NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 9 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30087
Plaintiff-Appellee, D.C. No. 4:16-cr-00009-RRB-1 v.
BOBBY DEWAYNE THOMPSON II, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding
Argued and Submitted June 13, 2018 Anchorage, Alaska
Before: THOMAS, Chief Judge, and CALLAHAN and BEA, Circuit Judges.
Appellant Bobby Dewayne Thompson, II (“Thompson”) appeals his federal
jury conviction for one count of illegally possessing a firearm and his 110-month
sentence. Thompson contends that the initial detention of the car in which he was
traveling and the second pat-down search yielding his identification card
contravened his Fourth Amendment rights against unreasonable searches and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. seizures. Thompson argues that the district court erred in denying his motion to
suppress evidence obtained from a search of his cell phone. Thompson further
argues that there was a fatal variance between the facts stated in his indictment and
the evidence the Government proffered at trial. Finally, Thompson argues that his
sentence was substantively unreasonable because it was greater than necessary to
satisfy 18 U.S.C. § 3553(a)’s sentencing objectives. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.1
1. Constitutionality of Thompson’s Detention: We review the district
court’s denial of the motion to suppress de novo, and we review for clear error a
district court’s factual findings. United States v. Fernandez-Castillo, 324 F.3d
1114, 1117 (9th Cir. 2003). Once the police officer stopped the car for speeding
and for missing a front license plate, he was entitled to ask the car occupants for
their names and to check their identifications. See Hiibel v. Sixth Judicial Dist. Ct.
of Nev., Humboldt Cnty., 542 U.S. 177, 185 (2004). The 25-minute detention of
Thompson was permissible because: (1) the length of the detention was directly
attributable to Thompson’s repeated lies about who he was; (2) the lies reasonably
raised suspicion about Thompson’s activities; and (3) the police needed to know
Thompson’s identity before issuing him a citation. See District of Columbia v.
1 As the parties are familiar with the facts and procedural history, we restate them only as necessary to explain our decision.
2 Wesby, 138 S.Ct. 577, 587 (2018); Devenpeck v. Alford, 543 U.S. 146, 149, 155–
56 (2004). Therefore, the detention did not violate Thompson’s rights under the
Fourth Amendment.
2. Constitutionality of the Second Pat-Down Search and the
Admissibility of Derivative Evidence: As noted, we review the district court’s
denial of the motion to suppress de novo, and we review for clear error a district
court’s factual findings. Fernandez-Castillo, 324 F.3d at 1117. We review a
district court’s inevitable-discovery ruling for clear error. United States v. Lundin,
817 F.3d 1151, 1157 (9th Cir. 2016). Thompson’s second pat-down search
occurred after the police had decided to detain him because he had thrice lied about
his identity. A lawful arrest justifies a full search of the person. Birchfield v.
North Dakota, 136 S.Ct. 2160, 2176 (2016). Here, the search was consistent with
the troopers’ physical-safety concerns and their need to ascertain Thompson’s
identity. Id.
In any event, had the police taken Thompson straight to a detention facility
without first patting him down, his identity would have been discovered at the
facility. Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S.
318, 330 (2012) (upholding, in the detention-facility setting, “more invasive search
procedures at issue absent reasonable suspicion of a concealed weapon or other
contraband”). As a result, the derivative evidence would still be admissible under
3 the “inevitable discovery” exception to the exclusionary rule. Utah v. Strieff, 136
S.Ct. 2056, 2061 (2016). Consequently, Thompson’s second-pat down search did
not violate his Fourth Amendment rights.
3. Constitutionality of the Search Warrants and the Admissibility of
the Evidence Obtained from Thompson’s Cell Phone: We review de novo a
district court’s denial of a motion to suppress evidence, including the application of
the “good faith” exception to the exclusionary rule. United States v. Needham, 718
F.3d 1190, 1193 (9th Cir. 2013). We review for clear error a state court judge’s
finding of probable cause to issue a search warrant and give “great deference” to
such findings. United States v. Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011).
Here, Officer Curtis Vik’s (“Vik”) first warrant application sought to search
Thompson’s property at the detention facility. It was based on these facts: (1)
Thompson had a prior federal felony conviction for selling cocaine and two Alaska
felony convictions for Assault and Dangerous Drugs, respectively; (2) cocaine and
a large wad of cash totaling almost $800 were found on Thompson’s person; (3)
the pistol was discovered under his car seat; (4) Thompson had lied about his
identity; (5) Thompson had four outstanding Anchorage Police Department
warrants; (6) Thompson was out of custody on conditions of release; and (7) Vik
asserted that the firearm was used to protect Thompson’s cocaine and illegal
dealings and that drug dealers frequently conduct their illicit transactions via cell
4 phones. Vik’s second warrant application sought to examine the contents of
Thompson’s phone and explained why Thompson’s phone might contain evidence
of his crimes.
