United States v. Pedro Ventura Arroyo ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        JUN 14 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No.    20-50138
    Plaintiff/Appellee,              D.C. No.    3:19-cr-03026-JAH-1
    v.
    MEMORANDUM*
    PEDRO VENTURA ARROYO,
    Defendant/Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    John A. Houston, District Judge, Presiding
    Submitted June 9, 2021**
    Pasadena, California
    Before: GRABER, CALLAHAN, FORREST, Circuit Judges.
    Pedro Ventura Arroyo appeals his conviction for possessing with the intent
    to distribute methamphetamine and heroin. On appeal, he challenges the denial of
    his motion to suppress evidence seized from his person and backpack. Having
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    jurisdiction under 
    28 U.S.C. § 1291
    , we affirm.
    The officer properly stopped Arroyo because he was biking on a sidewalk in
    violation of the local municipal code. See United States v. Basher, 
    629 F.3d 1161
    ,
    1165 (9th Cir. 2011) (“An investigatory stop or encounter does not violate the
    Fourth Amendment if the officers have reasonable suspicion supported by
    articulable facts that criminal activity may be afoot.” (internal quotations and
    citation omitted)). Arroyo protests that the stop was pretextual—that the officer
    was really interested in gang and drug activity. But “[s]ubjective intentions play
    no role in ordinary . . . Fourth Amendment analysis.” Whren v. United States, 
    517 U.S. 806
    , 813 (1996). Because the officer had an objectively reasonable basis to
    stop Arroyo, any ulterior motive is irrelevant.1
    The officer also properly “frisked” Arroyo for weapons after stopping him.
    See United States v. Davis, 
    530 F.3d 1069
    , 1082–83 (9th Cir. 2008) (holding that
    weapon pat-downs are appropriate when supported by a “reasonable articulable
    suspicion” that someone is armed and dangerous). The officer knew that Arroyo
    was a member of a gang active in the area. He had also heard that Arroyo had
    been stabbed in a gang-related feud, and Arroyo had a bandaged arm, suggesting
    that he might have been armed—either to protect himself or to carry out a
    1
    Insofar as Arroyo challenges the duration of the investigatory stop, we hold
    that it was reasonable. Less than a minute elapsed between the stop and pat-down.
    2
    retributive attack. Arroyo additionally expressed frustration at having been
    stopped and was wearing loose-fitting clothes that could have concealed weapons.
    In light of these facts, the officer was reasonably concerned for his safety. Indeed,
    his concerns were well founded, as Arroyo was carrying two knives in violation of
    California law. See 
    Cal. Pen. Code § 21310
    .
    Arroyo’s possession of those knives in turn established probable cause to
    arrest him. His backpack, which contained drugs, was properly searched incident
    to that arrest. See United States v. Cook, 
    808 F.3d 1195
    , 1199 (9th Cir. 2015)
    (allowing warrantless searches of the area within an arrestee’s “immediate control”
    for the purposes of “protecting arresting officers and safeguarding . . . evidence”).
    Arroyo had told the officer that “everything” in his backpack was “illegal,” and
    that comment might have meant additional weapons. Although Arroyo was
    handcuffed, that fact alone does not render the officer’s brief and limited search
    unconstitutional. See 
    id.
     at 1199–1200. Accordingly, the district court did not err
    by denying Arroyo’s motion to suppress the evidence that served as the basis for
    his conviction.
    AFFIRMED.
    3
    

Document Info

Docket Number: 20-50138

Filed Date: 6/14/2021

Precedential Status: Non-Precedential

Modified Date: 6/14/2021