U.S. v. Caseres

• Decision Date: 21 July 2008
• Docket Number: No. 06-50546.,06-50546.
• Citation: 533 F.3d 1064
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph CASERES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

533 F.3d 1064

UNITED STATES of America, Plaintiff-Appellee, v. Joseph CASERES, Defendant-Appellant.

No. 06-50546.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2007.

Filed July 21, 2008.

Sean Kennedy, Federal Public Defender; Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

George S. Cardona, United States Attorney; Thomas P. O'Brien, Assistant United States Attorney, Chief, Criminal Division; Shawn J. Nelson, Special Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; John F. Walter, District Judge, Presiding. D.C. No. CR-02-00854-JFW.

Before: MYRON H. BRIGHT,^* HARRY PREGERSON, and KIM McLANE WARDLAW, Circuit Judges.

PREGERSON, Circuit Judge:

Joseph Caseres ("Caseres") appeals the district court's denial of his motion to suppress evidence that was discovered during a warrantless search of his car. After the district court denied the motion to suppress, Caseres entered a conditional guilty plea to a violation of 18 U.S.C. § 922(g)(1), which prohibits felons from possessing ammunition. We reverse the district court's denial of the motion to suppress, and we remand for further proceedings.

JURISDICTION

The district court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

STANDARD OF REVIEW

We review de novo the district court's ruling denial of a motion to suppress as to questions of law and mixed questions of law and fact. United States v. Smith, 389 F.3d 944, 950 (9th Cir.2004) (per curiam), cert. denied, 544 U.S. 956, 125 S.Ct. 1721, 161 L.Ed.2d 538 (2005). Factual findings are reviewed for clear error. Id.

FACTUAL AND PROCEDURAL BACKGROUND

On August 5, 2005, Lieutenant Roger Murphy ("Lt.Murphy") was patrolling the City of Los Angeles in an unmarked police car. He was accompanied by a ride-along passenger, Erica Czpull ("Czpull"). Around 9:45 p.m., Lt. Murphy observed Caseres driving on Second Street. Lt. Murphy noted that Caseres turned from westbound Second Street to northbound Mesa Street without signaling, which Lt. Murphy believed to be a violation of California Vehicle Code § 22108. He also noted that Caseres's front passenger compartment windows appeared to be tinted in violation of California Vehicle Code § 26708(a)(1).

Lt. Murphy followed Caseres's car. He requested a warrant check from dispatch. While Lt. Murphy waited for the results, Caseres turned down a number of side streets and Lt. Murphy lost sight of his car. Then, as Lt. Murphy was driving westbound on O'Farrell Street, he passed Caseres heading eastbound on the same street. Caseres claims that he did not recognize Lt. Murphy's unmarked patrol car as a police vehicle when it drove past him, heading in the opposite direction. At no time did Lt. Murphy activate his emergency flashing lights or sirens. He gave no indication to Caseres that he wanted to effectuate a traffic stop.

Caseres parked his car in front of 443 O'Farrell Street, two houses away from his residence at 455 O'Farrell Street. Caseres immediately exited his car and walked quickly toward his home. Lt. Murphy then made a three-point turn on O'Farrell Street and pulled his unmarked patrol car behind Caseres's unoccupied car.

Lt. Murphy caught up with Caseres on a residential front lawn. He was wearing a police uniform and identified himself as a police officer. He ordered Caseres to stop. Caseres continued to move toward his residence, telling Lt. Murphy, "Fuck you, I'm home." Lt. Murphy called for back-up assistance and "moved quickly to close the distance between [Caseres] and [himself]."

When he reached Caseres again, Lt. Murphy spoke with him, trying to "buy time" until the back-up police officers arrived. According to Lt. Murphy, Caseres threatened him, saying, "I'm gonna kick your fuckin ass." Lt. Murphy then told Caseres that he was placing him under arrest. Caseres shook his fists at Lt. Murphy, who attempted to spray Caseres with mace. Caseres turned and ran. Lt. Murphy pursued him on foot.

Caseres ran west on O'Farrell Street, entered the alley east of Pacific Avenue, and then ran south. When he reached Santa Cruz Street, Caseres ran east and entered the alley west of Mesa Street. He ran south and entered the alley south of Santa Cruz Street. Then, he ran back westward. Caseres finally surrendered from exhaustion in an alley north of Santa Cruz Street. Lt. Murphy arrested him at that location for violations of California Penal Code § 69 (Threatening a Police Officer) and California Penal Code § 148 (Resisting or Delaying a Police Officer). Caseres was never cited for any violation of the California Vehicle Code.

