909 F.2d 389 (9th Cir. 1990), 89-50589, United States v. Garcia

Docket Nº:89-50589.
Citation:909 F.2d 389
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert Anthony GARCIA, Defendant-Appellant.
Case Date:July 25, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 389

909 F.2d 389 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Anthony GARCIA, Defendant-Appellant.

No. 89-50589.

United States Court of Appeals, Ninth Circuit

July 25, 1990

Argued and Submitted June 5, 1990.

Page 390

C. Anthony Valladolid, San Diego, Cal., for defendant-appellant.

Peter C. Lewis, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before HUG, BEEZER and NOONAN, Circuit Judges.

NOONAN, Circuit Judge:

Robert Anthony Garcia entered a conditional plea of guilty to a charge of possession of counterfeit federal reserve notes, reserving his right to appeal the district court's denial of his pretrial motion to suppress evidence. He also appeals his sentence. We affirm his conviction and reverse and remand for resentencing.

FACTS

On April 28, 1989 a little after 9:00 p.m., two California Highway Patrol Officers observed Garcia riding a motorcycle at a speed of between 80 and 90 miles per hour and weaving in and out of traffic on Interstate Highway 805 in the Chula Vista area. Garcia left the freeway on an exit which narrowed to one lane. The officers pursued, flashing their lights and sounding their siren. Garcia failed to stop and appeared to try, unsuccessfully, to pass the car that was directly in front of him. The officers used their public address system to tell him to stop. He complied. The officers ordered Garcia off his motorcycle and advised him of the reason for the stop. He dismounted and, taking a "fanny pack" from around his waist, he set it on the gas tank of his motorcycle in order to retrieve his license and registration as required by the officers. He left the fanny pack open.

The area of the stop was very dark. Garcia is six feet one inch tall and weighs 200 pounds. He was wearing a heavy jacket capable of hiding a weapon. Officer Hector Paredes patted him down for weapons. No weapons were found, but the officer saw that he wore a telephone pager or beeper at his waist. Despite the coolness of the evening he appeared nervous and was sweating.

Two and a half to three feet from Garcia the fanny pack lay open on the motorcycle. Officer Clark noted inside it a white colored bag with the letters "B of A" written on it. He checked the fanny pack for possible weapons by putting his hand on...

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