461 F.3d 1097 (9th Cir. 2006), 05-10810, United States v. Choudhry

Docket Nº:05-10810.
Citation:461 F.3d 1097
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Azim CHOUDHRY, Defendant-Appellant.
Case Date:August 25, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1097

461 F.3d 1097 (9th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Azim CHOUDHRY, Defendant-Appellant.

No. 05-10810.

United States Court of Appeals, Ninth Circuit.

Aug. 25, 2006

Argued and Submitted July 28, 2006.

Page 1098

Mark Rosenbush, San Francisco, CA, for the defendant-appellant.

Derek D. Owens, Special Assistant United States Attorney, and Barbara J. Valliere, Assistant United States Attorney, United States Attorney's Office, San Francisco, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CR-05-00179-PJH.

Before GILBERT S. MERRITT, [*] ANDREW J. KLEINFELD, and RICHARD A. PAEZ, Circuit Judges.

PAEZ, Circuit Judge.

Azim Choudhry ("Choudhry") appeals the district court's denial of his pre-trial motion to suppress evidence. Upon observing a vehicle parked illegally, two San Francisco police officers performed an investigatory traffic stop of the vehicle, in which Choudhry was a passenger. During a subsequent search of the vehicle, the officers discovered a gun under the front passenger seat. Choudhry was indicted for possession of a firearm by a felon, a violation of 18 U.S.C. § 922(g). Alleging that the search and seizure violated the Fourth Amendment, Choudhry filed a motion to suppress the gun.

In challenging the lawfulness of the stop, Choudhry argued that a civil parking offense that is enforced through an administrative process could not, standing alone, justify an investigatory stop. Choudhry also argued that the other circumstances surrounding the stop were insufficient to support a finding of reasonable suspicion and that the stop therefore violated the Fourth Amendment. Other than noting the parking violation as one fact in its analysis of the events leading up to the stop, the district court did not address the merits of Choudhry's argument regarding the parking violation. Although we affirm the denial of the motion to suppress, we do so on a narrower ground than the one advanced by the district court. Because parking infractions constitute traffic violations under California's Vehicle Code and local laws enacted pursuant to the Vehicle Code, and because the officers had the authority to enforce the particular violation at issue, we hold that a civil parking violation under California's Vehicle Code falls within the scope of the Supreme Court's decision in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Accordingly, we conclude that the parking violation provided the officers with reasonable suspicion to conduct an investigatory stop of the vehicle. In light of our disposition, we need not address the other factors that the district court relied upon to deny the motion.

I. BACKGROUND

Just after midnight on February 7, 2005, San Francisco Police Officers Silver and Chan were patrolling Bernal Heights Boulevard. The officers observed a vehicle

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parked illegally near the entrance of Bernal Heights Park, an area designated as a no-stopping/tow-away zone between the hours of 10 PM and 6 AM every day. 1 Because the officers were unable to determine whether the car was occupied, Officer Silver used the police car's spotlight to illuminate the vehicle from behind. In response to the sudden spotlight, the vehicle's occupants, Sonja Alvarado ("Alvarado") and Choudhry, made "hurried movements." According to Officer Silver, these movements led the officers to believe that either a sexual encounter or "some other possibly illegal act" was taking place. In a declaration filed in opposition to the motion, Officer Silver explained that the officers decided to investigate further and turned on their emergency lights "in order to conduct an investigatory stop." Alvarado, the driver of the vehicle, turned on the vehicle's engine and began to pull away. After both police officers exited their patrol car and commanded her to stop, she did.

While Officer Chan questioned Alvarado, Officer Silver spoke with Choudhry through the passenger side window. Having determined that Alvarado's license had been suspended and that there were two active warrants outstanding for her arrest, Officer Chan placed Alvarado under arrest. Because Officer Silver recognized the "faint odor of burnt marijuana," he suspected that Choudhry possessed marijuana and ordered Choudhry out of the car. As Officer Silver performed a pat-down search, Choudhry admitted that he had marijuana in the pocket of his pants. Officer Silver found marijuana in Choudhry's front pants pocket and placed Choudhry in the police car. Choudhry then informed Officer Silver that he had found a gun, which he had placed inside Alvarado's car. Officer Silver discovered the gun under the passenger seat where Choudhry had been sitting.

The Grand Jury subsequently indicted Choudhry for a violation of 18 U.S.C.§ 922(g), possession of a firearm by a felon. Claiming that the detention and search violated the Fourth Amendment, Choudhry filed a motion to suppress the evidence that the officers seized as a result of the stop. As he does in this appeal, Choudhry advanced two central arguments in support of his motion: first, Choudhry argued that because California has decriminalized parking offenses, the police could not perform an investigatory stop on the basis of the parking violation alone; and second, Choudhry asserted that the other circumstances surrounding the stop were insufficient to constitute reasonable suspicion.

The district court denied Choudhry's motion. In its oral decision, the court declined to determine whether the parking violation was enough, standing alone, to justify the stop. Instead, the court concluded that the totality of the circumstances surrounding the stop were sufficient for the officers to have formed an articulable, reasonable suspicion that Alvarado and Choudhry were engaged in criminal activity. The district court relied on the following circumstances: (1) the parking violation, (2) Alvarado's brief attempted "flight," (3) the couple's hurried movements

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after the officers turned on the spotlight, and (4) Officer Silver's belief that Bernal Heights was a high-crime area.

After the district court denied his suppression motion, Choudhry entered a conditional plea of guilty to the indictment, preserving his right to appeal the denial of his motion. The district court sentenced Choudhry to 57 months and he timely appealed. On appeal, Choudhry re-asserts that the parking violation was insufficient alone to justify an investigatory stop and the totality of the circumstances did not constitute reasonable suspicion.

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