United States v. Roy David Thompson, Aka, Larry Gene Madden, United States of Am. v. Michael George Reeve & Albert David Law, Jr., United States of Am. v. Derek Trevenning Harris, 558 F.2d 522 (9th Cir. 1977). · Go Syfert
United States v. Roy David Thompson, Aka, Larry Gene Madden, United States of Am. v. Michael George Reeve & Albert David Law, Jr., United States of Am. v. Derek Trevenning Harris, 558 F.2d 522 (9th Cir. 1977). Cases Citing This Book View Copy Cite
68 citation events (12 in the last 25 years) across 21 distinct courts.
Strongest positive: Leibel v. Buckeye, City of (azd, 2021-08-25)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 38 distinct citers. How cited ↗
discussed Cited as authority (rule) Leibel v. Buckeye, City of
D. Ariz. · 2021 · confidence medium
United States v. 28 Thompson, 558 F.2d 522, 524 (9th Cir. 1977) (“A police officer attempting to make an - 33 - Case 2:18-cv-01743-DWL Document 184 Filed 08/25/21 Page 34 of 58 1 investigatory detention may properly display some force when it becomes apparent that an 2 individual will not otherwise comply with his request to stop, and the use of such force 3 does not transform a proper stop into an arrest.”). 4 Finally, the encounter did not transform into an arrest after Ms. Craglow arrived, 5 explained that C.L. was autistic, and offered a benign explanation for C.L.’s possession of 6 …
discussed Cited as authority (rule) Cortez v. McCauley
10th Cir. · 2006 · signal: cf. · confidence medium
Cf. United States v. Patterson, 648 F.2d 625, 633 (9th Cir.1981) (“Proscription of excessive force is merely the corollary to our holding that an ‘officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop.’ ”) (quoting United States v. Thompson, 558 F.2d 522, 524 (9th Cir.1977)).
discussed Cited as authority (rule) Cortez v. Mccauley
10th Cir. · 2006 · signal: cf. · confidence medium
Cf. United States v. Patterson, 648 F.2d 625, 633 (9th Cir.1981) ("Proscription of excessive force is merely the corollary to our holding that an `officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop.'") (quoting United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977)). 64 Nor is there any indication in the record that Rick Cortez posed an immediate threat to the safety of Defendants or others.
discussed Cited as authority (rule) Minnick v. United States
D.C. · 1992 · confidence medium
See United States v. Lopez, 777 F.2d 543, 551 (10th Cir.1985); United States v. Thompson, 558 F.2d 522, 524 (9th Cir.1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978); State v. Barclay, 398 A.2d 794, 797 (Me.1979) ("the odor of marijuana smoke emanating from the interior of the vehicle ... was sufficient to establish probable cause to search”); State v. Gilson, 116 N.H. 230, 233-34 , 356 A.2d 689, 691-92 (1976) (“An officer with sufficient experience to recognize the odor of burning marijuana has probable cause to suspect its presence when he detects the odor with t…
discussed Cited as authority (rule) Matter of TTC
D.C. · 1990 · confidence medium
D.C. at 299-300, 648 F.2d at 39 -40 (citing United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977), cert. denied sub nom., Reeve v. United States, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978)) (drawing of weapon justified after officers had identified themselves and ordered the vans to stop and one van started to move, then lurched forward); United States v. Maslanka, 501 F.2d 208, 213 (5th Cir.1974), cert. denied sub nom., Knight v. United States, 421 U.S. 912 , 95 S.Ct. 1567 , 43 L.Ed.2d 777 (1975) (reasonable for officer to approach car at gunpoint after five-mile, high-speed …
discussed Cited as authority (rule) In re T.T.C.
D.C. · 1990 · confidence medium
White, supra, 208 U.S.App.D.C. at 299-300 , 648 F.2d at 39 -40 (citing United States v. Thompson, 558 F.2d 522, 524 (9th Cir.1977), ce rt. denied sub nom., Reeve v. United States, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978)) (drawing of weapon justified after officers had identified themselves and ordered the vans to stop and one van started to move, then lurched forward); United States v. Maslanka, 501 F.2d 208, 213 (5th Cir.1974), cert. denied sub nom., Knight v. United States, 421 U.S. 912 , 95 S.Ct. 1567 , 43 L.Ed.2d 777 (1975) (reasonable for officer to approach car at gunpoint a…
discussed Cited as authority (rule) United States v. Maria Yanibe Montilla
9th Cir. · 1989 · confidence medium
United States v. Thompson, 558 F.2d 522, 525 (9th Cir.1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978); Fed.R.Crim.P. 12(e) (pretrial motion may be deferred until trial for good cause, unless appeal rights are adversely affected).