After arresting Caseres, Lt. Murphy returned to Caseres's car, which was parked a block and a half away from the location where Caseres had been apprehended and arrested. The police officers, who had responded to Lt. Murphy's call for assistance, had arrived at the scene. Lt. Murphy ordered the police officers to search the passenger compartment of Caseres's car, despite not having probable cause to believe the search would uncover evidence of a crime. According to the district court, the search was not ordered until "well after" Caseres had been taken into custody.

As a result of the search, the police officers seized a gun and thirteen rounds of ammunition, which were found underneath the driver's seat of Caseres's car. Because Caseres had been previously convicted of a felony, he was charged with violating 18 U.S.C. § 922(g)(1), which prohibits felons from possessing ammunition.¹

Caseres filed a motion to suppress the gun and the ammunition as the fruit of an unconstitutional search. After an evidentiary hearing, the district court denied Caseres's motion to suppress, holding that the search was constitutional as a search incident to a valid arrest and, alternatively, as an inventory search.

On June 19, 2006, Caseres entered a conditional guilty plea, pursuant to a written agreement, in which he expressly reserved the right to appeal the adverse ruling on his motion to suppress. Caseres was sentenced to thirty months imprisonment, three years supervised release, and a special assessment of $100. Caseres is currently in custody serving the sentence imposed in this case. His projected release date is October 21, 2008.

DISCUSSION

We must decide whether Lt. Murphy had a reasonable basis to detain Caseres, and whether the warrantless search of the passenger compartment of Caseres's car was constitutional as a search incident to a valid arrest, an inventory search, or a parole search.

I. CASERES'S DETENTION WAS LAWFUL

Caseres argues that the gun and ammunition must be suppressed because they were obtained as a result of an unlawful detention. "The Fourth Amendment allows government officials to conduct an investigatory stop of a vehicle only upon a showing of reasonable suspicion: a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Thomas, 211 F.3d 1186, 1189 (9th Cir.2000) (internal quotation omitted). The government maintains that the detention was justified based upon three grounds: (1) Caseres did not signal before making a right turn, (2) Caseres's front windows appeared to be tinted, and (3) Caseres threatened Lt. Murphy. The district court upheld the detention based on Caseres's failure to signal his right turn.

We are skeptical that either of the government's first two grounds could justify a detention in this case. Under California law, a driver is required to signal a right turn only "in the event any other vehicle may be affected by the movement." Cal. Veh.Code § 22107 (emphasis added); see also People v. Cartwright, 72 Cal.App.4th 1362, 85 Cal.Rptr.2d 788, 791 n. 6 (1999) abrogated by People v. Lamont, 23 Cal. Rptr.3d 26 (Cal.App.2004).

Here, there is insufficient evidence in the record to find that any other vehicles would have been affected by Caseres's turn, so the district court likely erred in holding that Caseres could be detained based solely on his failure to signal.

Similarly, even if Lt. Murphy had noticed that Caseres's windows were tinted, he would have had no way of knowing that the tint was not factory-installed, legally tinted safety glass. See People v. Butler, 202 Cal.App.3d 602, 248 Cal.Rptr. 887, 890 (1998) ("We disagree with the People's suggestion that seeing someone lawfully driving with tinted glass raises a reasonable suspicion of illegality such that a reasonable inquiry is justified. Without additional articulable facts suggesting that the tinted glass is illegal, the detention rests upon the type of speculation which may not properly support an investigative stop.").² Therefore, neither Casere's failure to signal nor the tint on his windows appears to justify a traffic stop.

Here, however, Caseres was not actually "detained" until after he threatened to physically assault Lt. Murphy.³

A Fourth Amendment seizure occurs only when an officer intentionally applies physical restraint of a suspect, California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), or initiates a show of authority to which a reasonable innocent person would feel compelled to submit, and to which the suspect does submit for reasons that are solely related to the official show of authority, Florida v. Bostick, 501 U.S. 429, 436-37, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

Here, the government concedes that Lt. Murphy initiated a show of authority, to which a reasonable person would feel compelled to submit, when he confronted Caseres on the residential lawn, ordered him to stop, and began to question him. This detention, if successful, would likely have been unconstitutional because Lt. Murphy did not have a reasonable basis for stopping Caseres for any traffic violation....