893 F2d 1339 United States v. Contreras

893 F.2d 1339

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Manuel Arcchiga CONTRERAS, Defendant-Appellant.

No. 89-30155.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 8, 1990.*
Decided Jan. 16, 1990.

Before EUGENE A. WRIGHT, TANG and CANBY, Circuit Judges.

1

MEMORANDUM**

2

We must determine whether there was reasonable suspicion to stop defendant Manuel Contreras' truck and whether his arrest was proper. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm the district court's denial of a motion to suppress physical evidence.

DISCUSSION

3

I. Reasonable Suspicion to Stop Contreras' Truck

4

Contreras argues first that the police did not have reasonable suspicion to justify the stop of his truck under Terry v. Ohio, 392 U.S. 1 (1968). We disagree.

5

The police had reasonable suspicion to stop Contreras based on the following factors:

6

(1) Rios was waiting to receive seven ounces of tar heroin from a supplier.

7

(2) The police had caught Rios' usual supplier and therefore the police reasonably suspected that he would contact alternative drug suppliers.

8

(3) Prior to Contreras' arrival, a vehicle entered Rios' driveway. When the police searched this vehicle, they discovered drugs. This discovery strengthened the police's suspicion that Rios had contacted alternative suppliers.

9

(4) Prior to Conteras' arrival, the police saw a second vehicle enter the driveway. This vehicle sped out of the driveway after its occupants saw the police. The occupants of this vehicle threw a bag into the bushes. This conduct is consistent with the police's suspicion that alternative drug suppliers had been contacted.

10

(5) Contreras' vehicle, like the second, attempted to speed away from the driveway once the police came into view.1

11

(6) Contreras gestured with his hand as if to hide or access something.

12

(7) Contreras tossed an item out of the rear window of his truck.

II. Probable Cause to Arrest

13

Contreras argues that an arrest occurred when the officers approached his truck with their guns drawn. Because at that time they had not searched the vehicle or learned of his illegal immigration status, he argues that they had no probable cause to arrest him. This argument lacks merit.

14

"Whether an arrest has occurred depends on all the surrounding circumstances, including the extent to which liberty of movement is curtailed and the type of force or authority employed." United States v. Robertson, 833 F.2d 777, 781 (9th Cir.1987). We have recognized that police officers, in conducting investigatory stops, "may take reasonable measures to neutralize the risk of physical harm and to determine whether the person in question is armed." United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir.1987) (citing Terry, 392 U.S. at 24). "The use of force during a stop does not convert the stop into an arrest if it occurs under circumstances justifying fears for personal safety." Id.; see also Robertson, 833 F.2d at 781 (finding an arrest based on officers' complete restriction of a suspect's liberty of movement where they "had not the slightest indication that she was armed").

15

In this case, there is no question that the officers' conduct in drawing their guns restricted Contreras' freedom of movement. However, as the district court found, they had "reasonable safety concerns arising from Contreras' flight, his furtive movements, and their experience that people involved with drugs frequently carry firearms." Their use of force was justified. There was no arrest at the time the officers left the patrol car with guns drawn.

III. Search of Contreras' Truck

16

Contreras argues that the revolver and cocaine found in his truck were products of an illegal arrest, and that both should have been suppressed. At the time of his arrest, however, there was probable cause to believe that he had violated immigration laws. The arrest was legal. Contreras presents no other argument in support of his contention that the physical evidence should have been suppressed.2 The district court properly denied his suppression motion.

17

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

Contreras argues that he took flight upon seeing two unidentified, armed men run toward an unmarked car. The district court found, however, that "the officers were wearing police jackets and badges, that their guns were not drawn when Contreras first saw them, and that a young girl had recognized them as policemen shortly before." These findings were not clearly erroneous. See United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.) (in determining whether there was probable cause, underlying facts as found by the district court are accepted unless clearly erroneous), cert. denied, 476 U.S. 1185 (1986). His flight is relevant in determining if the officers had reasonable suspicion

2

For example, Contreras does not argue that the warrantless search of the bag in the bed of the pickup truck was an invalid search of a closed container outside the passenger compartment of a vehicle. See New York v. Belton, 453 U.S. 454, 460 (1981); United States v. Parr, 843 F.2d 1228, 1229 (9th Cir.1988). Because he has not raised this issue, we need not decide it here