discussed Cited as authority (rule) United States v. Winston Bryant McConney (2×)
9th Cir. · 1984 · confidence medium
While noting that these decisions appeared to conflict with one another, compare United States v. Thompson, 558 F.2d 522, 524 (9th Cir.1977) (probable cause reviewable under the clearly erroneous test), with United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1108 (9th Cir.1976) (probable cause reviewable de novo), the Flickinger panel found it unnecessary to resolve this conflict because it concluded that the question of exigent circumstances is “more closely related to the mixed fact-law question involved in United States v. Hart ... than the ultimate constitutional standard of…
cited Cited as authority (rule) United States v. Rickus
E.D. Pa. · 1983 · confidence medium
The Government cites United States v. Thompson, 558 F.2d 522, 524 (9th Cir.1977), in support of this proposition.
discussed Cited as authority (rule) United States v. Whitmore
D. Me. · 1982 · confidence medium
Thus, “[a] police officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop....” United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977).
discussed Cited as authority (rule) United States v. Saul Sanford
9th Cir. · 1982 · confidence medium
See United States v. Brandon, 633 F.2d 773, 776 (9th Cir. 1980); United States v. Thompson, 558 F.2d 522, 524-25 (9th Cir. 1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978); United States v. Dubrofsky, 581 F.2d 208, 212 (9th Cir. 1978); United States v. Page, 302 F.2d 81, 83 (9th Cir. 1962) (en banc).
discussed Cited as authority (rule) United States v. Donald Gene Booth
9th Cir. · 1982 · confidence medium
See, e. g., United States v. Huberts, 637 F.2d 630, 635 (9th Cir. 1980), cert. denied, 451 U.S. 975 , 101 S.Ct. 2058 , 68 L.Ed.2d 356 (1981); United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852 , 95 S.Ct. 94 , 42 L.Ed.2d 84 (1974) (founded suspicion); United States v. Franco, 638 F.2d 1206, 1208 (9th Cir. 1981); United States v. Thompson, 558 F.2d 522, 524-25 (9th Cir. 1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978) (probable cause); United States v. Flickinger, 573 F.2d 1349 , 1357 (9th Cir.), cert. denied, 439 U.S. 836 , 99 S.Ct. 119 , 58…
discussed Cited as authority (rule) Ford v. Burke
N.D.N.Y. · 1982 · confidence medium
Beyond the initial encounter, the defendants were justified in displaying some force *381 to effect an investigatory stop, for as recognized in Gomez, “[a] police officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop. . . .," quoting United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978).
discussed Cited as authority (rule) United States v. Michael Edward O'COnnOr and Charles Cary Davis
9th Cir. · 1981 · confidence medium
For cases concerning probable cause to arrest, see: United States v. Franco, 638 F.2d 1206, 1208 (9th Cir. 1980); United States v. Jones, 612 F.2d 453, 456-57 (9th Cir. 1979), cert. denied, 445 U.S. 966 , 100 S.Ct. 1656 , 64 L.Ed.2d 242 (1980); United States v. Beck, 598 F.2d 497, 501 (9th Cir. 1979); United States v. Martin, 587 F.2d 31, 33 (9th Cir. 1978), cert. denied, 440 U.S. 910 , 99 S.Ct. 1222 , 59 L.Ed.2d 459 (1979) (“viewing the facts in the light most favorable to the government ..., we find the determination of probable cause for arrest was not clearly erroneous.”); United State…
discussed Cited as authority (rule) State v. Drogsvold
Wis. Ct. App. · 1981 · confidence medium
If this ambiguous assertion is precedent for the proposition that a finding of probable cause to arrest is a finding of fact, it appears to be contrary to more recent decisions treating the issue as one of law, at least where the facts are undisputed. 5 Where the issue is the reasonableness of a search or a temporary detention without arrest, the supreme court of this state “will independently examine the circumstances of the case to determine whether the constitutional requirement of reasonableness is satisfied.” State v. Goebel, 103 Wis. 2d 203, 209 , 307 N.W.2d 915, 918 (1981), quoting …
examined Cited as authority (rule) United States v. Jose Ceballos (4×)
2d Cir. · 1981 · confidence medium
See United States v. Vasquez, supra, 638 F.2d at 523 (officers’ placing of restraining hands on Sanchez not unduly intrusive because precipitated by “fidget[ing]”); United States v. Moore, 638 F.2d 1171, 1174 (9th Cir. 1980) (policemen’s show of force, which was precipitated by the action of the taxi driver and was necessary to prevent appellants from driving away, did not transform stop into arrest); United States v. Vargas, 633 F.2d 891, 896 (1st Cir. 1980) (boxing in of appellant’s vehicle and immediate order to raise hands did not constitute arrest in view of evasive driving and …
