United States v. Paul Reid , 389 F. App'x 711 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 29 2010
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. 09-30394
Plaintiff - Appellee, D.C. No. 3:09-cr-05141-BHS-1
v.
MEMORANDUM *
PAUL REID,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted July 14, 2010
Seattle, Washington
Before: RYMER and N.R. SMITH, Circuit Judges, and HART, District Judge.**
Defendant Paul Reid was arrested for being in a training area of a military
installation without permission in violation of 18 U.S.C. § 1382. In a search
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William Hart, United States District Judge for the
Northern District of Illinois, sitting by designation.
incident to the arrest, defendant was found in possession of marijuana,
methamphetamine, and drug paraphernalia. Defendant moved to suppress the
evidence as the fruits of an unconstitutional search on the ground that probable
cause did not exist to arrest him. The motion to suppress was denied and defendant
thereafter conditionally pleaded guilty to one count each of possessing marijuana
and methamphetamine. He was sentenced to 18 months' probation. We affirm the
district court's denial of Reid's motion to suppress.
On appeal, the only issue is whether there was probable cause to arrest
defendant for violating § 1382. The existence of probable cause for an arrest or
search is reviewed de novo. United States v. Struckman, 603 F.3d 731, 738-39 (9th
Cir. 2010); United States v. Franklin, 603 F.3d 652, 655 (9th Cir. 2010); United
States v. Dorsey, 418 F.3d 1038, 1042 (9th Cir. 2005). Underlying factual findings
are reviewed for clear error. Franklin, 603 F.3d at 655; Dorsey, 418 F.3d at 1042.
"Probable cause to arrest exists when officers have knowledge or reasonably
trustworthy information sufficient to lead a person of reasonable caution to believe
an offense has been or is being committed by the person being arrested." John v.
City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008) (quoting United States v.
Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)). The totality of the circumstances
known to the arresting officer are examined in order to determine whether a
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prudent person would conclude a fair probability existed that a crime had been
committed. John, 515 F.3d at 940 (quoting United States v. Smith, 790 F.2d 789,
792 (9th Cir. 1986)). "Although conclusive evidence of guilt is not necessary to
establish probable cause, 'mere suspicion, common rumor, or even strong reason to
suspect are not enough.'" Edgerly v. City & County of San Francisco, 599 F.3d
946, 953 (9th Cir. 2010) (quoting Lopez, 482 F.3d at 1072 (quoting McKenzie v.
Lamb, 738 F.3d 1005, 1008 (9th Cir. 1984))). Generally, there need not be
probable cause for every element of the offense. Edgerly, 599 F.3d at 953. When
specific intent is an element of the offense, the arresting officer must have probable
cause for that element. Id. A § 1382 offense, however, is not a specific intent
crime. United States v. Mowat, 582 F.2d 1194, 1203-04 (9th Cir. 1978); United
States v. Vasarajs, 908 F.2d 443, 447 n.7 (9th Cir. 1990).
Section 1382 provides in part: "Whoever, within the jurisdiction of the
United States, goes upon any military . . . reservation, post, fort, arsenal, yard,
station, or installation, for any purpose prohibited by law or lawful regulation . . .
[s]hall be fined under this title or imprisoned not more than six months, or both."
It is well-settled that the prohibited purpose may be the illegal entry itself. United
States v. Hall, 742 F.2d 1153, 1154-55 (9th Cir. 1984); United States v. Cottier,
759 F.2d 760, 762 (9th Cir. 1985). When the basis of the violation is the entry
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itself, an essential element is actual knowledge or sufficient notice that the area is
restricted military property. See Cottier, 759 F.2d at 762; Hall, 742 F.2d at 1155.1
At the time of defendant's arrest, the arresting officer was aware of the
following facts. The officer came upon defendant in a wooded, training area of
Fort Lewis. Defendant was in his car traveling in reverse on a dirt road that
connected two public highways. Defendant was a short distance from a sign
showing he was in an unauthorized area. If he had entered this dirt road from the
side with the sign, then he certainly would have been on notice; but if he had
entered from the other side, he would not have come upon the sign until he reached
the opposite side. The car did not have any decal, pass, or other marking
identifying it as authorized to be on the grounds of Fort Lewis. When asked if he
had any military or authorized purpose to be at Fort Lewis, defendant responded:
"I don't have any military affiliation or Fort Lewis training area access pass." On
these facts, a reasonable and prudent person could conclude there was a fair
probability that defendant was in a prohibited military area with sufficient notice or
1
At oral argument, the government noted that a § 1382 violation could be
based on a prohibited purpose other than the entry itself which would not require
knowledge, but the government has not identified any other prohibited purpose.
On the arguments presented, the only basis for probable cause that is before the
court is an illegal entry in violation of § 1382.
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knowledge that it was a prohibited area. Therefore, probable cause existed for the
arrest and there is no basis for overturning defendant's conviction.
AFFIRMED.
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