United States v. Pedro Ventura Arroyo

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2021
• Docket: 20-50138
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50138

Plaintiff/Appellee, D.C. No. 3:19-cr-03026-JAH-1

v. MEMORANDUM* PEDRO VENTURA ARROYO,

Defendant/Appellant.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Submitted June 9, 2021** Pasadena, California

Before: GRABER, CALLAHAN, FORREST, Circuit Judges.

Pedro Ventura Arroyo appeals his conviction for possessing with the intent

to distribute methamphetamine and heroin. On appeal, he challenges the denial of

his motion to suppress evidence seized from his person and backpack. Having

* 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). jurisdiction under 28 U.S.C. § 1291, we affirm.

The officer properly stopped Arroyo because he was biking on a sidewalk in

violation of the local municipal code. See United States v. Basher, 629 F.3d 1161,

1165 (9th Cir. 2011) (“An investigatory stop or encounter does not violate the

Fourth Amendment if the officers have reasonable suspicion supported by

articulable facts that criminal activity may be afoot.” (internal quotations and

citation omitted)). Arroyo protests that the stop was pretextual—that the officer

was really interested in gang and drug activity. But “[s]ubjective intentions play

no role in ordinary . . . Fourth Amendment analysis.” Whren v. United States, 517

U.S. 806, 813 (1996). Because the officer had an objectively reasonable basis to

stop Arroyo, any ulterior motive is irrelevant.1

The officer also properly “frisked” Arroyo for weapons after stopping him.

See United States v. Davis, 530 F.3d 1069, 1082–83 (9th Cir. 2008) (holding that

weapon pat-downs are appropriate when supported by a “reasonable articulable

suspicion” that someone is armed and dangerous). The officer knew that Arroyo

was a member of a gang active in the area. He had also heard that Arroyo had

been stabbed in a gang-related feud, and Arroyo had a bandaged arm, suggesting

that he might have been armed—either to protect himself or to carry out a

1 Insofar as Arroyo challenges the duration of the investigatory stop, we hold that it was reasonable. Less than a minute elapsed between the stop and pat-down.

2 retributive attack. Arroyo additionally expressed frustration at having been

stopped and was wearing loose-fitting clothes that could have concealed weapons.

In light of these facts, the officer was reasonably concerned for his safety. Indeed,

his concerns were well founded, as Arroyo was carrying two knives in violation of

California law. See Cal. Pen. Code § 21310.

Arroyo’s possession of those knives in turn established probable cause to

arrest him. His backpack, which contained drugs, was properly searched incident

to that arrest. See United States v. Cook, 808 F.3d 1195, 1199 (9th Cir. 2015)

(allowing warrantless searches of the area within an arrestee’s “immediate control”

for the purposes of “protecting arresting officers and safeguarding . . . evidence”).

Arroyo had told the officer that “everything” in his backpack was “illegal,” and

that comment might have meant additional weapons. Although Arroyo was

handcuffed, that fact alone does not render the officer’s brief and limited search

unconstitutional. See id. at 1199–1200. Accordingly, the district court did not err

by denying Arroyo’s motion to suppress the evidence that served as the basis for

his conviction.

AFFIRMED.