discussed Cited as authority (rule) United States v. Edward D. Patterson, Richard L. Flintoff, Jimmie R. Oglesby, and Gregory C. Martinson (2×)
9th Cir. · 1981 · confidence medium
In United States v. Ramos-Zaragosa, we again found that an arrest had occurred, but emphasized that the agents had pointed their guns at the suspects "under circumstances not suggesting fears for their personal safety." 516 F.2d at 144 . 42 Proscription of excessive force is merely the corollary to our holding that an "officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop." United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977), cert. denied, 435 U.S. 914 , 98 S.…
examined Cited as authority (rule) United States v. Orson G. White, United States of America v. Lawrence Anderson (4×)
D.C. Cir. · 1981 · confidence medium
Levels of force and intrusion in an "investigatory stop" may be legitimately escalated to meet supervening events, such as attempted flight, e. g., United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977), cert. denied sub nom.
cited Cited as authority (rule) United States v. Boffa
D. Del. · 1981 · confidence medium
Although the decision to postpone a hearing on a pretrial motion is within the discretion of the court, see United States v. Thompson, 558 F.2d 522, 525 (C.A.9,1977), cert. denied sub nom.
discussed Cited as authority (rule) United States v. Jorge Gomez and Henry Serna
2d Cir. · 1980 · confidence medium
In most cases, therefore, “[a] police officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop . . . . ” United States v. Thompson, 558 F.2d 522, 524 (9 Cir. 1977), cert. denied, 435 U.S. 914 (1978).
discussed Cited as authority (rule) United States v. John Eldon Beck, United States of America v. John W. Dickerson (2×)
9th Cir. · 1979 · confidence medium
But utilization of force in making a stop will not convert the stop into an arrest if it is precipitated by the conduct of the individual being detained, United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977), Cert. denied, 434 U.S. 973 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1977); United States v. Richards, 500 F.2d at 1028-29 , or if it occurs under circumstances justifying fears for personal safety.
discussed Cited as authority (rule) United States v. Alberto Garcia-Rodriguez (T/n Ruben Gutierrez-Garcia), Alfonso Garcia-Sanchez, Francisco Martinez-Martinez
9th Cir. · 1977 · confidence medium
At that point, the officers had a founded suspicion to believe that any one of the covered vans “leaving the warehouse would contain contraband.” Thus, they were entitled to make “an investigatory stop.” United States v. Thompson, 558 F.2d 522, 524 (9th Cir. decided June 27, 1977); United States v. Larios-Montes, 500 F.2d 941, 943-44 (9th Cir. 1974), cert. denied, 422 U.S. 1057 , 95 S.Ct. 2681 , 45 L.Ed.2d 709 (1975).
cited Cited "see" United States v. Maurice Dorvilus
11th Cir. · 2009 · signal: see · confidence high
See United States v. Thompson, 558 F.2d 522, 525 (9th Cir.1977). 3 .
discussed Cited "see" Gentile v. County Of Suffolk
2d Cir. · 1991 · signal: see · confidence high
See United States v. Thompson, 558 F.2d 522, 525 (9th Cir.1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978); see also United States v. Montilla, 870 F.2d 549 (1989), modified on other grounds, 907 F.2d 115 (9th Cir.1990); United States v. Tortorello, 480 F.2d 764 , 785 n. 18 (2d Cir.), cert. denied, 414 U.S. 866 , 94 S.Ct. 63 , 38 L.Ed.2d 86 (1973); United States v. Boffa, 89 F.R.D. at 533-34 . 29 In this case, defendants had pretrial notice of plaintiffs' intention to introduce the SIC Report, failed to request an evidentiary hearing until the third day of trial and di…
discussed Cited "see" Gentile v. County of Suffolk
2d Cir. · 1991 · signal: see · confidence high
See United States v. Thompson, 558 F.2d 522, 525 (9th Cir.1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978); see also United States v. Montilla, 870 F.2d 549 (1989), modified on other grounds, 907 F.2d 115 (9th Cir.1990); United States v. Tortorello, 480 F.2d 764 , 785 n. 18 (2d Cir.), cert. denied, 414 U.S. 866 , 94 S.Ct. 63 , 38 L.Ed.2d 86 (1973); United States v. Boffa, 89 F.R.D. at 533-34 .
discussed Cited "see" United States v. Leslie Craig Robertson, and Connie M. Steeprow (2×)
9th Cir. · 1987 · signal: see · confidence high
See United States v. Thompson, 558 F.2d 522, 524 (9th Cir.1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978).
cited Cited "see" United States v. Frank Joseph Perate
4th Cir. · 1983 · signal: accord · confidence high
Accord United States v. Thompson, 558 F.2d 522, 524 (9th Cir.1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978).
