Opinion
No. 17-50136
03-18-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JULIO CESAR ALVARADO, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 8:16-cr-00085-DMG-1 MEMORANDUM Appeal from the United States District Court for the Central District of California
Dolly M. Gee, District Judge, Presiding Argued and Submitted March 7, 2019 Pasadena, California Before: WARDLAW and BENNETT, Circuit Judges, and CARDONE, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation.
Julio Cesar Alvarado appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He contends that the district court erroneously denied his motion to suppress the firearm found in his Acura because the police initiated an investigatory stop without reasonable suspicion before searching his vehicle. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court properly concluded that Santa Ana Police Department Officers Gerardo Raya and John Pace seized Alvarado when they simultaneously parked their marked patrol cars perpendicular to the Acura he occupied and shone their spotlights into the car. See United States v. Washington, 490 F.3d 765, 769-70 (9th Cir. 2007). Under the totality of the circumstances, a reasonable person would not have felt at liberty to terminate the encounter and leave after the officers parked their patrol cars in this manner. See id. at 771-74. Moreover, the position of the officers' parked patrol cars in the cul-de-sac, and the use of their spotlights, which would affect Alvarado's vision, likely restricted Alvarado's ability to leave. See id. at 773. The encounter took place late at night in an isolated residential setting, and neither officer informed Alvarado of his right to terminate the encounter. See id. at 772. While the government points out that the officers did not brandish any weapons and did not outnumber Alvarado and his passenger, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980).
Alvarado's request for judicial notice is GRANTED. (Dkt. No. 23).
2. The district court correctly concluded that the officers had reasonable suspicion to conduct an investigatory stop when they seized Alvarado. See United States v. Valdes-Vega, 738 F.3d 1074, 1078-79 (9th Cir. 2013). The officers had reasonable suspicion that Alvarado was committing an ongoing parking violation based on a tip demonstrating "sufficient indicia of reliability." Navarette v. California, 572 U.S. 393, 397-401 (2014) (citation omitted); see United States v. Choudhry, 461 F.3d 1097, 1101-02 (9th Cir. 2006) (reasonable suspicion of a parking violation under California's civil-administrative enforcement scheme is sufficient to justify an investigative stop). The tipster provided his name and phone number to the dispatcher, and reported a suspicious vehicle—a green Honda Accord—in a residential cul-de-sac. When the officers arrived at the specified location, they found a car closely matching the description and location provided by the tipster, parked adjacent to a narrow length of curb between two driveways. The tipster also provided specific allegations of ongoing, observable criminal activity—that the car was parked in a red zone. The officers were not required to corroborate that there was an ongoing parking violation before conducting the investigatory stop. See United States v. Williams, 846 F.3d 303, 309-10 (9th Cir. 2016) (concluding there was reasonable suspicion because the officers were able to verify a tip regarding the make, model, and location of a car, even though they did not verify the allegations of ongoing, observable criminal activity prior to the stop).
AFFIRMED.