United States v. Andrei Raileanu , 609 F. App'x 377 ( 2015 )

FILED
NOT FOR PUBLICATION APR 21 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10127
Plaintiff - Appellee, D.C. No. 2:13-CR-00038-APG-
PAL-1
v.
MEMORANDUM*
ANDREI RAILEANU,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted March 10, 2015
San Francisco, California
Before: W. FLETCHER, DAVIS**, and CHRISTEN, Circuit Judges.
Defendant Andrei Raileanu appeals the district court’s denial of his motion
to suppress evidence and statements. For the reasons stated below, we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
1. We review de novo the district court’s denial of a motion to suppress.
United States v. Brobst, 558 F.3d 982, 991 (9th Cir. 2009). The factual findings
underlying the denial of the motion to suppress are reviewed for clear error. Id.
We also review de novo the adequacy of a Miranda warning, United States
v. Williams, 435 F.3d 1148, 1151 (9th Cir. 2006), and whether reasonable
suspicion justified a traffic stop, United States v. Palos-Marquez, 591 F.3d 1272,
1274 (9th Cir. 2010).
2. Although Appellant’s contrary arguments are not without force, Officer
Jordan Bundy had reasonable suspicion to stop Raileanu’s car. See United States
v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013) (en banc) (explaining that
reasonable suspicion “is not a particularly high threshold to reach”). Raileanu’s
counter-surveillance behavior at the gas station (standing at the corner of the gas
station and “peering” around a building, seemingly looking for the patrol vehicle),
combined with his touching the fog line, the white line that demarcates the road
shoulder from the travel lane, three times within about a quarter of a mile, gave rise
to reasonable suspicion of a DUI. See United States v. Del Vizo, 918 F.2d 821, 826
(9th Cir. 1990) (driving or acting in an evasive or counter-surveillance fashion can
be an indicant of criminal activity).
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3. Moreover, the scope and duration of the traffic stop fell well within
constitutional limits. Upon initiating the traffic stop, Officer Bundy asked
Raileanu a reasonable number of questions about his behavior at the gas station
and where he was headed and for what purpose. See Arizona v. Johnson, 555 U.S.
323, 333 (2009) (“An officer’s inquiries into matters unrelated to the justification
for the traffic stop . . . do not convert the encounter into something other than a
lawful seizure, so long as those inquiries do not measurably extend the duration of
the stop.”). As for the time period following Raileanu’s consent to search, Officer
Bundy promptly called for back-up when Raileanu provided his consent, backup
arrived only minutes later, and the search concluded within twelve to twenty
minutes from the beginning of the stop. Cf. United States v. Turvin, 517 F.3d
1097, 1101, 1103–04 (9th Cir. 2008) (determining that a fourteen-minute stop was
reasonable); United States v. Mayo, 394 F.3d 1271, 1275–76 (9th Cir. 2005)
(determining that a forty-minute stop was reasonable).
4. Next, Officer Bundy obtained Raileanu’s voluntary consent to search his
car. See United States v. Patayan Soriano, 361 F.3d 494, 501–02 (9th Cir. 2003)
(explaining that, in deciding whether the defendant gave voluntary consent, the
court should consider “(1) whether defendant was in custody; (2) whether the
arresting officers had their guns drawn; (3) whether Miranda warnings were given;
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(4) whether the defendant was notified that []he had a right not to consent; and (5)
whether the defendant had been told a search warrant could be obtained” (quoting
United States v. Jones, 286 F.3d 1146, 1152 (9th Cir. 2002)). Although Officer
Bundy did not advise Raileanu that he was free to leave prior to the request for
consent, Raileanu was not under arrest, and Miranda warnings were not required.
Additionally, although Officer Bundy did not advise Raileanu of his right not to
consent, he did not have his weapon drawn at any time during the traffic stop, and
he never threatened to obtain a search warrant should Raileanu refuse consent.
As for Raileanu’s claim that his consent to search was invalid because
English is not his primary language, the district court credited the officers’ account
that he “responded appropriately to questions in English, followed instructions in
English, and provided identification and registration when requested in English.”
Moreover, the district court found that “Raileanu did not ask for an interpreter or
claim at any point . . . that he did not understand English.” The district court’s
findings do not reflect error, much less “clear error.” See Palos-Marquez, 591 F.3d
at 1274.
5. Finally, although Officer Bundy provided inadequate Miranda warnings
and thus the statements made to him must be excluded, Agent Adams’ later
Miranda warnings were complete and sufficient and warranted the admission of
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Raileanu’s statements to Adams. Specifically, although Officer Bundy omitted the
advice that, if Raileanu could not afford an attorney, one would be appointed to
represent him, Agent Adams read Raileanu his full Miranda rights, clearly
advising him of the right to appointed counsel. Furthermore, at least one and a half
to two hours separated administration of the two sets of warnings, which of course
were not read by the same officer. Cf. United States v. San Juan-Cruz, 314 F.3d
384, 387–88 (9th Cir. 2002) (concluding that the defendant was not clearly
informed of his Miranda rights, where the same officer provided contradictory
warnings and it was not clear from the record how much time elapsed between the
two warnings); United States v. Connell, 869 F.2d 1349, 1353 (9th Cir. 1989)
(concluding that “[t]he subsequent statements . . . —that ‘a lawyer may be
appointed to represent you’ . . . and that if [you] want but cannot afford a lawyer
‘arrangements will be made for [you] to obtain a lawyer in accordance with the
law’—did not clearly inform [the defendant] that if he could not afford an attorney
one would be appointed for him prior to questioning, if he so desired”).
AFFIRMED.
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