United States v. Tony Williams , 837 F.3d 1016 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF No. 15-10008
AMERICA,
Plaintiff-Appellant, D.C. No.
2:14-cr-00334-RFB-VCF-1
v.
TONY WILLIAMS, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware, District Judge, Presiding
Argued and Submitted January 7, 2016
San Francisco, California
Filed September 20, 2016
Before: J. Clifford Wallace and Alex Kozinski, Circuit
Judges and Robert H. Whaley,* Senior District Judge.
Opinion by Judge Wallace
*
The Honorable Robert H. Whaley, Senior District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by
designation.
2 UNITED STATES V. WILLIAMS
SUMMARY**
Criminal Law
The panel reversed the district court’s order granting a
motion to suppress evidence of crack cocaine in the
defendant’s pockets and the firearm in his vehicle.
The panel held that police officers had reasonable
suspicion to conduct an investigatory stop based on the
information they possessed and the reliability of a telephone
tip.
After the initial stop, the officers developed probable
cause to arrest the defendant because he obstructed them in
their attempt to enforce Nevada Revised Statute § 171.123,
which dictates that police officers may detain a suspect whom
the officers have reasonable suspicion has committed, is
committing, or is about to commit a crime, in order to obtain
that individual’s identity. The panel held that the government
did not waive its argument that the officers had probable
cause to arrest the defendant for violating § 171.123 where
before the district court the government argued generally that
the officers had probable cause to arrest him because he ran.
The panel held that the officers conducted a valid search
incident to arrest when they searched the defendant’s pockets
and found crack cocaine.
The panel further held that the officers lawfully searched
the defendant’s vehicle because, under the totality of the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. WILLIAMS 3
circumstances, they had probable cause to believe that it
contained contraband or evidence of drug dealing.
The panel remanded the case for further proceedings.
COUNSEL
Adam M. Flake (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Daniel G. Bogden,
United States Attorney; United States Attorney’s Office, Las
Vegas, Nevada; for Plaintiff-Appellant.
Amy B. Cleary (argued), Assistant Federal Public Defender;
Rene L. Vallardes, Federal Public Defender; Office of the
Federal Public Defender, Las Vegas, Nevada; for Defendant-
Appellee.
OPINION
WALLACE, Circuit Judge:
The government appeals from the district court’s order
granting Williams’s motion to suppress evidence of the crack
cocaine in his pockets and the firearm in his vehicle. We have
jurisdiction pursuant to 18 U.S.C. § 3731, and we reverse.
I.
We review de novo an order granting a motion to
suppress. See United States v. Crawford, 372 F.3d 1048, 1053
(9th Cir. 2004) (en banc). “A determination whether there
was reasonable suspicion to support an investigatory ‘stop
4 UNITED STATES V. WILLIAMS
and frisk’ is a mixed question of law and fact, also reviewed
de novo.” United States v. Burkett, 612 F.3d 1103, 1106 (9th
Cir. 2010). The district court’s factual findings are reviewed
for clear error. Crawford, 372 F.3d at 1053 (citing United
States v. Hammett, 236 F.3d 1054, 1057–58 (9th Cir. 2001)).
II.
At 4:40 a.m., a person who identified himself as Tony
Jones telephoned a Las Vegas police hotline to report an
adult, black male sleeping inside a grey Ford Five Hundred
car. Jones reported that the man was “known to sell drugs in
the area,” did not live in the adjacent apartment complex, and
Jones expressed that he “just wanted the person moved out of
the area.” Jones provided the operator with his phone number
and address.
The Las Vegas Metropolitan Police Department (Metro)
dispatched two officers on duty in the reported area, Alvin
Hubbard and Thomas Keller. Hubbard and Keller were on
patrol in a marked Metro patrol car, with Hubbard driving.
When Hubbard and Keller arrived at the apartment complex
the caller had identified, they saw a grey Ford Five Hundred
car in the parking lot. The Ford had temporary license plates,
preventing the officers from securing an initial vehicle check.
