United States v. Salvador Pacheco-Garcia

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 15 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-50047
Plaintiff - Appellee, D.C. No. 3:10-cr-00918-JLS-2
v.
MEMORANDUM*
SALVADOR PACHECO-GARCIA,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-50048
Plaintiff - Appellee, D.C. No. 3:10-cr-00918-JLS-1
v.
MAURO BARRERA-MORENO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted December 5, 2011
Pasadena, California
Before: PREGERSON and MURGUIA, Circuit Judges, and CONLON, District
Judge.**
Defendants-Appellants Salvador Pacheco-Garcia and Mauro Barrera-
Moreno (“Defendants”) appeal the district court’s denial of their motions to
suppress evidence in connection with their convictions for possession of
methamphetamine with the intent to distribute in violation of 21 U.S.C. §
841(a)(1). We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291.
The facts are known to the parties and we do not recite them here.
I. Factual Findings and Credibility Determination
This Court reviews findings of fact regarding motions to suppress for clear
error. See FED. R. CIV. P. 52(a)(6); United States v. Prieto-Villa, 910 F.2d 601,
604 (9th Cir. 1990). Review under the clearly erroneous standard is significantly
deferential, requiring a “definite and firm conviction that a mistake has been
committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (internal quotation
marks omitted). Credibility determinations are given particular deference. See
**
The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
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FED. R. CIV. P. 52(a)(6); Rozay’s Transfer v. Local Freight Drivers, 850 F.2d 1321,
1327 (9th Cir. 1988).
We accept the district court’s factual findings and credibility determination
of the Agents as not clearly erroneous. But that is not the end of the matter. We
must also determine, on de novo review, whether the Agents had reasonable
suspicion to warrant a Terry stop of the Defendants. We find that the Agents had
the required reasonable suspicion.
II. Reasonable Suspicion
Whether reasonable suspicion existed under given facts is a legal conclusion
subject to de novo review. See United States v. Arvizu, 534 U.S. 266, 275 (2002).
Each of the reasonable suspicion factors considered by the district court were
proper, and those factors, considered together, rise to the level of individualized
reasonable suspicion under the totality of the circumstances. See United States v.
Brignoni-Ponce, 422 U.S. 873, 884 (1975) (holding “officers on roving patrol may
stop vehicles only if they are aware of specific articulable facts”). As Arvizu
teaches, the possibility that the Defendants’ admitted abrupt lane changes might
have an innocent explanation does not preclude consideration of this suspicious
conduct in light of all the other factors known to the Agents and considered by the
district court. 534 U.S. at 277-78.
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Accordingly, we AFFIRM the district court’s denial of Barrera-Moreno’s
and Pacheco-Garcia’s motions to suppress.
4