discussed Cited "see" United States v. Robert Glenn Moore, United States of America v. Michael English (2×)
9th Cir. · 1980 · signal: see · confidence high
See United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977) (policeman drew gun when van began to drive away), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978); United States v. Richards, 500 F.2d 1025, 1028-29 (9th Cir. 1974) (agent drew gun on airplane preparing to take off), cert. denied, 420 U.S. 924 , 95 S.Ct. 1118 , 43 L.Ed.2d 393 (1975).
discussed Cited "see" United States v. Bruce Anthony Collom, United States of America v. Stephen Collom
9th Cir. · 1980 · signal: see · confidence high
See United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978); United States v. Avalos-Ochoa, 557 F.2d 1299, 1303 (9th Cir.), cert. denied, 434 U.S. 974 , 98 S.Ct. 532 , 54 L.Ed.2d 466 (1977).
cited Cited "see" United States v. Russell Eugene Scharf, United States of America v. Lionel Gilbert Coolidge
9th Cir. · 1979 · signal: see · confidence high
See United States v. Thompson, 558 F.2d 522, 525 (9th Cir. 1977), cert. denied sub nom.
discussed Cited "see" United States v. Daniel Newton Flickinger, United States of America v. John H. Munier, Jr., United States of America v. Robert William McLaughlin United States of America v. Stanley David Hayduk
9th Cir. · 1978 · signal: see · confidence high
See United States v. Thompson, 558 F.2d 522, 524-25 (9th Cir. 1977); United States v. Patterson, 492 F.2d 995, 996 (9th Cir.), cert. denied, 419 U.S. 846 , 95 S.Ct. 82 , 42 L.Ed.2d 75 (1974); Costello v. United States, 324 F.2d 260, 261 (9th Cir. 1963), cert. denied, 376 U.S. 930 , 84 S.Ct. 699 , 11 L.Ed.2d 650 (1964).
discussed Cited "see" United States v. Flickinger
9th Cir. · 1978 · signal: see · confidence high
See United States v. Thompson, 558 F.2d 522 , 524—25 (9th Cir. 1977); United States v. Patterson, 492 F.2d 995, 996 (9th Cir.), cert. denied, 419 U.S. 846 , 95 S.Ct. 82 , 42 L.Ed.2d 75 (1974); Costello v. United States, 324 F.2d 260, 261 (9th Cir. 1963), cert. denied, 376 U.S. 930 , 84 S.Ct. 699 , 11 L.Ed.2d 650 (1964).
discussed Cited "see, e.g." United States v. Seni
4th Cir. · 1981 · signal: see, e.g. · confidence low
See, e. g., United States v. Thompson, 558 F.2d 522 (9th Cir. 1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978); United States v. Worthington, 544 F.2d 1275 , 1280 n.3 (5th Cir. 1977), cert. denied, 434 U.S. 817 , 98 S.Ct. 55 , 54 L.Ed.2d 72 (1977) (based upon experience with drug traffickers, agents reasonably feared death or serious injury when they stopped plane on dark, deserted airstrip).
discussed Cited "see, e.g." United States v. Victor Jacob Seni, United States of America v. Bobby Lee Minton, United States of America v. Samuel Ellis Ferguson, United States of America v. Hector Morales, United States of America v. Carlos Fiusa, United States of America v. Pablo Raul Alonso
4th Cir. · 1981 · signal: see, e.g. · confidence low
See, e. g., United States v. Thompson, 558 F.2d 522 (9th Cir. 1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978); United States v. Worthington, 544 F.2d 1275 , 1280 n.3 (5th Cir. 1977), cert. denied, 434 U.S. 817 , 98 S.Ct. 55 , 54 L.Ed.2d 72 (1977) (based upon experience with drug traffickers, agents reasonably feared death or serious injury when they stopped plane on dark, deserted airstrip).
discussed Cited "see, e.g." Watkins v. State (2×)
Md. · 1980 · signal: see, e.g. · confidence low
See, e.g., United States v. Thompson, 558 F.2d 522 (9th Cir. 1977), cert. denied sub nom., Reeve v. United States, 435 U.S. 914 (1978); United States v. Coades, 549 F.2d 1303 (9th Cir. 1977); United States v. Purry, 545 F.2d 217 (D.C.
discussed Cited "see, e.g." United States v. Patino-Zambrano
E.D.N.Y · 1979 · signal: see also · confidence medium
See also United States v. Thompson, 558 F.2d 522, 524 (9 Cir. 1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978) (use of force to compel investigatory detention after all-night surveillance does not transform a proper stop into an arrest).
cited Cited "see, e.g." United States v. Erlinda Grajeda
9th Cir. · 1978 · signal: see, e.g. · confidence medium
See, e.g., United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977).
cited Cited "see, e.g." United States v. Erlinda Grajeda
9th Cir. · 1978 · signal: see, e.g. · confidence medium
See, e. g., United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977).
Retrieving the full opinion text from the archive…
United States
v.
Roy David Thompson, Aka, Larry Gene Madden, United States of America v. Michael George Reeve and Albert David Law, Jr., United States of America v. Derek Trevenning Harris
76-1821.
Court of Appeals for the Ninth Circuit.
Aug 25, 1977.
558 F.2d 522
Published

