United States v. Darrell Luckett, Jr.

Opinion

FILED NOT FOR PUBLICATION JUL 06 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10178

Plaintiff-Appellee, D.C. No. 3:16-cr-00200-WHO-1 v.

DARRELL LUCKETT, Jr., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding

Submitted June 14, 2018** San Francisco, California

Before: SCHROEDER and GOULD, Circuit Judges, and DU,*** District Judge.

Defendant-Appellant Darrell Luckett, Jr., appeals the denial of his motion to

suppress evidence discovered during a search and seizure on a public street in San

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Miranda M. Du, United States District Judge for the District of Nevada, sitting by designation. Francisco, alleging that he was stopped without reasonable suspicion of criminal

activity in violation of the Fourth Amendment. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

Courts “must look at the ‘totality of the circumstances’ of each case to see

whether the detaining officer has a ‘particularized and objective basis’ for suspecting

legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United

States v. Cortez, 449 U.S. 411, 417–18 (1981)). Even though a particular observation

may have an innocuous explanation when viewed in isolation, or may be less

probative than other observations, the reasonable suspicion evaluation “cannot be

done in the abstract by divorcing factors from their context in the stop at issue.”

United States v. Valdes-Vega, 738 F.3d 1074, 1078–79 (9th Cir. 2013) (en banc).

Furthermore, while rulings on motions to suppress and whether reasonable

suspicion existed are subject to de novo review, “a reviewing court should take care

both to review findings of historical fact only for clear error and to give due weight

to inferences drawn from those facts by resident judges and local law enforcement

officers.” Ornelas v. United States, 517 U.S. 690, 699 (1996). As a result, the de novo

review is peculiar and “slightly more circumscribed than usual” in light of the

deference to those inferences. Valdes-Vega, 738 F.3d at 1077.

The district court found the officers in this case had reasonable suspicion that

2 Luckett was engaged in criminal activity based on the confluence of three factors: (1)

Luckett’s presence in a high-crime area; (2) one of the officer’s knowledge of

Luckett’s criminal history; and (3) Luckett’s nervous and evasive behavior.

Regarding the first factor, the district court’s finding that the area was high-

crime constitutes a finding of fact that must be reviewed for clear error. “A finding of

fact is clearly erroneous only when, although there is evidence in the record to support

it, the court of appeals is left with the ‘definite and firm conviction’ that a mistake has

been committed.” Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694

F.2d 531, 539 (9th Cir. 1982) (quoting United States v. U.S. Gypsum Co., 333 U.S.

364, 395 (1948)). This Court has not been left with such a conviction because the

government offered specific evidence showing that the area was a high-crime area,

and Luckett’s evidence to the contrary was insufficiently granular to rebut the

government’s specific evidence. There is no clear error.

Regarding the second factor, criminal history is part of the totality of

circumstances officers may consider in their reasonable suspicion calculus, though

criminal history alone cannot establish reasonable suspicion. See United States v.

Cotterman, 709 F.3d 952, 968 (9th Cir. 2013). In addition, it is reasonable for an

officer to suspect that a person dealing in illegal drugs may be armed. See United

States v. Davis, 530 F.3d 1069, 1082–83 (9th Cir. 2008). And while illicit drug use

3 alone does not support such an inference, Ramirez v. City of Buena Park, 560 F.3d

1012, 1022 (9th Cir. 2009), one of the officers was aware of Luckett’s multiple

criminal convictions, including an arrest for carrying a loaded firearm. It was therefore

reasonable for that officer to suspect that Luckett was engaged in criminal activity.

Moreover, that officer’s suspicion arose from additional considerations—Luckett’s

nervous behavior and Luckett’s presence in a high-crime area. In context, Luckett’s

criminal history was probative.

Regarding the third factor, the government argued that each of Luckett’s

behaviors, taken together, constituted out-of-the-ordinary behavior in the eyes of the

officer, who had multiple prior interactions with Luckett. This Court must defer to

inferences drawn by officers on the scene. Valdes-Vega, 738 F.3d at 1077.

Accordingly, the Court finds that Luckett’s nervous and evasive behavior may be

considered as part of the totality of the circumstances.

Giving due weight to the factual inferences of the district court and the officers

on the scene, we agree that the above three factors, viewed in the aggregate, “sufficed

to form a particularized and objective basis” for reasonable suspicion, even though

“each of these factors alone is susceptible of innocent explanation, and some factors

are more probative than others.” Arvizu, 534 U.S. at 277–78.

AFFIRMED.