United States v. Luis Torres

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 7, 2018
• Docket: 16-50496
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 07 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50496

Plaintiff-Appellee, D.C. No. 2:15-cr-00059-SVW-1

v. MEMORANDUM* LUIS ALBERTO TORRES,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted April 13, 2018 Pasadena, California

Before: SCHROEDER, CLIFTON, and M. SMITH, Circuit Judges.

Defendant-Appellant Luis Torres appeals his conviction and sentence

following a conditional guilty plea. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The district court found that Torres voluntarily consented to the search of his

phone. This finding is reviewed for clear error. See United States v. Brown, 563

F.3d 410, 414 (9th Cir. 2009). When he consented to the search of his phone,

Torres had not been arrested, the officers had not drawn their guns, and Torres had

not been told that a search warrant could be obtained. The district court did not

clearly err in its finding.

Torres argues that even if he voluntarily consented to the search of his

phone, that consent was tainted by an unlawful detention. Even if we assume that

Torres was seized for Fourth Amendment purposes when the officers took him to

the security room, his seizure was not unlawful because the officers had reasonable

suspicion to justify the brief seizure on the ground that Torres had violated a

California statute. The officers “observed through several cameras Mr. Torres

walking around” and engaging in conduct that might have been in violation of the

statute. Because the officers had reasonable suspicion, Torres’s seizure was not

unlawful and did not taint his consent.

We are not persuaded by Torres’s contention that his seizure was actually an

arrest requiring probable cause. In determining whether a seizure amounted to an

arrest, we consider whether “a reasonable innocent person in these circumstances

would . . . have felt free to leave after brief questioning,” and “whether the officer

2 had sufficient basis to fear for his safety to warrant the intrusiveness of the action

taken.” United States v. Edwards, 761 F.3d 977, 981 (9th Cir. 2014) (alteration in

original) (quoting United States v. Delgadillo–Velasquez, 856 F.2d 1292, 1295–96

(9th Cir. 1988), and Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996)).

The first factor here weighs against a determination that Torres was arrested

when taken to the security office. The officers “asked Torres whether he would

mind voluntarily accompanying them,” indicating that Torres could refuse. The

officers neither handcuffed Torres nor locked him inside the security office.

Merely moving Torres from a public area to a private one did not itself transform

the seizure into an arrest. See Florida v. Royer, 460 U.S. 491, 504-05 (1983).

Though an officer held Torres’s hands behind his back as he walked to the security

office, this restraint was not very intrusive. More severe restraints failed to turn a

stop into an arrest. See Halvorsen v. Baird, 146 F.3d 680, 684 (9th Cir. 1998).

Torres argues that the district court erred in concluding that it could not

grant custody credit for a discharged state sentence to reduce Torres’s federal

sentence below the statutory minimum. We do not need to resolve that question

because any error here was harmless. The district court below made clear that the

sentence imposed was the term that it considered appropriate and that it would not

3 have imposed a shorter sentence based on the time served on the discharged state

sentence.

Torres contends that eight of his supervised-release conditions differ from

the district court’s oral imposition of them. Most of the alleged discrepancies are

merely clarifications that need not have been explicit in oral sentencing. These do

not require remand or revision. There were three discrepancies of substance,

however, which we will revise so that the written conditions are consistent with the

sentencing judge’s oral judgment.

We strike the following sentence from the third written condition: “The

defendant shall abstain from using alcohol and illicit drugs, and from abusing

prescription medications during the period of supervision.” In its place, we add the

following sentence: “The defendant shall refrain from any unlawful use of a

controlled substance.”

We add the following sentence to the end of the fifth written condition:

“This restriction shall not apply to items used at the employer’s site which are

maintained and monitored by the employer.”

We strike written condition six in its entirety, which reads: “6. All

computers, computer-related devices, and their peripheral equipment, used by the

4 defendant shall be subject to search and seizure. This shall not apply to items used

at the employment's site, which are maintained and monitored by the employer.”

AFFIRMED as MODIFIED.