLLINS
III

[1] We conclude that the agents lacked probable cause to

believe that Collins was committing, or had committed, a

criminal offense.3 We recognize that the standard for probable

cause is not terribly demanding. It merely asks whether, under

the totality of the circumstances, a prudent officer would have

believed that there was a fair probability that Collins committed a crime. E.g., United States v. Hernandez, 322 F.3d 592,

596 (9th Cir. 2003) (stating standard). On the record before

us, the answer is “no.” 

[2] As the district judge noted, the relevant inquiry is what

the agents knew, collectively, at the time they arrested Collins. Facts uncovered after the arrest are irrelevant. See Allen

v. City of Portland, 73 F.3d 232, 236 (9th Cir. 1996)

(amended opinion) (stating that facts uncovered “as a result of

a stop or arrest cannot be used to support probable cause

unless they were known . . . at the moment the arrest was

made.”). As the facts already recited indicate, the only thing

the agents knew about Collins was that he had shown up (perhaps in the white Cadillac) in a public parking lot, had talked

briefly to the driver of another car in that lot, and had gone

into a fast-food restaurant and purchased a drink. It is true that

the agents were expecting a person or persons to arrive in the

lot who would be carrying stolen checks. At least one such

person, Flores, did arrive and was carrying checks. Entirely

missing, however, was any connection between Collins and

Flores other than the fact that they appeared (from somewhere) in a public parking lot relatively contemporaneously.

Equally missing is any connection between Collins and Pass.

[3] These facts did not give rise to a fair probability that

Collins was part of the conspiracy. The principal fact that tied

3We review de novo whether agents had probable cause for a warrantless arrest. United States v. Juvenile (RRA-A), 229 F.3d 737, 742 (9th Cir.

2000). 

UNITED STATES v. COLLINS 14839
Collins to this criminal activity was his “mere propinquity to

others independently suspected of criminal activity,” which

“does not, without more, give rise to probable cause.” Ybarra

v. Illinois, 444 U.S. 85, 91 (1979) (holding that officers

lacked probable cause to search the defendant solely because

of his presence in a tavern in which the officers suspected the

bartender dealt heroin). The facts showed only that Collins

was close to the wrong people at the wrong time. 

[4] The connections ended there. Collins was not associating with a suspected conspirator. Furthermore, before arresting him in the public parking lot, the agents had never

suspected Collins, or even heard of him, throughout their

lengthy investigation of the stolen check ring. There simply

was no individualized suspicion of Collins, save whatever

was lent by proximity and timing.4See id. at 90-91. While this

knowledge may have created reasonable suspicion, it did not

rise to the level of probable cause. 

The government challenges this conclusion, primarily relying on Maryland v. Pringle, 540 U.S. 366 (2003). In Pringle,

the Supreme Court held that officers had probable cause to

arrest the defendant for possession of cocaine because officers

found cocaine in the rear seat of a vehicle in which Pringle

was the front-seat passenger, they found a large amount of

cash in the glove box in front of Pringle, and the other two

occupants denied ownership of the cocaine. Id. at 368, 372.

The government contends that the case at bar is closer to

Pringle than Ybarra. 

4This case is therefore distinguishable from United States v. Segars, 31

F.3d 655 (8th Cir. 1994), cited by the government. In Segars, there was

reason in addition to timing to single Segars out because, among other reasons, police knew that the suspected drug courier would arrive at a certain

place in Minnesota in a vehicle with Michigan license plates. Id. at 659.

After the scheduled arrival, Segars went directly to the apartment door of

a known drug dealer. Id. Here, however, agents had no personal information about Collins or his vehicle and no other facts to identify Collins as

a probable co-conspirator. 

14840 UNITED STATES v. COLLINS
In Pringle, however, officers found the defendant in a private vehicle with only two other occupants. The Court distinguished Ybarra because the intimate interior of the vehicle

was not like a public tavern, noting that “ ‘a car passenger—

unlike the unwitting tavern patron in Ybarra—will often be

engaged in a common enterprise with the . . .’ ” Id. at 373

(quoting Wyoming v. Houghton, 526 U.S. 295, 304-05

(1999)). This distinction is important. The intimate interior of

a private vehicle is worlds apart from the public parking lot

of a strip mall. 

Unlike the interior of a private vehicle, the public parking

lot setting does not support the inference that everyone in a

segment of the parking lot probably knows each other (and

that they are participating in the others’ illegal activities).

Like Collins, the driver of the Corolla did not associate with

Pass or Flores. Therefore, by speaking with the Corolla driver,

Collins did not provide agents with a probable link in the

associational chain. 

[5] The government is correct that contemporaneous association with known criminal activity contributes to a finding

of probable cause. See, e.g., United States v. Hillison, 733

F.2d 692, 697 (9th Cir. 1984). The problem is that, although

the credited facts show contemporaneity, they do not show association.5

 The only facts offered to show association are proximity and timing and, under Ybarra, that is not enough.

5For the same reason, the government’s reliance on United States v.

Vizcarra-Martinez, 66 F.3d 1006 (9th Cir. 1995), is unavailing. There,

officers had more than ample evidence of Vizcarra-Martinez’s association

with those suspected of criminal activity; he had backed his car into a

garage where other suspects were storing and transferring precursors of

methamphetamine. See id. at 1011. “Vizcarra-Martinez was not merely

observed associating with those suspected of criminal activity; his own

actions, and the other facts known to the police, strongly suggested . . .”

that he was engaged in criminal activity. Id. at 1012. 

Similarly, in United States v. Howard, 758 F.2d 1318 (9th Cir. 1985)

(per curiam), agents had probable cause because they saw Howard in his

UNITED STATES v. COLLINS 14841
IV

[6] The district court recognized that this was an unusual

case, largely because much of the agents’ evidence was discredited. The district judge stated that the granting of motions

to suppress was “almost as rare as hen’s teeth. I think I have

done two in ten years and none in federal court.” We agree,

however, with the district judge that, with the evidence

stripped to its bare bones by the uncontested adverse credibility ruling, there was insufficient evidence of probable cause

to support the arrest. The order of the district court granting

the suppression motion is accordingly 

AFFIRMED.

vehicle talking to a person, who then walked up and delivered a message

to another person attempting to cash an altered money order in a post

office. Howard stayed outside with his car engine running, and shifted

gears to leave when a postal inspector approached. Id. at 1319. Collins

provided no similar link to the persons known to be engaged in criminal

activity, and engaged in no other suspicious moves. 

14842 UNITED STATES v. COLLINS