United States v. Mario Brooks ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30243
Plaintiff-Appellee, D.C. No.
2:18-cr-00079-TSZ-1
v.
MARIO KEITH BROOKS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted November 5, 2019**
Seattle, Washington
Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,*** District
Judge.
Appellant, Mario Keith Brooks, appeals the district court’s denial of his
motion to suppress and his subsequent criminal conviction. This Court has
*
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).
***
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the district court’s decision
de novo, United States v. Fowlkes, 804 F.3d 954, 960 (9th Cir. 2015), we affirm.
On January 13, 2018, the Tukwila Police Department (“TPD”) received a
911 call from a resident (“Caller”) of a local apartment complex. The Caller
reported that there was suspected drug activity taking place in the parking lot of
her complex as two men were behaving suspiciously. While watching the men, the
Caller reported that different people were approaching the men and, after a brief
interaction, leaving. Additionally, the Caller noted that during one of the
interactions she witnessed money exchanging hands. TPD responded to the call
with four officers. This apartment complex had become riddled with trespassers
and illegal activity, and police involvement was requested by management staff in
a formal agreement. The TPD officers arrived on scene and approached the two
men described by the Caller. The TPD officers briefly questioned the Appellant.
Afterwards, the TPD officers called in Appellant’s name and date of birth to the
dispatcher. The dispatcher responded with an unconfirmed state patrol warning that
Appellant was armed, dangerous, and a threat to law enforcement. According to
the dispatcher, Appellant previously attempted to pull a loaded firearm when
contacted by police. After receiving the warning, the TPD officers asked the
Appellant if they could frisk him and he voluntarily consented.
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The district court’s denial of the Appellant’s motion to suppress and
Appellant’s subsequent criminal conviction are supported by the record. The
question presented is whether the evidence, the firearm in Appellant’s possession,
was discovered pursuant to a lawful frisk. Here, the frisk of Appellant was
supported on two grounds. First, the TPD officers had reasonable suspicion to
believe the Appellant was armed and dangerous, warranting the frisk. Terry v.
Ohio, 392 U.S. 1, 24 (1968); Thomas v. Dillard, 818 F.3d 864, 875–76 (9th Cir.
2016). The TPD officers received a caution that the suspect previously attempted
to pull a gun on a law enforcement officer. Additionally, Appellant gave
inconsistent answers when asked if he had any weapons. This bolstered the TPD
officers’ reasonable suspicion to believe Appellant was armed and dangerous.
Second, Appellant consented to the frisk. Where an individual voluntarily
consents to a search, the Fourth Amendment is not implicated. Katz v United
States, 389 U.S. 347, n.22 (1967); United States v. Russell, 664 F.3d 1279, 1281
(9th Cir. 2012). Appellant responded with a clear and unequivocal “sure” when the
TPD officers asked to frisk him, and the record supports that his consent “was
given ‘freely and voluntarily.’” Russell, 664 F.3d at 1281 (quoting United States v.
Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997)).
AFFIRMED.
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