558 F.2d 522

UNITED STATES of America, Plaintiff-Appellee,
v.
Roy David THOMPSON, aka, Larry Gene Madden, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael George REEVE and Albert David Law, Jr.,
Defendants-Appellants.
UNITED STATES of America, Plaintiff-Appellee,
v.
Derek Trevenning HARRIS, Defendant-Appellant.

Nos. 76-1821, 76-2041 and 76-2605.

United States Court of Appeals,
Ninth Circuit.

June 27, 1977.
Rehearing and Rehearing En Banc Denied Aug. 25, 1977.

Oscar B. Goodman, Goodman & Snyder, Las Vegas, Nev., for appellant in No. 76-1821.

Barry T. Simons, Laguna Beach, Cal., for appellant in No. 76-2605.

Roger S. Hanson, Santa Ana, Cal., Carol Kuntz, Federal Public Defender, Los Angeles, Cal., for appellant in No. 76-2041.

Richard A. Wright, Asst. U. S. Atty., Las Vegas, Nev., for appellee.

Appeal from the United States District Court for the District of Nevada.

Before CHAMBERS and CHOY, Circuit Judges, and PECKHAM,[*] District Judge.

CHOY, Circuit Judge:

[*~522]1

Appellants contest their jury conviction under 21 U.S.C. §§ 841(a)(1) & 846 for conspiracy to distribute marijuana. Reeve, Harris, and Law argue that the search of their vans which uncovered 720 pounds of marijuana was improper. Thompson claims that his airplane was searched without his consent and without probable cause. Reeve, Harris, and Thompson also contend that the trial court committed reversible error in postponing the hearing on their motions to suppress until after the jury had begun deliberations. We affirm.

