United States v. Pedro Ventura Arroyo ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50138
Plaintiff/Appellee, D.C. No. 3:19-cr-03026-JAH-1
v.
MEMORANDUM*
PEDRO VENTURA ARROYO,
Defendant/Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted June 9, 2021**
Pasadena, California
Before: GRABER, CALLAHAN, FORREST, Circuit Judges.
Pedro Ventura Arroyo appeals his conviction for possessing with the intent
to distribute methamphetamine and heroin. On appeal, he challenges the denial of
his motion to suppress evidence seized from his person and backpack. Having
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291, we affirm.
The officer properly stopped Arroyo because he was biking on a sidewalk in
violation of the local municipal code. See United States v. Basher, 629 F.3d 1161,
1165 (9th Cir. 2011) (“An investigatory stop or encounter does not violate the
Fourth Amendment if the officers have reasonable suspicion supported by
articulable facts that criminal activity may be afoot.” (internal quotations and
citation omitted)). Arroyo protests that the stop was pretextual—that the officer
was really interested in gang and drug activity. But “[s]ubjective intentions play
no role in ordinary . . . Fourth Amendment analysis.” Whren v. United States, 517
U.S. 806, 813 (1996). Because the officer had an objectively reasonable basis to
stop Arroyo, any ulterior motive is irrelevant.1
The officer also properly “frisked” Arroyo for weapons after stopping him.
See United States v. Davis, 530 F.3d 1069, 1082–83 (9th Cir. 2008) (holding that
weapon pat-downs are appropriate when supported by a “reasonable articulable
suspicion” that someone is armed and dangerous). The officer knew that Arroyo
was a member of a gang active in the area. He had also heard that Arroyo had
been stabbed in a gang-related feud, and Arroyo had a bandaged arm, suggesting
that he might have been armed—either to protect himself or to carry out a
1
Insofar as Arroyo challenges the duration of the investigatory stop, we hold
that it was reasonable. Less than a minute elapsed between the stop and pat-down.
2
retributive attack. Arroyo additionally expressed frustration at having been
stopped and was wearing loose-fitting clothes that could have concealed weapons.
In light of these facts, the officer was reasonably concerned for his safety. Indeed,
his concerns were well founded, as Arroyo was carrying two knives in violation of
California law. See Cal. Pen. Code § 21310.
Arroyo’s possession of those knives in turn established probable cause to
arrest him. His backpack, which contained drugs, was properly searched incident
to that arrest. See United States v. Cook, 808 F.3d 1195, 1199 (9th Cir. 2015)
(allowing warrantless searches of the area within an arrestee’s “immediate control”
for the purposes of “protecting arresting officers and safeguarding . . . evidence”).
Arroyo had told the officer that “everything” in his backpack was “illegal,” and
that comment might have meant additional weapons. Although Arroyo was
handcuffed, that fact alone does not render the officer’s brief and limited search
unconstitutional. See id. at 1199–1200. Accordingly, the district court did not err
by denying Arroyo’s motion to suppress the evidence that served as the basis for
his conviction.
AFFIRMED.
3