Even if there were some question as to whether the search warrants
comported with the Fourth Amendment, the evidence remained admissible under
the “good faith” exception to the exclusionary rule. See United States v. Leon, 468
U.S. 897, 900, 918–25 (1984). Vik acted in objectively reasonable reliance on the
warrants issued by the magistrate. Id. at 922. Accordingly, the evidence elicited
from Thompson’s cell phone was admissible.
4. Fatal Variance: “Fatal variance” claims derive from an accused’s
“Fifth Amendment right to stand trial only on charges made by a grand jury in its
indictment.” United States v. Garcia-Paz, 282 F.3d 1212, 1215 (9th Cir. 2002),
cert. denied, 537 U.S. 938 (2002). We review de novo a claim that there was a
fatal variance between the proof at trial and the facts alleged in the indictment.
United States v. Doss, 630 F.3d 1181, 1191 (9th Cir. 2011). However, when a
defendant does not object in the trial court that a jury instruction is a variance, we
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 9 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30087
Plaintiff-Appellee, D.C. No. 4:16-cr-00009-RRB-1 v.
BOBBY DEWAYNE THOMPSON II, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding
Argued and Submitted June 13, 2018 Anchorage, Alaska
Before: THOMAS, Chief Judge, and CALLAHAN and BEA, Circuit Judges.
Appellant Bobby Dewayne Thompson, II (“Thompson”) appeals his federal
jury conviction for one count of illegally possessing a firearm and his 110-month
sentence. Thompson contends that the initial detention of the car in which he was
traveling and the second pat-down search yielding his identification card
contravened his Fourth Amendment rights against unreasonable searches and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. seizures. Thompson argues that the district court erred in denying his motion to
suppress evidence obtained from a search of his cell phone. Thompson further
argues that there was a fatal variance between the facts stated in his indictment and
the evidence the Government proffered at trial. Finally, Thompson argues that his
sentence was substantively unreasonable because it was greater than necessary to
satisfy 18 U.S.C. § 3553(a)’s sentencing objectives. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.1
1. Constitutionality of Thompson’s Detention: We review the district
court’s denial of the motion to suppress de novo, and we review for clear error a
district court’s factual findings. United States v. Fernandez-Castillo, 324 F.3d
1114, 1117 (9th Cir. 2003). Once the police officer stopped the car for speeding
and for missing a front license plate, he was entitled to ask the car occupants for
their names and to check their identifications. See Hiibel v. Sixth Judicial Dist. Ct.
of Nev., Humboldt Cnty., 542 U.S. 177, 185 (2004). The 25-minute detention of
Thompson was permissible because: (1) the length of the detention was directly
attributable to Thompson’s repeated lies about who he was; (2) the lies reasonably
raised suspicion about Thompson’s activities; and (3) the police needed to know
Thompson’s identity before issuing him a citation. See District of Columbia v.
1 As the parties are familiar with the facts and procedural history, we restate them only as necessary to explain our decision.
2 Wesby, 138 S.Ct. 577, 587 (2018); Devenpeck v. Alford, 543 U.S. 146, 149, 155–
56 (2004). Therefore, the detention did not violate Thompson’s rights under the
Fourth Amendment.
2. Constitutionality of the Second Pat-Down Search and the
Admissibility of Derivative Evidence: As noted, we review the district court’s
denial of the motion to suppress de novo, and we review for clear error a district
court’s factual findings. Fernandez-Castillo, 324 F.3d at 1117. We review a
district court’s inevitable-discovery ruling for clear error. United States v. Lundin,
817 F.3d 1151, 1157 (9th Cir. 2016). Thompson’s second pat-down search
occurred after the police had decided to detain him because he had thrice lied about
his identity. A lawful arrest justifies a full search of the person. Birchfield v.
North Dakota, 136 S.Ct. 2160, 2176 (2016). Here, the search was consistent with
the troopers’ physical-safety concerns and their need to ascertain Thompson’s
identity. Id.
In any event, had the police taken Thompson straight to a detention facility
without first patting him down, his identity would have been discovered at the
facility. Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S.
318, 330 (2012) (upholding, in the detention-facility setting, “more invasive search
procedures at issue absent reasonable suspicion of a concealed weapon or other
contraband”). As a result, the derivative evidence would still be admissible under
3 the “inevitable discovery” exception to the exclusionary rule. Utah v. Strieff, 136
S.Ct. 2056, 2061 (2016). Consequently, Thompson’s second-pat down search did
not violate his Fourth Amendment rights.
