United States v. Robert Brown, Jr. , 366 F. App'x 784 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 22 2010
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. 09-30210
Plaintiff - Appellee, D.C. No. 2:08-CR-02045-LRS-1
v.
MEMORANDUM *
ROBERT JOSEPH BROWN, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding
Submitted February 3, 2010 **
Seattle, Washington
Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.
Appellant Robert Brown, Jr. (Brown) appeals the district court’s denial of
his motion to suppress evidence. Brown asserts that Community Corrections
*
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).
Officers Michael Hisey (Hisey) and Brent Martin (Martin) violated his Fourth
Amendment right against unreasonable search and seizure.
Hisey and Martin conducted a constitutional stop and frisk pursuant to Terry
v. Ohio, 392 U.S. 1 (1968). Based on the totality of the circumstances, Hisey and
Martin reasonably suspected Brown of criminal activity and feared for their safety
because Brown entered a gang-associated residence after being told not to; wore
baggy gang-related clothes capable of concealing a weapon; acted nervous upon
seeing the officers; made furtive movements around his waist and pockets, and
refused to keep his hands where the officers could see them despite requested
requests to do; and was carrying an aerosol can of gun cleaning oil in his pocket.
See United States v. Johnson, 581 F.3d 994, 999-1000 (9th Cir. 2009) (describing
the Terry standard).
Hisey and Martin’s limited use of force did not convert the investigatory
stop into an arrest. Hisey and Martin detained Brown in order to quickly confirm
or dispel their suspicion that Brown was armed. See United States v. Thompson,
282 F.3d 673, 677-78 (9th Cir. 2002). Hisey and Martin’s fear for their safety
justified their use of force and coercive tactics. See United States v. Ricardo D.,
912 F.2d 337, 340 (9th Cir. 1990).
AFFIRMED.