United States v. Benjamin Schwarz , 461 F. App'x 650 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50310
Plaintiff - Appellee, D.C. No. 5:09-cr-00055-RT-1
v.
MEMORANDUM*
BENJAMIN SCHWARZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, Senior District Judge, Presiding
Submitted December 5, 2011**
Pasadena, California
Before: PREGERSON and MURGUIA, Circuit Judges, and CONLON,
District Judge.***
*
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 Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
Benjamin Schwarz appeals the district court’s denial of his motion to
suppress evidence of drugs found in his vehicle. Following the denial of his
suppression motion, Schwarz pled guilty to possession of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(ii)(II). We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
We review de novo the district court’s denial of a motion to suppress, and
review for clear error the underlying factual findings. United States v. Rodgers,
656 F.3d 1023, 1026 (9th Cir. 2011).
First, the district court correctly determined that the stop of Schwarz’s
vehicle was supported by reasonable suspicion that he had committed a traffic
violation. See United States v. Miranda-Guerena, 445 F.3d 1233, 1236 (9th Cir.
2006). The sworn declaration and testimony of Detective Solomon established that
Schwarz swerved his vehicle into a neighboring lane and cut off another vehicle,
providing reasonable suspicion that he made an unsafe lane change in violation of
California Vehicle Code § 21658(a). We accord special deference to the district
court’s determination that Detective Solomon’s statements were credible, see
United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008), and the district
court’s finding of reasonable suspicion was well-grounded in the record. Because
Detective Solomon had reasonable suspicion to believe Schwarz committed a
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traffic violation, it is immaterial whether he had a subjective motivation to stop
Schwarz’s vehicle to investigate drug trafficking. See United States v. Willis, 431
F.3d 709, 715 (9th Cir. 2005).
Second, the traffic stop was not impermissibly prolonged. Detective
Solomon conducted additional questioning unrelated to the traffic violation.
Extending the stop for questioning was permissible because the detective’s
observations and conflicting responses from Schwarz and his passenger gave rise
to a reasonable suspicion that Schwarz was engaged in drug trafficking; a fifteen
minute stop for the period necessary to investigate the suspicion of drug activity
was justified by the record. See Rodgers, 656 F.3d at 1027 (extending a traffic
stop for additional investigation was permissible where “the situation was
evolving, and new particularized factors arose that supported the continued
detention”).
Third, even if the district court erred in determining that Schwarz voluntarily
consented to the search of his truck, the search was supported by probable cause.
See United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010) (under the
automobile exception, police may search a vehicle without a warrant “if there is
probable cause to believe that the vehicle contains evidence of a crime”). Probable
cause to search was provided by the narcotics detector dog’s alert to the presence
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of drugs, coupled with Detective Solomon’s observations regarding the altered
truck bed and the truck’s occupants. See United States v. Cedano-Arellano, 332
F.3d 568, 573 (9th Cir. 2003) (an “‘alert’ by [a] certified, reliable narcotics
detector dog [i]s sufficient, even by itself, to support a finding of probable cause”);
United States v. Davis, 530 F.3d 1069, 1084 (9th Cir. 2008) (probable cause may
be supported in part by an officer’s “reasonable inferences”).
Finally, we do not consider Schwarz’s contention that the scope of the
search was impermissibly broad because he failed to raise this contention in his
motion to suppress, thereby waiving it. See United States v. Keesee, 358 F.3d
1217, 1220 (9th Cir. 2004) (“A theory for suppression not advanced in district
court cannot be raised for the first time on appeal.”). Although a waiver may be
excused for good cause, Schwarz cannot show good cause. He was aware of the
allegedly impermissible scope of the search at the time he filed his motion to
suppress. See United States v. Anderson, 472 F.3d 662, 670 (9th Cir. 2006).
AFFIRMED.
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