The Ford was flanked by a car on either side and a
parking curb in front. Hubbard stopped the patrol car behind
the grey Ford, blocking its exit. The officers turned on their
overhead lights, “take-down” lights, and spotlights, shining
them into the Ford’s windows. After the officers turned on
their lights, a black male, later identified as defendant Tony
Williams, sat up in the driver’s seat inside the Ford. Williams
looked to his left and right, then started his car. Williams
UNITED STATES V. WILLIAMS 5
momentarily placed the car in reverse and then quickly
shifted the car back into park.
By the time Williams started the car, both officers were
approaching the Ford on foot. Hubbard approached the car on
the driver’s side, while Keller approached on the passenger’s
side with his handgun drawn. Hubbard yelled at Williams
through the Ford’s closed windows to turn off the engine and
exit the vehicle.
Williams complied and got out of the car. Hubbard
continued walking towards Williams, until he was within
three to four feet of him. Williams, without saying a word,
ran. He ran toward the front of the Ford and around the other
cars in the parking lot.
Keller ran after Williams on foot, and Hubbard joined the
pursuit in the patrol car. The pursuit lasted approximately one
minute. Two or three buildings away from the parking lot,
Williams fell and did not get up. He remained on the ground
where he had fallen with his hands out. Keller approached
with his gun drawn and stood over Williams. Hubbard arrived
shortly after in the patrol car, observed Williams prone on the
ground, performed a protective sweep of his backside, and
handcuffed him.
Hubbard then did a pat down of Williams’s backside.
Hubbard then helped Williams from the ground and brought
him to the front of the patrol vehicle. At that point, Hubbard
did a pat down of Williams’s front. He proceeded to reach
into all of Williams’s pants’ pockets. In the right front pocket,
Hubbard found a plastic bag containing crack cocaine. In the
left front pocket, Hubbard found $1,165.00.
6 UNITED STATES V. WILLIAMS
Hubbard placed Williams in the back of the patrol car and
drove back to the parking lot where the Ford was still parked.
With Williams handcuffed in the back of the patrol car,
Hubbard began searching the Ford. Hubbard discovered that
the Ford was not registered to Williams but rather to a
company named Rodo. The officers never telephoned the
company, nor made a call to Metro dispatch to have the
vehicle towed or impounded.
As Hubbard searched the car, he found pots, pans, food,
and utensils. In the back seat, he found a purse; when he
unzipped it, he found a gun inside. Hubbard placed the purse
on the hood of the patrol car and contacted his sergeant, who
called for a detective from the firearms unit.
On October 8, 2014, a federal grand jury in Nevada
returned an indictment against Williams for being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)
and 924(a). The grand jury returned a superseding indictment
on December 10, 2014, adding charges for violating
21 U.S.C. §§ 841(a)(1) and (b)(1)(C) by possessing a
controlled substance with intent to distribute, and 18 U.S.C.
§ 924(c)(1)(A)(i) by possessing a firearm in furtherance of a
drug trafficking offense. Williams moved to suppress the
evidence of the crack cocaine and handgun found during the
search of Williams and the Ford. The district court granted
the motion, and the government now appeals.
III.
The government challenges the district court’s
suppression of the evidence on the grounds that (1) the
officers had reasonable suspicion to conduct an investigatory
stop; (2) after the initial stop, the officers developed probable
UNITED STATES V. WILLIAMS 7
cause to arrest Williams and perform a search incident to a
lawful arrest; and (3) the officers had probable cause to
search Williams’s vehicle.
A.
The government first argues that the district court erred in
concluding that the officers lacked reasonable suspicion to
conduct an investigatory stop. The Fourth Amendment
permits brief investigative stops when a law enforcement
officer has reasonable suspicion that the person stopped is
engaged in criminal activity. Navarette v. California, 134 S.