2

This case arises out of an all-night surveillance effort by federal and state authorities, covering the movement of two vans and an airplane in the contiguous desert areas of Arizona and Nevada. The following morning, the authorities stopped the two vans for the purpose of questioning the occupants. The district court ruled that there was "founded suspicion" to justify this investigatory stop, and appellants do not seriously challenge that determination here. They do argue, however, that the stop ripened into a full-fledged arrest when an officer drew his weapon; that, though the officers may have had sufficient "founded suspicion" to justify the stop, they had no probable cause to arrest; and that, since the arrest was invalid, the fruit of the subsequent search of the vans was inadmissible under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). This argument is without merit.

3

A police officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop, and the use of such force does not transform a proper stop into an arrest. United States v. Richards, 500 F.2d 1025, 1028-29 (9th Cir. 1974), cert. denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393 (1975). See United States v. Coades, 549 F.2d 1303, 1305 (9th Cir. 1977); United States v. Russell, 546 F.2d 839, 841 (9th Cir. 1976) (Wright, J., concurring). In the instant case, a weapon was not drawn until, after the officers had identified themselves and ordered the vans to stop, one van began to move and then suddenly lurched forward. United States v. Ramos-Zaragosa, 516 F.2d 141, 144 (9th Cir. 1975), United States v. Larkin, 510 F.2d 13, 14 n.1 (9th Cir. 1974), and United States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974), relied upon by appellants, did not involve investigatory stops that were properly initiated through unarmed requests to stop and answer questions and, therefore, are clearly distinguishable. See generally United States v. Nevitt, 409 F.Supp. 1075, 1078-79 n.10 (W.D.Mich.1976); United States v. Diggs, 173 U.S.App.D.C. 95, 522 F.2d 1310, 1326-27 n.5 (1975) (Justice, D. J., dissenting).

[*~523]4

After a brief period during which appellants were questioned, the officers detected a strong odor of marijuana coming from one of the vans. We have repeatedly held that, "(i)f after a valid investigatory stop probable cause arises, the search may then be made," United States v. Bugarin-Casas,484 F.2d 853, 854 (9th Cir. 1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974). See, e.g., United States v. Russell, 546 F.2d 839, 840 (9th Cir. 1976); United States v. Bates, 533 F.2d 466, 468-69 (9th Cir. 1976); United States v. Portillo-Reyes, 529 F.2d 844, 850 (9th Cir. 1975), cert. denied, 429 U.S. 899, 97 S.Ct. 267, 50 L.Ed.2d 185 (1976); United States v. Rocha-Lopez, 527 F.2d 476, 478-79 (9th Cir. 1975), cert. denied, 425 U.S. 977, 96 S.Ct. 2181, 48 L.Ed.2d 802 (1976); United States v. Moreno-Buelna, 524 F.2d 1129, 1132 (9th Cir.) (Chambers J., concurring), cert. denied, 423 U.S. 1035, 96 S.Ct. 570, 46 L.Ed.2d 410 (1975); United States v. Rodriquez-Alvardo, 510 F.2d 1063, 1064 (9th Cir. 1975). And the detection of marijuana odor emanating from a vehicle has been held sufficient in such situations to give rise to probable cause to search. See Russell,supra at 840; United States v. Laird, 511 F.2d 1039, 1040 (9th Cir. 1975); United States v. Ojeda-Rodriquez, 502 F.2d 560, 561 (9th Cir. 1974), cert. denied, 420 U.S. 910, 95 S.Ct. 830, 42 L.Ed.2d 839 (1975); Fernandez v. United States, 321 F.2d 283, 286-87 (9th Cir. 1963).[1] Appellants were placed under arrest only after the marijuana was discovered.

[*~524]5

Next, Thompson, the pilot of the plane, challenges the trial court's findings both that he had consented to the search of the plane and that, in any event, there was probable cause to search it after the officers on the scene were informed that the vans had been seized in another location and were found to contain the marijuana. Having reviewed the record, we cannot say that these findings were clearly erroneous. See United States v. Hart, 546 F.2d 798, 801-02 (9th Cir. 1976) (en banc), cert. denied sub nom. Robles v. United States, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 571 (1977); United States v. Fong, 529 F.2d 55, 58 (9th Cir. 1975); United States v. Agosto,502 F.2d 612, 614 (9th Cir. 1974); United States v. Page, 302 F.2d 81, 85 (9th Cir. 1962) (en banc); United States v. Patterson, 492 F.2d 995, 996 (9th Cir.), cert. denied, 419 U.S. 846, 95 S.Ct. 82, 42 L.Ed.2d 75 (1974); Costello v. United States, 324 F.2d 260, 261 (9th Cir. 1963), cert. denied, 376 U.S. 930, 84 S.Ct. 699, 11 L.Ed.2d 650 (1964).

