United States v. Edgar Lobos

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50080

Plaintiff-Appellee, D.C. No. 2:16-cr-00651-R-1

v. MEMORANDUM* EDGAR ALEXANDER LOBOS, AKA Lil Degon, AKA Payaso, AKA Pelon, AKA Smokey,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Submitted July 11, 2018** Pasadena, California

Before: FISHER,*** WATFORD, and FRIEDLAND, Circuit Judges.

Edgar Lobos appeals the denial of his motion to suppress evidence relating

* 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 D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. to his possession of a gun in violation of 18 U.S.C. § 922(g)(1). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.

Lobos first contends that the district court abused its discretion by denying

him an evidentiary hearing on his motion to suppress. We are not persuaded. “An

evidentiary hearing on a motion to suppress need be held only when the moving

papers allege facts with sufficient definiteness, clarity, and specificity to enable the

trial court to conclude that contested issues of fact exist.” United States v. Howell,

231 F.3d 615, 620 (9th Cir. 2000). Lobos’s bare contention that he “did not waive

[his] Miranda rights during questioning” is a legal conclusion and is insufficient to

demonstrate that a factual dispute exists. See United States v. Rodriguez, 518 F.3d

1072, 1076 (9th Cir. 2008) (“[W]e review the district court’s factual findings

concerning the words a defendant used to invoke his Miranda rights for clear error

and whether the words actually invoked those rights de novo.”); cf. Orr v. Bank of

America, NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (explaining that, to

demonstrate a material fact dispute “[t]o defeat summary judgment, [a party] ‘must

respond with more than mere . . . legal conclusions’” (quoting Kaiser Cement

Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1104 (9th Cir. 1986))).

Lobos next argues that the district court should have suppressed the evidence

that he was in possession of a gun and his statement that he owned the gun because

the Government lacked probable cause to arrest him. We disagree. A woman

2 alleged she was raped and provided a precise and accurate description of Lobos.

That description together with her later photo identification of Lobos were enough

to assure a prudent person that there was a “fair probability” that Lobos was the

rapist. United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984). This is so

even assuming the identification process was suggestive. Once the victim

confirmed that the person shown in the photos of Lobos was her assailant, and

given that he matched her prior description, the officers had probable cause to

arrest him.

AFFIRMED.