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United States v. Bernal

United States District Court, Ninth Circuit

June 7, 2013

United States of America, Plaintiff,
v.
Richard D. Bernal, Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

Defendant Richard D. Bernal has filed a Motion to Suppress Evidence. Doc. 36. The motion is fully briefed, and the Court held an evidentiary hearing on May 30, 2013. For reasons that follow, the Court will deny the motion.

I. Background.

Defendant argues that Phoenix Police Department Officer Travis Morrison detained Defendant without reasonable suspicion and thereby violated Defendant's Fourth Amendment rights. Defendant asks the Court to suppress all evidence resulting from this alleged constitutional violation, including a firearm and ammunition found at the scene and statements Defendant made to police officers.

The following facts are based on testimony and exhibits provided at the evidentiary hearing, including the Court's credibility determinations. Shortly after 2 a.m. on March 1, 2010, a man who identified himself as Thomas placed an emergency 911 phone call and reported a possible hit-and-run accident at the end of the exit ramp at Interstate 10 and North 51st Avenue. The caller said that a two-tone SUV was traveling at least 50 miles an hour and "almost flipped over" when it hit a curb. The caller noted that the SUV might be fleeing a police helicopter in the area.

As a result of this report, a Phoenix police dispatcher issued a "961-Henry" call to officers in the area. 961-Henry indicates a possible hit-and-run accident. The dispatcher reported that the caller thought the SUV was trying to get away from a DPS helicopter. Officer Morrison responded to the dispatch call and located an SUV that matched the 911 caller's description parked in the center of the west bound lane of West Willetta Street, about one-quarter mile from the exit ramp where the collision was reported to have occurred.[1]

Officer Morrison pulled up behind the SUV and activated his overhead lights as a safety precaution. The SUV had two flat tires on the driver's side, and Office Morrison observed three men attempting to change one of the tires. Officer Morrison exited his vehicle and asked the men if they were involved in an accident. One of the men said no. Officer Morrison testified that the men seemed surprised to see him and tried to ignore him as they continued to work on the tire. Officer Morrison asked who had been driving the car, and all three men denied being the driver. Suspecting the men of making false statements and noting that at least one of the men appeared to be intoxicated, Officer Morrison began to investigate further. He patted down Defendant, who was standing closest to him and wearing a bulky overcoat, but did not find any weapons. Officer Morrison then directed Defendant to sit on the curb. There is disagreement as to whether Officer Morrison handcuffed Defendant at this point or later, and Officer Morrison has given conflicting accounts on that fact. The Court will assume for purposes of this motion that Defendant was handcuffed when he was placed on the curb. The Court concludes that the investigatory detention of Defendant began when he was patted down and placed on the curb. Officer Morrison patted down the other two men, sat one of them on the curb, and had another move some distance away.

After Defendant had been seated on the curb, he reached into his pocket, removed something, and threw it behind him. Officer Ritchey, who had arrived at the scene and was assisting Officer Morrison, observed and reported this action. Officer Morrison looked behind Defendant and found a loaded hand gun. At this point, Defendant said to Officer Morrison: "I should have told you about the gun. I didn't mean to give you any trouble, man." Defendant was arrested and taken to the police station, where he told an officer "I shouldn't have been carrying that gun, I know I shouldn't have, I'm sorry."

II. Legal Standard.

An investigatory stop does not violate the Fourth Amendment "if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot." United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotations and citations omitted). The Court must look at the "totality of the circumstances" to determine whether the officer has an objective basis for suspecting wrongdoing. Id at 273. "All relevant factors must be considered in the reasonable suspicion calculus - even those factors that, in a different context, might be entirely innocuous." Id. at 277-78. A suspicion must be "objectively reasonable" - "the officers' subjective motivation is irrelevant." Brigham City, Utah v. Stuart, 547 U.S. 398 (2006). "Although an officer's reliance on a mere hunch' is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." Arvizu, 534 U.S. at 274.

III. Discussion.

The Court finds that Officer Morrison had sufficient reasonable suspicion to detain Defendant while conducting an investigation of the events that had occurred. This conclusion is based on a number of facts.

For several reasons, the 911 call was sufficiently reliable to provide a reasonable basis for suspicion. First, the call described the SUV in detail - sufficient detail for Officer Morrison to identify the vehicle when he saw it. See United States v. Fernandez-Castillo, 324 F.3d 1114, 1119 (9th Cir. 2003) (report credible when it described the suspect's car in detail). Second, the call accurately described the location of the reported events. Officer Morrison found the SUV approximately one-quarter mile from the scene identified by the caller, just west of North 51st Avenue. Id. (report credible when it accurately described location of the vehicle). Third, the condition of the SUV was consistent with the caller's report that it hit a median at a high rate of speed and almost flipped over. The SUV had two flat tires on the driver's side. Fourth, the 911 caller gave his first name, location, and phone number to the dispatcher. This information would have rendered the caller accountable if he had fabricated the story, adding to the credibility of his report. Id. at 1118 (anonymous call, with no identifying information of the caller, less reliable because the tipster cannot be held accountable for fabrications).

Several other facts add to the Court's finding of an objective basis for reasonable suspicion. The 911 call was received shortly after 2 a.m., the hour when local bars close. In Officer Morrison's experience, drivers at that hour often are intoxicated. Upon first arriving, Officer Morrison ...


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