Ct. 1683, 1687 (2014). Reasonable suspicion requires more
than a mere “hunch” of wrongdoing, but the degree of proof
needed is “considerably less than proof of wrongdoing by a
preponderance of the evidence,” and “obviously less
demanding than that for probable cause.” United States v.
Sokolow, 490 U.S. 1, 7 (1989) (citations and internal
quotation marks omitted). Whether reasonable suspicion
exists depends upon the totality of the circumstances
surrounding the stop, including “both the content of
information possessed by police and its degree of reliability.”
Alabama v. White, 496 U.S. 325, 330 (1990); see also
Navarette, 134 S. Ct. at 1687.
In assessing the role of telephone tips in investigative
stops, the Supreme Court and our court have focused on
whether the tips have “sufficient indicia of reliability to
provide reasonable suspicion to make [an] investigatory
stop.” White, 496 U.S. at 327; United States v. Edwards,
761 F.3d 977, 983 (9th Cir. 2014). In White, an anonymous
tipster telephoned police to report that the defendant would be
leaving a particular apartment at a particular time in a
particular vehicle, and that the defendant would be heading
8 UNITED STATES V. WILLIAMS
towards a specific motel in possession of cocaine. 496 U.S.
at 327. The police went to the identified apartment, saw a
vehicle matching the description, and pursued the vehicle as
it made its way to the specified motel. Id. Officers stopped
the vehicle just short of the motel and discovered marijuana
and cocaine inside. Id. The Court held that the anonymous tip
“exhibited sufficient indicia of reliability to justify the
investigatory stop” because the anonymous tipster predicted
the defendant’s future behavior and the officers corroborated
the tip through independent police work. Id. at 330–32.
The Supreme Court further clarified the factors used in
assessing the reliability of tips in Navarette. There, an
unidentified 911 caller reported that a truck ran her off the
road. 134 S. Ct. at 1686–87. A police officer responded to the
911 broadcast, located the truck, and pulled it over. Id. at
1687. Officers smelled marijuana when they approached the
truck and a subsequent search uncovered 30 pounds of
marijuana. Id. The Court held that the 911 call had sufficient
indicia of reliability to provide the officers with reasonable
suspicion that the truck ran the caller off the roadway,
reasoning that (1) the tip indicated that the caller had
eyewitness knowledge of the incident, “lend[ing] significant
support to the tip’s reliability,” id. at 1689; (2) police
corroborated the tip by verifying the truck’s location near
where the caller stated the incident occurred, id.; (3) the caller
used the 911 system, which identifies and traces callers, thus
increasing the tip’s veracity by “provid[ing] some safeguards
against making false reports with immunity,” id. at 1689–90;
and (4) the caller reported a specific and potentially ongoing
crime. Id. at 1690.
Applying the principles articulated in White and
Navarette, we hold that officers Hubbard and Keller had
UNITED STATES V. WILLIAMS 9
reasonable suspicion to stop Williams based on the
information they possessed and the tip’s reliability. First, the
tipster, Tony Jones, telephoned a police hotline and provided
his name, address, and phone number. Second, the officers
verified the information Jones relayed through independent
observation. Jones provided officers with Williams’s location
and the make of Williams’s car. When the officers arrived at
the specified parking lot, they found the reported grey Ford
Five Hundred with a man inside. Third, Jones provided
specific criminal allegations. Jones reported that Williams
was sleeping in a car in an adjacent apartment complex, even
though Williams did not live there. Jones also reported that
Williams was known to sell drugs in the area.
Fourth, the officers’ suspicion was increased when they
witnessed Williams’s behavior upon arriving at the parking
lot. When the officers shone the light on Williams’s car, he
popped up in the driver’s seat and immediately looked left
and right. Williams then proceeded to place the car in reverse.
The officers testified that this conduct was consistent with
someone who intended to flee the scene. Lastly, the incident
occurred in a high-crime area around 5:00 a.m. See Illinois v.
