United States v. Richard Bernal , 599 F. App'x 694 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 31 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10486
Plaintiff - Appellee, D.C. No. 2:12-cr-01627-DGC-1
v.
MEMORANDUM*
RICHARD D. BERNAL,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted March 11, 2015**
San Francisco California
Before: W. FLETCHER, DAVIS***, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
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Appellant Richard Bernal appeals from a judgment of conviction, after a
jury trial, of being a felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1) and § 924(a)(2). He contends that the district court erred by denying his
motion to suppress the gun the police found near him after he was seized, as well
as the inculpatory statements he made about the gun. Bernal also contends that the
district court erred by denying his motion for reconsideration and his motion for a
new trial in light of new evidence casting doubt on the arresting officer’s
credibility.
We review de novo the district court’s denial of Bernal’s suppression
motion. United States v. Burkett, 612 F.3d 1103, 1106 (9th Cir. 2010). We review
for abuse of discretion the district court’s denial of his motions for reconsideration
and for a new trial. United States v. Buffington, 815 F.2d 1292, 1298 (9th Cir.
1987); United States v. King, 660 F.3d 1071, 1076 (9th Cir. 2011). For the reasons
set forth below, we affirm.
The district court properly denied Bernal’s motion to suppress, because the
police officer had reasonable suspicion that Bernal’s vehicle was involved in a hit-
and-run accident and driving under the influence. That reasonable suspicion was
supplied by a 911 call that bears the hallmarks of reliability laid out in Navarette v.
California, 134 S. Ct. 1683, 1689-90 (2014). The caller reported seeing a two-tone
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green SUV, which the caller thought was fleeing a police helicopter, quickly exit
the freeway and hit a median curb. Within minutes, the officer came upon an SUV
that matched the caller’s description near the location identified by the caller and
with damage consistent with hitting a median at high speed.
Other circumstances bolstered the officer’s reasonable suspicion that a crime
had been committed: the SUV was stopped in the middle of the road; the men in
the SUV did not welcome the officer’s assistance, as people involved in innocent
accidents normally do; they denied that an accident had occurred; they refused to
identify the driver; one of the men appeared to be drunk; and the local bars had just
closed.
Some of this information comes exclusively from the officer, whose
credibility Bernal challenges based on the officer’s inconsistent statements before
and during trial about when he handcuffed Bernal. But questions about the
officer’s credibility regarding the handcuffing do not entitle Bernal to prevail. The
officer testified consistently about the men’s demeanor and behavior when he
encountered them, and the district judge did not clearly err in finding him credible
on these points. In any event, the 911 call, coupled with the officer’s uncontested
observations about the location and condition of the SUV, establish that the seizure
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was lawful. Consequently, the district court properly denied Bernal’s suppression
motion and the post-trial motions.
Finally, Bernal is wrong that the officer violated the Fourth Amendment by
detaining him when the officer did not know whether Bernal was the driver. The
officer had cause to detain and question all of the men connected to the SUV. Cf.
Arizona v. Johnson, 555 U.S. 323, 327 (2009).
Bernal makes other arguments, but because he made these arguments for the
first time in his reply brief, and because the government has not briefed them, they
are waived.
AFFIRMED.
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