United States v. Anthony Lugo

Opinion

FILED NOT FOR PUBLICATION JUN 25 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30200

Plaintiff-Appellee, D.C. Nos. 2:19-cr-00017-DLC-1 v. 2:19-cr-00017-DLC

ANTHONY JACOB LUGO, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Argued and Submitted June 11, 2021 Seattle, Washington

Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges.

Anthony Jacob Lugo pleaded guilty to possession of marijuana and cocaine

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and possession of a

firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A). He appeals the district court’s denial of his motion to suppress the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. drugs and firearms that were found in his truck. We have jurisdiction under 28

U.S.C. § 1291. We affirm.

We review the denial of a motion to suppress de novo and review underlying

findings of fact for clear error. United States v. Vandergroen, 964 F.3d 876, 879

(9th Cir. 2020).

1. The officer’s order to step out of the vehicle and his directive to stand by

the patrol car were reasonable under the Fourth Amendment. See Pennsylvania v.

Mimms, 434 U.S. 106, 109–11 (1977) (per curiam). The officer lawfully initiated

the traffic stop because Lugo was driving erratically and changed lanes without

signaling. After “police ha[d] already lawfully decided that the driver shall be

briefly detained” in a traffic stop, the order to exit the truck was a “de minimis”

intrusion on his liberty justified to ensure officer safety. Id. at 111. Lugo had not

pulled over very far onto the shoulder, so the officer standing on the driver’s side

of the vehicle faced a “hazard of accidental injury from passing traffic.” Id.

2. Additional reasonable suspicion is required to prolong a traffic stop

“beyond the time reasonably required to complete the mission.” Rodriguez v.

United States, 575 U.S. 348, 354–55 (2015) (quoting Illinois v. Caballes, 543 U.S.

405, 407 (2005)). The officer prolonged the stop here to wait for the canine unit to

arrive. But the necessary reasonable suspicion existed because he saw and smelled

2 marijuana in the car. See Lingo v. City of Salem, 832 F.3d 953, 961 (9th Cir. 2016)

(noting that the odor of marijuana alone may establish probable cause).

3. Probable cause to seize a vehicle exists where there is “a fair probability”

drugs will be found inside. United States v. Magallon-Lopez, 817 F.3d 671, 676

(9th Cir. 2016). The fact that the officer saw and smelled marijuana in the truck

almost certainly provided probable cause. See Lingo, 832 F.3d at 961. Further, by

the time the truck was seized pending a warrant, Lugo had admitted that there was

marijuana in it.

AFFIRMED.