Wardlow, 528 U.S. 119, 124 (2000) (Although “[a]n
individual’s presence in an area of expected criminal activity,
standing alone, is not enough to support a reasonable,
particularized suspicion that the person is committing a
crime,” police can consider the “relevant characteristics of a
location in determining whether the circumstances are
sufficiently suspicious to warrant further investigation”). The
officers testified that they were aware of gang activities in the
area, and often responded to domestic violence and “party
calls” there.
10 UNITED STATES V. WILLIAMS
Williams’s reliance on Florida v. J.L., 529 U.S. 266
(2000), is unpersuasive. In J.L., an anonymous caller told
police “that a young black male standing at a particular bus
stop and wearing a plaid shirt was carrying a gun.” Id. at 268.
Police went to the bus stop, frisked a young black male in
plaid, and seized a gun from his pocket. Id. The Court held
that the police lacked reasonable suspicion to stop the
suspect, reasoning that the call “provided no predictive
information,” leaving the “police without means to test the
informant’s knowledge or credibility.” Id. at 271. The tip also
failed to allege more than “[a]n accurate description of a
subject’s readily observable location and appearance,” and
did not show how the tipster had knowledge of the alleged
“concealed criminal activity.” Id. at 272.
By contrast, the tip in this case not only provided an
accurate description of the suspect, but it also alleged
ongoing, observable criminal activity—trespass. Jones
identified Williams’s location, car, and appearance and also
stated that Williams was sleeping in a car in an adjacent
apartment building’s lot, even though Williams did not live
there. Unlike the concealed criminal activity alleged in J.L.,
Jones provided predictive information concerning Williams’s
activity, which the officers were able to immediately verify
when they arrived.
Even if there were a question as to whether the tip, on its
own, provided the officers with the requisite reasonable
suspicion to detain Williams, the tip was certainly sufficient
to justify further investigation. After receiving the
information provided by the tipster, the officers would have
been delinquent had they not driven over to the parking lot to
investigate the situation. The officers testified at the
evidentiary hearing that the reported conduct, if confirmed,
UNITED STATES V. WILLIAMS 11
would be indicative of a potential DUI, as well as loitering or
trespassing. When they arrived, the officers faced a
potentially dangerous situation. They encountered a possible
drug dealer, sitting in a car with temporary license plates, in
a dark and deserted parking lot, in a high-crime area, during
the early hours of the morning. Accordingly, the officers
acted reasonably when they blocked in the driver with their
police car, turned on their police lights, and one of the
officers drew his gun. These actions led to Williams’s
subsequent suspicious conduct, which included placing his
car in reverse, ignoring the officers’ questions, and ultimately
darting away on foot.
Based on the totality of the circumstances surrounding the
stop, the officers had reasonable suspicion to briefly detain
Williams, and the district court erred in concluding otherwise.
B.
1.
The government contends that the officers had probable
cause to arrest Williams because he obstructed the officers in
their attempt to enforce Nevada Revised Statute (N.R.S.)
§ 171.123. Section 171.123 dictates that police officers may
detain a suspect whom the officers have reasonable suspicion
has committed, is committing, or is about to commit a crime,
in order to obtain that individual’s identity.1 When the suspect
1
N.R.S. § 171.123(1) and (3) provide: “Any peace officer may detain
any person whom the officer encounters under circumstances which
reasonably indicate that the person has committed, is committing or is
about to commit a crime. . . . The officer may detain the person pursuant
to this section only to ascertain the person’s identity and the suspicious
12 UNITED STATES V. WILLIAMS
fails to identify himself after officers have detained him under
reasonable suspicion, the suspect violates N.R.S. § 199.280
(Nevada’s obstruction statute), which makes it unlawful for
a person to “willfully resist[], delay[] or obstruct[] a public
officer in discharging or attempting to discharge any legal
duty of his or her office.”
As explained above, the officers had reasonable suspicion
to conduct an investigatory stop: a caller reported that
Williams was sleeping in his car outside of an apartment
building that Williams did not live in; the caller reported that
he knew Williams to be a drug dealer; Williams acted as if he
intended to flee when officers approached him; and the
conduct occurred in a high-crime area early in the morning.
