United States v. Jesse Hernandez ( 2012 )

FILED
NOT FOR PUBLICATION JUL 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50322
Plaintiff - Appellee, D.C. No. 8:10-cr-00162-CJC-1
v.
MEMORANDUM *
JESSE ALEXANDER HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted March 7, 2012
Pasadena, California
Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.
Jesse Hernandez appeals from the district court’s denial of his motion to
suppress evidence, after which he entered a conditional guilty plea to possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). We reverse. Because the parties
are familiar with the history of this case, we need not recount it here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I
Hernandez has standing to challenge the disputed search and seizure. The
government contends that his probationary status deprives him of standing.
However, a probation search condition permits law enforcement to perform a
search with less than probable cause or reasonable suspicion “only if the police had
advance knowledge that the search condition applied before they conducted the
search.” United States v. Caseres, 533 F.3d 1064, 1075-76 (9th Cir. 2008). It is
undisputed in this case that the officers had no prior knowledge of Hernandez’s
status.
II
Because it was not a probationary search, the search conducted in this case
was valid only if the officers had reasonable suspicion that Hernandez was
involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968). To determine
whether there was reasonable suspicion to detain an individual for questioning,
courts “must consider the totality of the circumstances surrounding the stop.”
United States v. Hall, 974 F.2d 1201, 1204 (9th Cir. 1992). Considering the
totality of the circumstances here, the search was not justified by reasonable
suspicion.
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There is no dispute that Hernandez was the victim of a crime. The bus
driver reported to police that two assailants had entered his bus, beaten Hernandez,
and threatened to kill him. Hernandez was identified as the victim of possible
criminal activity to the police as soon as they arrived at the scene. However,
instead of investigating and detaining the assailants, who simply ran away after
police arrived, the police extensively questioned and searched the victim.
Nervousness alone does not justify the search. Moreno v. Baca, 431 F.3d 633, 642
(9th Cir. 2005). Suspicion of drug use or a conclusory statement about officer
safety do not provide the reasonable suspicion necessary to conduct a search for
weapons. Ramirez v. City of Buena Park, 560 F.3d 1012, 1022 (9th Cir. 2009). In
sum, the totality of circumstances in this case does not justify the search.
Nor is the search justified by the inevitable discovery doctrine. The
government argues that if the officers had checked, they would have discovered an
outstanding arrest warrant. This theory is persuasive only if “there is no question
that the initial stop was based on reasonable suspicion.” Hiibel v. Sixth Judicial
Dist. Court of Nev., 542 U.S. 177, 184 (2004). Here, it was not.
REVERSED.
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