United States v. Candelario Jimenez

FILED
NOT FOR PUBLICATION AUG 06 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30286
Plaintiff - Appellee, D.C. No. 2:11-cr-02109-FVS-1
v.
MEMORANDUM*
CANDELARIO HERNANDEZ
JIMENEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Argued and Submitted July 9, 2013
Seattle, Washington
Before: M. SMITH and N.R. SMITH, Circuit Judges, and WALTER, Senior
District Judge.**
Defendant-Appellant Candelario Hernandez Jimenez challenges the denial
of his motion to suppress two firearms that the Yakima Police Department
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
(“YPD”) officers found tucked inside the waistband of his pants while conducting
a Terry frisk. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Jimenez argues that YPD officers Saldana and Johnson did not have
reasonable suspicion to conduct a Terry stop and frisk, based on the information
conveyed to them by the 911 dispatcher, because that information was too
unreliable. “Reasonable suspicion requires ‘specific, articulable facts’ which,
together with ‘objective and reasonable’ inferences, form a basis for suspecting
that a particular person is engaged in criminal conduct.” United States v. Thomas,
211 F.3d 1186, 1189 (9th Cir. 2000) (quoting United States v.
Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989)). To determine whether
the officers had sufficient, reliable information on which to formulate reasonable
suspicion, we analyze the totality of the circumstances, including the “quality” and
the “quantity” of the information. See United States v. Rowland, 464 F.3d 899,
907 (9th Cir. 2006).
Jimenez argues that the information the police officers received was not
reliable because it came from an anonymous 911 caller. However, “911 call[s]
[are] entitled to greater reliability than a tip concerning general criminality because
the police must be able to take seriously, and respond promptly to, emergency 911
calls.” United States v. Terry-Crespo, 356 F.3d 1170, 1172 (9th Cir. 2004).
-2-
Additionally, the reporting party was not “anonymous” in the sense that it would
have been impossible to discover his identity. Rather, he gave the dispatcher both
the name and street address of his apartment complex. These facts enhanced the
reliability of the information the caller conveyed, because they narrowed the class
of potential informants. See United States v. Fernandez-Castillo, 324 F.3d 1114,
1117–18 (9th Cir. 2003).
Finally, the reporting party provided detailed and explicit information as
events were unfolding. See Illinois v. Gates, 462 U.S. 213, 234 (1983); see also
United States v. Morales, 252 F.3d 1070, 1076 (9th Cir. 2001). When the officers
arrived at the apartment complex the caller identified, their observations
corroborated many significant pieces of this information, including Jimenez’s
clothing; the make, model, and color of his vehicle; and his physical location. The
officers also called Jimenez by the name that the caller had given them (“Alex”).
Although Jimenez failed to comply with the officers’ commands, he gave the
officers no reason to believe that “Alex” was not his name or that he was not the
person for whom they were looking. Under the totality of the circumstances, the
officers possessed sufficiently reliable information to form the basis for reasonable
suspicion.
-3-
2. Jimenez further argues that the officers used an unreasonable amount of
force to subdue him, which converted the Terry stop into an arrest. He argues that
the arrest was not supported by probable cause and was therefore unconstitutional,
requiring suppression of the firearms discovered following the alleged arrest. “In
determining whether the use of intrusive techniques turns a stop into an arrest, we
examine the reasonableness of the police conduct in light of a number of factors.”
Washington v. Lambert, 98 F.3d 1181, 1189 (9th Cir. 1996). Here, the officers had
information that Jimenez was intoxicated, potentially armed, and had just been
involved in a domestic violence incident. See id. at 1189 (permitting “intrusive
means of effecting a stop . . . where,” among other things, “police have information
that the suspect is currently armed” and “the stop closely follows a violent crime”).
On scene, Jimenez refused to comply with Johnson’s and Saldana’s repeated orders
to put his hands on his car. Id. (same where “the suspect is uncooperative”).
Finally, after he was on the ground, Jimenez continued to actively resist the
officers. Under these circumstances, the officers used a reasonable amount of
force to subdue Jimenez, which did not convert the valid Terry stop into an arrest.
AFFIRMED.
-4-