Accordingly, the officers had reasonable suspicion to stop
Williams and, pursuant to section 171.123, could approach
Williams to ascertain his identity. Instead of speaking with
the officers, Williams immediately ran, preventing the
officers from discharging their duty under section 171.123
and, accordingly, violating Nevada’s obstruction statute.
In holding that the officers lacked probable cause to arrest
Williams, the district court concluded that simply fleeing
from an officer, while it establishes reasonable suspicion,
does not establish probable cause that the individual violated
Nevada’s obstruction statute. See United States v. Smith,
633 F.3d 889, 893 (9th Cir. 2011) (“[A] person’s ‘headlong,’
‘unprovoked’ flight upon seeing a police officer, when it
occurs in a high-crime neighborhood, is sufficient to establish
reasonable suspicion that the person is involved in criminal
activity.”) (quoting Illinois v. Wardlow, 528 U.S. 119, 124–25
(2000)). The district court, however, ignored the interplay
circumstances surrounding the person’s presence . . . .”
UNITED STATES V. WILLIAMS 13
between section 171.123 and Nevada’s obstruction statute.
The officers did not have probable cause to arrest Williams
on the basis of the obstruction statute alone; rather, the
officers had probable cause to effectuate an arrest because
Williams obstructed officers in their efforts to enforce section
171.123.
Williams nevertheless contends that the government
waived its argument that the officers had probable cause to
arrest him for violating N.R.S. § 171.123. Before the district
court, the government argued that the officers had probable
cause to arrest Williams; however, the government failed to
specify that the officers had probable cause to arrest Williams
because he violated N.R.S. § 171.123, and the district court
never addressed that statute.
Our court applies “a ‘general rule’ against entertaining
arguments on appeal that were not presented or developed
before the district court.” Peterson v. Highland Music, Inc.,
140 F.3d 1313, 1321 (9th Cir. 1998) (citation omitted).
However, we have made it clear that “it is claims that are
deemed waived or forfeited, not arguments.” United States v.
Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004); see
Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379
(1995). Specifically, “[o]nce a federal claim is properly
presented, a party can make any argument in support of that
claim; parties are not limited to the precise arguments they
made below.” Yee v. City of Escondido, 503 U.S. 519, 534
(1992).
Our court’s opinion in United Sates v. Guzman-Padilla,
573 F.3d 865 (9th Cir. 2009), is instructive. In Guzman-
Padilla, the defendant moved to suppress evidence of 479.95
kilograms of marijuana that border patrol agents seized when
14 UNITED STATES V. WILLIAMS
the defendant crossed the Mexican-American border. Id. at
874–76. Before the district court, the government argued
generally that the agents’ seizure of the defendant’s vehicle
did not require probable cause. Id. at 873, 877 n.1. On appeal,
the government argued more specifically that the agents did
not need probable cause to seize the defendant’s vehicle
because of the border search exception to the Fourth
Amendment. Id. at 874, 877 n.1. Our court held that, because
the government had advanced its probable cause argument
before the district court, it was not circumscribed from
advancing a more specific argument in support of its theory.
Id. at 877 n.1.
The situation in our present case is nearly identical to
Guzman-Padilla. Before the district court, the government
argued generally that the officers had probable cause to arrest
Williams because he ran. On appeal, the government argued
more specifically that the officers had probable cause to arrest
Williams for violating N.R.S. § 171.123 when he ran. The
government, having advanced its probable cause theory
before the district court, is able to make a more precise
argument on appeal as to why the officers had probable
cause.
2.
Because the officers lawfully arrested Williams, the
government contends that the officers conducted a valid
search incident to arrest when they searched Williams’s
pockets and found crack cocaine. The Supreme Court and our
court have already held that a search incident to a lawful
arrest is not limited to simple pat-down of the suspect and can
“involve a relatively extensive exploration” of the areas
within the arrestee’s immediate control. United States v.