3. Constitutionality of the Search Warrants and the Admissibility of
the Evidence Obtained from Thompson’s Cell Phone: We review de novo a
district court’s denial of a motion to suppress evidence, including the application of
the “good faith” exception to the exclusionary rule. United States v. Needham, 718
F.3d 1190, 1193 (9th Cir. 2013). We review for clear error a state court judge’s
finding of probable cause to issue a search warrant and give “great deference” to
such findings. United States v. Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011).
Here, Officer Curtis Vik’s (“Vik”) first warrant application sought to search
Thompson’s property at the detention facility. It was based on these facts: (1)
Thompson had a prior federal felony conviction for selling cocaine and two Alaska
felony convictions for Assault and Dangerous Drugs, respectively; (2) cocaine and
a large wad of cash totaling almost $800 were found on Thompson’s person; (3)
the pistol was discovered under his car seat; (4) Thompson had lied about his
identity; (5) Thompson had four outstanding Anchorage Police Department
warrants; (6) Thompson was out of custody on conditions of release; and (7) Vik
asserted that the firearm was used to protect Thompson’s cocaine and illegal
dealings and that drug dealers frequently conduct their illicit transactions via cell
4 phones. Vik’s second warrant application sought to examine the contents of
Thompson’s phone and explained why Thompson’s phone might contain evidence
of his crimes.
Even if there were some question as to whether the search warrants
comported with the Fourth Amendment, the evidence remained admissible under
the “good faith” exception to the exclusionary rule. See United States v. Leon, 468
U.S. 897, 900, 918–25 (1984). Vik acted in objectively reasonable reliance on the
warrants issued by the magistrate. Id. at 922. Accordingly, the evidence elicited
from Thompson’s cell phone was admissible.
4. Fatal Variance: “Fatal variance” claims derive from an accused’s
“Fifth Amendment right to stand trial only on charges made by a grand jury in its
indictment.” United States v. Garcia-Paz, 282 F.3d 1212, 1215 (9th Cir. 2002),
cert. denied, 537 U.S. 938 (2002). We review de novo a claim that there was a
fatal variance between the proof at trial and the facts alleged in the indictment.
United States v. Doss, 630 F.3d 1181, 1191 (9th Cir. 2011). However, when a
defendant does not object in the trial court that a jury instruction is a variance, we
review a variance claim only for plain error. United States v. Choy, 309 F.3d 602,
607 (9th Cir. 2002).
Here, because Thompson did not clearly preserve the issue in the district
court, we review his claim for plain error. Puckett v. United States, 556 U.S. 129,
5 135 (2009). He now contends that he was effectively convicted for possession of
the gun on March 20, not March 22, because the cell phone photos of him with the
gun were taken on March 20. However, at trial, the prosecution focused on March
22. The Government offered the March 20 photographs as supporting evidence
that Thompson possessed the pistol on March 22, and there was overwhelming
evidence that Thompson did possess the pistol on March 22 because an officer
testified that the pistol was discovered under Thompson’s car seat on March 22. In
addition, the district judge instructed the jury to reach its verdict based only on the
evidence presented. Consequently, Thompson has not demonstrated that he was
convicted of possession of the pistol on March 20 rather than on March 22.
5. Substantive Unreasonableness of Thompson’s Sentence:
Thompson’s Sentencing Memorandum raised the substantive-unreasonableness
issue in the district court. We review a substantive unreasonableness claim for
abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc). We ask whether a sentence was substantively unreasonable, based on “the
totality of the circumstances, including the degree of variance for a sentence
imposed outside the Guidelines range.” Id.; see also Gall v. United States, 552
U.S. 38, 51 (2007). We “may not presume that a non-Guidelines sentence is
unreasonable.” Carty, 520 F.3d at 993.
Here, Thompson’s 110-month sentence was the minimum suggested by the
6 United States Sentencing Guidelines. Thompson was no youthful offender; he was
43 years old at the time of sentencing. There was evidence at trial that Thompson
had: (1) used the pistol to facilitate drug sales; (2) disregarded court-ordered
probation conditions; and (3) lied to the officers. In addition, Thompson’s
extensive criminal history included eight assaults, three failures to appear, and a
federal drug trafficking offense for which he was sentenced to 120 months of
incarceration. Also, there was evidence that Thompson was a “self-appointed
leader” of the Mountain View Crips gang. Therefore, Thompson has not
demonstrated that his sentence was substantively unreasonable.
Thompson’s conviction and sentence are AFFIRMED.