United States v. Michael Palumbo , 448 F. App'x 762 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 30 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10351
Plaintiff - Appellee, DC No. 2:09-cr-00207-RLH-PAL
v.
MEMORANDUM*
MICHAEL PAUL PALUMBO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted July 19, 2011
San Francisco, California
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.**
Defendant Michael Paul Palumbo (“Palumbo”) appeals his jury conviction
for being a felon in possession of a firearm, in violation of 19 U.S.C. §§ 922(g) and
924(a); possessing with intent to distribute a controlled substance, in violation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
* **
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii); and possession of a firearm in
relation to or in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A). Palumbo contends that (1) the district court erred in denying the
motion to suppress evidence resulting from his arrest because the officers did not
have probable cause to arrest him, and (2) the district court committed plain error
in finding that the search of Palumbo’s vehicle was a legitimate inventory search
pursuant to an arrest. For the reasons stated herein, we affirm.
Turning first to the denial of the motion to suppress, we review a district
court’s denial of a motion to suppress evidence de novo, but review its underlying
factual findings for clear error. United States v. Summers, 268 F.3d 683, 686 (9th
Cir. 2001). Palumbo contends that the district court erred in denying the motion to
suppress evidence obtained in connection with his arrest because the officers did
not have probable cause to arrest him. Without reaching whether the officers had
probable cause to arrest Palumbo before seeing his handgun, we conclude that the
officers had reasonable suspicion to justify a investigatory stop pursuant to Terry v.
Ohio, 392 U.S. 1, 8-10 (1968), and that the officers’ initial approach of Palumbo
constituted a Terry stop, rather than an arrest. After agreeing to meet an
undercover officer who had expressed interest in purchasing a “teener” -- street
slang for 1/16 ounce of methamphetamine -- officers observed Palumbo circling
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the parking lot of the agreed-upon meeting place and one officer observed Palumbo
engaging in hand-to-hand transactions that he suspected were narcotics
transactions. Given these circumstances, we conclude that the officers had
reasonable suspicion to believe Palumbo was engaged in the distribution of illegal
narcotics.
With respect to whether the initial stop was an investigatory stop or an
arrest, “[t]here is no bright-line rule to determine when an investigatory stop
becomes an arrest” and “in determining whether stops have turned into arrests,
courts consider the totality of the circumstances.” Washington v. Lambert, 98 F.3d
1181, 1185 (9th Cir. 1996) (citations and internal quotations omitted). “The
standard for determining whether a person is under arrest is not simply whether a
person believes that he is free to leave.” United States v. Bravo, 295 F.3d 1002,
1009 (9th Cir. 2002) (citation omitted). “[I]ntrusive measures may convert a stop
into an arrest if the measures would cause a reasonable person to feel that he or she
will not be free to leave after brief questioning—i.e., that indefinite custodial
detention is inevitable.” United States v. Guzman-Padilla, 573 F.3d 865, 884 (9th
Cir. 2009) (citation omitted). Here, while more than one police officer approached
Palumbo and ordered him to step out of his vehicle, these measures would not
cause a reasonable person to believe that “indefinite custodial detention was
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inevitable.” Since Officer Bourque did not draw his handgun until after seeing a
gun in Palumbo’s pocket, we conclude that Palumbo was not put under arrest until
after the officers saw a handgun in Palumbo’s pocket. Once the officers observed
Palumbo’s gun, they clearly had probable cause to arrest him. We thus conclude
that the evidence derived from Palumbo’s arrest was properly admitted at trial.
Turning to the argument that the district court committed plain error in
concluding that the search of Palumbo’s vehicle was a legitimate inventory search,
we conclude that Palumbo waived his right to challenge the inventory search and is
thus not entitled to have this issue reviewed at all, not even for plain error. See
United States v. Wright, 215 F.3d 1020, 1026 (9th Cir. 2000) (“By failing to
comply with Rule 12, [the defendant] waived any dispute ... and placed the issue
beyond this court’s ability to review for plain error.”). In any case, we conclude
that the district court did not commit plain error because there is nothing to suggest
that the impoundment of Palumbo’s rental vehicle was improper or contrary to
police policy.
We have considered the appellant’s additional arguments and find them to
be without merit.
AFFIRMED.
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