6

Thompson also claims that his consent was not voluntarily given because he was in a "custodial type environment." It is settled that a person in custody may voluntarily consent to a search. United States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Lemon, 550 F.2d 467, 471 (9th Cir. 1977); United States v. Tolias, 548 F.2d 277, 278 (9th Cir. 1977). We find no evidence of duress or coercion in the "totality of all the circumstances" in the record before us. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

7

Finally, the argument presented by Reeve, Harris, and Thompson that the trial court committed reversible error in postponing the separate hearing on their motions to suppress is also without merit. They made no objection below to the trial court's adopting this procedure, and, while it is preferable that such motions be decided before trial, see United States v. Mauro, 507 F.2d 802, 806 (2d Cir. 1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1426, 43 L.Ed.2d 672 (1975); United States v. Whitted, 454 F.2d 642, 644 (8th Cir. 1972); Solomon v. United States, 133 U.S.App.D.C. 103, 408 F.2d 1306, 1309 (1969); United States v. Dooling, 406 F.2d 192, 196 (2d Cir.), cert. denied sub nom. Persico v. United States, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969); that procedure is not mandatory. A trial court may, in its discretion, defer a hearing on a motion to suppress made before trial for determination at trial or after the verdict as long as no "party's right to appeal is adversely affected." Fed.R.Crim.P. 12(e). See United States v. Kirk,528 F.2d 1057, 1064 (5th Cir. 1976). But see United States v. Smith, 527 F.2d 692, 693 (10th Cir. 1975). Obviously, appellants' rights to appeal were not "adversely affected" by the trial court's decision to postpone the hearing, and we can discern no other prejudice to them that could possibly render the trial court's decision "plain error" under Rule 52(b), see United States v. Segna, 555 F.2d 226, 231 (9th Cir. 1977); Herzog v. United States, 235 F.2d 664, 666-67 (9th Cir.) (en banc), cert. denied, 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59 (1956).[2]

[*~525]8

AFFIRMED.

*

Honorable Robert F. Peckham, United States District Judge for the Northern District of California, sitting by designation

1

The district court also found that the officers had probable cause to search the vans even before the investigatory stop and the detection of marijuana odor. Given our disposition of the issues, we have no need to review that finding

2

Appellants filed their motions to suppress on December 29, 1975, and trial commenced on February 3, 1976. Thus, the revisions to Rule 12, Fed.R.Crim.P., which took effect on December 1, 1975 were applicable

Former Rule 12(b)(4) dealt with the timing of hearings on pretrial motions to suppress:

A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. . . .

This Rule had been interpreted as allowing the trial court, in its discretion, to postpone the hearing until trial or after the jury had returned its verdict. See United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969); United States v. Collins, 491 F.2d 1050, 1052 (5th Cir.), cert. denied, 419 U.S. 857, 95 S.Ct. 104, 42 L.Ed.2d 90 (1974); Dooling, supra at 197. This matter is now covered in revised Rule 12(e):

A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such determination shall be deferred if a party's right to appeal is adversely affected. . . .

The Advisory Committee Notes to Rule 12(e) and its legislative history, see H.R.Rep.No.94-247, 94th Cong., 1st Sess. 7-8, reprinted in U.S.Code Cong. & Ad.News 679-80 (1975), confirm that, while retaining the rule that the decision to postpone the hearing on a pretrial suppression motion lies in the sound discretion of the district court, the amendments to Rule 12 were intended to encourage pretrial determination of such motions. But those sources also explain that the principal reason for preferring that procedure is to preserve the Government's right, under 18 U.S.C. § 3731, to appeal an adverse ruling. See 8 J. Moore, Moore's Federal Practice P 12.04, at 12-24 (2d ed. 1976). See also Mauro, supra at 806.