United States v. Brian Lee

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 4, 2023
• Docket: 22-50078
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2023

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 22-50078 Plaintiff-Appellee, D.C. No. 2:19-cr-00496-AB-1 v. MEMORANDUM* BRIAN LEE, Defendant-Appellant.

Appeal from the United States District Court for the Central District of California André Birotte, Jr., District Judge, Presiding Argued and Submitted October 17, 2023 Pasadena, California

Before: TASHIMA, COLLINS, and SANCHEZ, Circuit Judges.

Following his conditional plea of guilty to a single charge of being a felon in

possession of ammunition in violation of 18 U.S.C. § 922(g)(1), Defendant-

Appellant Brian Lee appeals the district court’s denial of his motion to suppress

evidence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Reviewing de novo, see United States v. Smith, 389 F.3d 944, 950 (9th Cir.

2004), we hold that the district court properly concluded that the police officers

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. who seized Lee had probable cause to arrest him for the offense of drinking

alcohol in public in violation of Los Angeles Municipal Code § 41.27(c).

A warrantless arrest is permitted under the Fourth Amendment “when an

officer has probable cause to believe a person committed even a minor crime in his

presence,” Virginia v. Moore, 553 U.S. 164, 171 (2008), and the fact that state law

might forbid an arrest for that particular offense “do[es] not alter the Fourth

Amendment’s protections,” id. at 176. Probable cause exists “if, under the totality

of the facts and circumstances known to the arresting officer, a prudent person

would have concluded that there was a fair probability that the suspect had

committed a crime.” United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir.

1984). Here, the police officers who seized Lee had knowledge of facts and

circumstances that objectively established the requisite “fair probability” that Lee

had been drinking alcohol on a public street. Id. While patrolling in a vehicle, the

officers observed Lee standing on a public sidewalk and drinking from “a dark

glass bottle with a long neck that appeared to be a beer bottle.” When the officers

drove closer, they recognized the bottle as a “Pacifico beer bottle.” Although Lee

suggests that the officers at that point had not excluded the possibility that the

Pacifico-labeled beer-style bottle actually contained a non-alcoholic beer or some

other non-alcoholic beverage, the officers did not need to establish such certitude

before effectuating an arrest. “[P]robable cause requires only a probability or

2 substantial chance of criminal activity, not an actual showing of such activity.”

Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983); see also United States v. Potter,

895 F.2d 1231, 1234 n.1 (9th Cir. 1990) (rejecting similar claim that officer

“should have tested the powder to make sure it was methamphetamine before

arresting him”).

Because the officers had probable cause to arrest Lee, none of the evidence

obtained as a result of that search was subject to suppression. See Smith, 389 F.3d

at 950–51 (holding that officers may “conduct a warrantless search of a person

who is arrested, and of his surrounding area, when the search is incident to the

arrest”).1

Accordingly, we affirm the district court’s decision denying Lee’s motion to

suppress.

AFFIRMED.

1 We therefore have no occasion to address whether the district court was correct in its alternative conclusion that the initial seizure of Lee could be justified as an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968). Likewise, because we conclude that probable cause was established based on the facts that we have recounted, we need not address Lee’s contention that the district court improperly considered certain additional facts as contributing to the existence of probable cause.