United States v. Taylor, 111716 FED9, 15-10592

• Party Name: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAQUAN DESHAWN TAYLOR, Defendant-Appellant.
• Judge Panel: Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and EZRA, District Judge.
• Case Date: November 17, 2016
• Court: United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JAQUAN DESHAWN TAYLOR, Defendant-Appellant.

No. 15-10592

United States Court of Appeals, Ninth Circuit

November 17, 2016

NOT FOR PUBLICATION

Submitted November 15, 2016 ^[**] San Francisco, California

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding D.C. No. 3:15-cr-00205-WHA-1

Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and EZRA, ^[***] District Judge.

MEMORANDUM ^[*]

Defendant-Appellant Jaquan Taylor appeals his conviction, following a stipulated-facts bench trial, for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g). Taylor argues that the district court should have suppressed the gun and ammunition that slipped from his waistband when a police officer tackled Taylor to the ground after he suddenly ran away from the police. Taylor contends that the gun and ammunition were fruits of an unconstitutional seizure because the police did not have reasonable suspicion to stop him. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The government argues for the first time on appeal that Taylor was not "seized" for purposes of the Fourth Amendment before the gun and ammunition fell from his waistband and, therefore, that those items cannot be fruits of an illegal seizure. The government waived this argument by failing to present it to the district court. United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991).

2. Reasonable suspicion requires a "particularized and objective basis for suspecting the particular person stopped of criminal activity" under the "totality of the circumstances." United States v. Cotterman, 709 F.3d 952, 968 (9th Cir. 2013) (en banc) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Headlong flight, like other nervous, evasive behavior, can support reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). The characteristics of a particular location are also "relevant contextual considerations." See id. We review reasonable suspicion determinations de novo, but we review the district court's underlying factual findings for clear error, "giving 'due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" Cotterman, 709 F.3d at 968 (quoting Ornelas v. United States, 517 U.S. 690, 699...