United States v. Armando Miranda , 393 F. App'x 243 ( 2010 )

Case: 09-20708 Document: 00511222062 Page: 1 Date Filed: 09/01/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 1, 2010
No. 09-20708 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ARMANDO MIRANDA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-100
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Armando Miranda pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922 and was sentenced to 96 months’
imprisonment. However, in his plea agreement, Miranda reserved the right to
appeal the district court’s denial of his motion to suppress the firearm that was
found on his person during a police pat-down. Miranda appeals on that basis,
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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and we AFFIRM his conviction and sentence.
I. BACKGROUND
By 2008, Officer Clint Ponder had worked in the Houston Police
Department’s Fondren Divisional Gang Unit for around seven years. In that
role, he had gained knowledge of several local gangs, including the “La Primera”
gang. Ponder knew that La Primera was engaged in a host of criminal activities
in Houston, ranging “from narcotics to robberies to homicide.” During this time,
Ponder had personally arrested several La Primera members, who were often
armed with guns, knives, and other weapons.
Ponder’s beat included the La Promenade apartment complex, which was
located in a crime-ridden section of Houston. Ponder knew that La Primera was
associated with La Promenade and that its members would often trespass on the
property. To combat this activity, the manager of La Promenade had authorized
police, by a written affidavit, to come onto the property, ask individuals whether
they lived there, and arrest those who were trespassing.
On October 17, 2008, Ponder and his partner, Officer Dominguez, were on
La Promenade’s property when they saw a man wearing a long white belt and
a white rosary—La Primera’s “colors.” Upon further inspection, Ponder
recognized the man as Armando Miranda; Ponder had arrested Miranda for a
marijuana offense at La Promenade in 2004, knew he was involved with La
Primera, and knew that he had been incarcerated for a robbery committed in the
area.
Suspecting that Miranda may have been trespassing, Ponder and
Dominguez stopped Miranda and asked him what he was doing at the
apartment. Shortly after stopping Miranda, and concerned for their safety
during an encounter with a known felon and gang member in a known gang area
suffering from crime, Dominguez frisked Miranda for weapons. Ponder and
Dominguez found a pistol and narcotics on Miranda, and they arrested him.
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A federal grand jury returned a one-count indictment, charging Miranda
with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). Before trial, Miranda moved to suppress the pistol and the
narcotics, arguing that Ponder and Dominguez lacked reasonable suspicion to
undertake the Terry stop and frisk. As such, Miranda contended, the officers’
warrantless detention and search violated his Fourth Amendment rights, and
the pistol and drugs should be suppressed.
The district court denied this motion, reasoning that Ponder’s experiential
knowledge coupled with his suspicion that Miranda was trespassing justified the
stop and frisk. The Government and Miranda then entered into a plea
agreement, under which Miranda pleaded guilty to count one of the indictment
and waived his right to appeal, excepting an appeal of the district court’s denial
of his motion to suppress. The district court accepted the plea agreement and
sentenced Miranda to 96 months’ imprisonment. Miranda timely appealed.
II. DISCUSSION
Miranda argues that “although the officers had reasonable suspicion to
stop him, they lacked particularized reasonable suspicion to frisk him for
weapons.” We disagree.
A. Legal Standards
“[T]he policeman making a reasonable investigatory stop should not be
denied the opportunity to protect himself from attack by a hostile suspect.”
Adams v. Williams, 407 U.S. 143, 146 (1972). “When an officer is justified in
believing that the individual whose suspicious behavior he is investigating at
close range is armed and presently dangerous to the officer,” he has the
“authority to [conduct] a reasonable search for weapons for the protection of the
police officer . . . [if] a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger.” Terry v.
Ohio, 392 U.S. 1, 24, 27 (1968). In short, “Terry requires reasonable,
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individualized suspicion before a frisk for weapons can be conducted.” Maryland
v. Buie, 494 U.S. 325, 334 n.2 (1990).
“[D]eterminations of reasonable suspicion . . . should be reviewed de novo
on appeal.” Ornelas v. United States, 517 U.S. 690, 699 (1996). However, “a
reviewing court should take care both to review findings of historical fact only
for clear error and to give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers.” Id. “This [review] process
allows officers to draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to
them that ‘might well elude an untrained person.’” United States v. Arvizu, 534
U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).
B. The Stop and Frisk of Miranda
The “totality of the circumstances” shows that Officers Ponder and
Dominguez had reasonable suspicion to stop and subsequently frisk Miranda for
weapons. First, the officers knew they were in a crime-ridden neighborhood and
were on the property of an apartment complex, which was suffering from gang-
related activity and had enlisted local police to monitor the area. “An
individual’s presence in an area of expected criminal activity, standing alone, is
not enough to support a reasonable, particularized suspicion that the person is
committing a crime. But officers are not required to ignore the relevant
characteristics of a location in determining whether the circumstances are
sufficiently suspicious to warrant further investigation.” Illinois v. Wardlow,
528 U.S. 119, 124 (2000) (citation omitted).
Second, Ponder knew Miranda, having previously arrested him, and also
knew of both Miranda’s recent criminal record and gang activity. This
information, coupled with Ponder’s experiential knowledge concerning the La
Primera gang and its violent proclivities (including its tendency to carry
weapons), supports the suspicion that Miranda may have been armed and
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dangerous. See United States v. Garza, 921 F.2d 59, 60 (5th Cir. 1991) (citing
officer’s knowledge of defendant’s prior criminal activities as support for
suspicion that defendant may be armed and as justifying a frisk for weapons);
cf. United States v. Barboza, 412 F.3d 15, 15–16 (1st Cir. 2005) (finding
reasonable suspicion to conduct a pat-down search where defendant was on a
street known for gang violence and the “[o]fficer . . . recognized Defendant[ ] . . .
as that of a gang-affiliated individual who routinely carried a firearm”); United
States v. Walden, 146 F.3d 487, 491 (7th Cir. 1998) (Terry frisk was reasonable
where “an officer [had] information that [defendant] was involved in ‘gang crime
activity’ and was ‘armed and dangerous’ [and thus] could certainly believe that
[defendant] posed a potential threat to him”); United States v. Santio, 351 F.
App’x 324, 328–29 (10th Cir. 2009) (“Although gang affiliation or prior criminal
conduct cannot, standing alone, create a reasonable suspicion to support a
search or seizure, under certain circumstances it may be an appropriate factor
in determining if reasonable suspicion exists for a detention or search.”).
In sum, the circumstances here led Ponder to reasonably suspect that
Miranda was trespassing on La Promenade’s property and that he may have
been armed and dangerous: Miranda was a known felon, a gang member in a
violent gang, wearing gang colors, and trespassing at an apartment complex,
which was suffering from gang-related crime. Indeed, we have recognized that
“when someone engages in suspicious activity in a high crime area, where
weapons and violence abound, police officers must be particularly cautious in
approaching and questioning him.” United States v. Rideau, 969 F.2d 1572,
1575 (5th Cir. 1992) (en banc) (finding that those circumstances combined with
defendant’s nervous behavior justified a Terry frisk). We agree with the district
court that a “reasonably prudent [person]” in Ponder’s (and Dominguez’s)
position would be warranted in believing that his safety was endangered, Terry,
392 U.S. at 27, and that reasonable suspicion supported the frisk of Miranda.
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See id; Buie, 494 U.S. at 334 n.2. The pistol uncovered by this search was
properly admitted.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of conviction and
sentence.
AFFIRMED.
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