UNITED STATES V. WILLIAMS 15
Robinson, 414 U.S. 218, 227 (1973) (internal quotation marks
omitted); see also United States v. Maddox, 614 F.3d 1046,
1048 (9th Cir. 2010). Those areas include the arrestee’s
person and the inside pockets of the arrestee’s clothing. See
Robinson, 414 U.S. at 224–25. Here, the officers had
probable cause to arrest Williams and performed a valid
search incident to arrest of Williams’s person—which
lawfully extended to the insides of Williams’s pockets—after
apprehending Williams for obstruction.
C.
Lastly, the government contends that the officers lawfully
searched Williams’s vehicle because they had probable cause
to believe the Ford contained contraband or evidence of drug
dealing.2
Officers may conduct a warrantless search of an
automobile, including containers within it, when they have
probable cause to believe that the vehicle contains contraband
or evidence of criminal activity. United States v. Ewing,
638 F.3d 1226, 1231 (9th Cir. 2011); see Wyoming v.
Houghton, 526 U.S. 295, 302 (1999) (“When there is
probable cause to search for contraband in a car, it is
reasonable for police officers . . . to examine packages and
containers without a showing of individualized probable
cause for each one”). Probable cause exists when, based on
the totality of the circumstances, there is a “fair probability
2
The government also argues that the officers legally searched the
vehicle as a search incident to a lawful arrest. Because we hold that the
officers had probable cause to search the vehicle, we do not address the
government’s alternative argument.
16 UNITED STATES V. WILLIAMS
that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
Under the totality of the circumstances, the officers had
probable cause to believe that evidence of contraband would
be found in Williams’s vehicle. Before arriving on the scene,
the officers received information from Metro dispatch that
Williams was sleeping in his car in an unauthorized location
and was known to deal drugs in the area. Moreover, the
officers approached the vehicle early in the morning—around
5:00 a.m.—and were in a high-crime neighborhood. When
officers approached the vehicle, Williams popped up, looked
around, and temporarily placed the car in reverse. After
Williams got out of the vehicle, he immediately fled the
scene. Officers caught Williams after he tripped and fell to
the ground. In searching Williams’s person after effectuating
a lawful arrest, Hubbard found individually wrapped crack
cocaine in plastic containers. He also found $1,165.00 in cash
in small denominations. Based on the information the
officers had prior to making the arrest—and the contraband
they found during the arrest—the officers had probable cause
to believe that the vehicle which Williams had only just fled
contained further contraband or other evidence of drug
dealing.
Williams argues that because the officers arrested him for
“obstructing by running,” there is no conceivable evidence
related to the obstruction charge that the officers could find
in the vehicle. Williams ignores the evidence which emerged
as soon as the officers conducted a lawful search incident to
arrest: the individually wrapped packages of crack cocaine in
his pockets. The crack cocaine provided the officers with the
probable cause necessary to arrest Williams for drug
UNITED STATES V. WILLIAMS 17
possession and drug dealing, two crimes in which a vehicle
could reasonably contain further evidence.
Williams also contends that the government waived its
right to argue on appeal that the officers had probable cause
to search his vehicle because it failed to raise the argument
with the district court. Williams’s argument fails: the district
court considered whether the officers had probable cause to
conduct a warrantless search of Williams’s vehicle and held
that the police had none. Our court does not deem an issue
waived “if the district court actually considered it.” Cmty.
House, Inc. v. City of Boise, 490 F.3d 1041, 1054 (9th Cir.
2007) (citing Harrell v. 20th Century Ins. Co., 934 F.2d 203,
205 n.1 (9th Cir. 1991)).
IV.
In conclusion, the district court erred in concluding that
the officers lacked reasonable suspicion to detain Williams;
lacked probable cause to arrest Williams; unlawfully
performed a search incident to arrest; and lacked probable
cause to conduct a warrantless search of Williams vehicle.
We therefore reverse and remand for proceedings consistent
with this opinion.
REVERSED and REMANDED.