Ruth Shuey v. Michael Astrue ( 2012 )

FILED
NOT FOR PUBLICATION MAY 07 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10258
Plaintiff - Appellee, D.C. No. 3:10-cr-00348-MHP-1
v.
ORDER AND MEMORANDUM *
CARLOS ASPRILLA,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted March 14, 2012
San Francisco, California
Before: CALLAHAN and BEA, Circuit Judges, and BENNETT, District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for Northern Iowa, sitting by designation.
The memorandum filed on March 27, 2012 is WITHDRAWN.1 The
memorandum below is filed to replace it:
Carlos Asprilla appeals the district court’s denial of his motion for
suppression of evidence and his subsequent conviction, after a bench trial, for
having violated 18 U.S.C. § 922(g)(1), which prohibits felons’ possession of
firearms. The parties are familiar with the facts underlying the appeal and thus we
do not include them save as necessary.
Asprilla argues that the search of his person pursuant to a warrantless search
condition imposed pursuant to his probation agreement, which led to the discovery
of a gun in Asprilla’s waistband and a magazine in his jacket pocket, violated the
Fourth Amendment. He also argues that the subsequent search of his girlfriend’s
apartment, which uncovered another magazine, violated the Fourth Amendment.
Whether or not reasonable suspicion is required to search a probationer
subject to a warrantless search condition, the search of Asprilla’s person did not
violate the Fourth Amendment as the police had reasonable suspicion to search
Asprilla’s person. United States v. Knights, 534 U.S. 112, 121 (2001). The police
had an anonymous tip that, inter alia, Asprilla lived at his girlfriend’s apartment on
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The petition for rehearing en banc filed by Asprilla is hereby denied as
moot. The parties may file a new petition for rehearing or for rehearing en banc
based on the replacement disposition.
2
Ingalls Street, that Asprilla and his girlfriend owned certain cars, and that Asprilla
had a gun. Police investigation corroborated the tip’s statements about where
Asprilla lived and what cars he and his girlfriend drove. The police saw Asprilla
driving a car registered to the owner of the Ingalls Street apartment and watched
him park it at the apartment. The police also saw a car registered to Asprilla
parked at that apartment. The description of the cars matched the description given
in the tip. The fact that this tip was otherwise corroborated contributed to
reasonable suspicion. United States v. Alvarez, 899 F.2d 833, 837 (9th Cir. 1990).
The police also knew Asprilla was affiliated with a gang. Finally, when the police
approached Asprilla, he turned and walked quickly in the other direction. See
United States v. Santamaria-Hernandez, 968 F.2d 980, 983 (9th Cir. 1992). These
facts in combination were sufficient to rise to the level of reasonable suspicion that
Asprilla had a gun.
In addition, the search of his girlfriend’s apartment did not violate the Fourth
Amendment because there was probable cause to believe that Asprilla resided
there. United States v. Howard, 447 F.3d 1257, 1262 (9th Cir. 2006). The
anonymous tip had specified that Asprilla lived at his girlfriend’s apartment on
Ingalls Street in an apartment matching the location of a parking lot near the
apartment and a description of the apartment searched. As discussed above, this
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tip had been largely corroborated. Further, by the time the police searched the
apartment, the tip had been further corroborated by the fact that, as the tipster said,
Asprilla did have a gun on his person. In addition, the police twice saw Asprilla at
the apartment and, on the second occasion, saw him open the door to a friend and
remain inside some time. The police also saw that Asprilla had a set of keys to the
apartment and watched Asprilla use the keys to open the apartment door. See
United States v. Harper, 928 F.2d 894, 896–97 (9th Cir. 1991).
Because there was reasonable suspicion to search Asprilla’s person and
because probable cause existed that he was residing at his girlfriend’s Ingalls Street
apartment, we need not consider whether the search was alternately justified by
exigent circumstances.
AFFIRMED.
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