FILED NOT FOR PUBLICATION APR 27 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10112
Plaintiff-Appellee, D.C. Nos. 1:18-cr-00147-DAD-SKO-1 v. 1:18-cr-00147-DAD-SKO
RAUL ADRIAN TORRES, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding
Argued and Submitted March 9, 2021 San Francisco, California
Before: McKEOWN, IKUTA, and BRESS, Circuit Judges. Dissent by Judge McKEOWN
Raul Adrian Torres appeals the district court’s denial of his motions to
suppress and to dismiss. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. A detective with the Fresno Police Department was browsing social media
when he observed a recently uploaded video of Torres posing with a gun at the
house of a local gang member. The detective quickly linked the video to another
social media profile that used the name Adrian Torres. After further investigation,
the detective concluded (mistakenly, as it would turn out) that Torres had an
outstanding warrant for being a felon in possession of ammunition. Officers on
surveillance observed Torres leaving the house with a backpack. Officers exited
the car, identified themselves, and ordered Torres to stop, but he took off running.
Officers gave chase and eventually caught up to Torres, who resisted arrest.
Torres yelled profanities at officers while continuing to resist and fight.
Eventually, officers were able to get Torres under control, handcuffed, and
shackled. One officer asked Torres why he ran. He responded, “[c]ause I have a
gun.” Officers then searched Torres’s backpack and found a firearm with its serial
number scratched off, along with a loaded magazine and additional ammunition.
Torres then stated to officers, “I’m gonna smoke you.”
Officers asked Torres several routine booking questions, during which time
Torres made multiple unsolicited statements about how he wished he would have
used the gun to “shoot it out” with police. Eventually, officers discovered that
Torres was not Adrian Torres, but Raul Adrian Torres, and that he had two
2 previous felony convictions for domestic violence, was on felony probation, and
was wanted for another recent domestic violence offense. Officers advised Torres
of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966), and he agreed
to speak with them. He admitted that the gun was his, that he knew the serial
numbers were scratched off, and that he was on the run “because he didn’t check
into his probation.”
1. Torres argues that the police lacked sufficient cause to arrest him and
that the district court erred by misapplying Section 148 of the California Penal
Code and by declining to hold an evidentiary hearing. But the record establishes
that the police had sufficient cause for the stop and the arrest. Given the
information they were provided, the officers had “a good faith, reasonable belief
that the arrestee was the subject of the warrant.” Rivera v. Cnty. of Los Angeles,
745 F.3d 384, 389 (9th Cir. 2014). Alternatively, police had reasonable suspicion
to stop Torres based on the social media post and their belief that he was the
subject of an outstanding warrant, see Terry v. Ohio, 392 U.S. 1, 30 (1968); United
States v. Garcia-Acuna, 175 F.3d 1143, 1147 (9th Cir. 1999). Once Torres fled the
attempted Terry stop and then assumed a fighting stance to resist the Terry stop,
Detective Wilkin and Agent Carlos had probable cause to arrest Torres under
Section 148(a)(1) of the California Penal Code. See Velazquez v. City of Long
3 Beach, 793 F.3d 1010, 1018–19 (9th Cir. 2015). No evidentiary hearing was
required because, although Torres argues about the legal significance of
uncontested facts, he fails to identify any disputed, material issues of historical
fact. See United States v. DiCesare, 765 F.2d 890, 895 (9th Cir. 1985).
2. Torres next claims that the search of his backpack violated the Fourth
Amendment, and that therefore the district court erred in declining to suppress the
gun found within it. The search did not violate the Fourth Amendment, however,
because it falls within the search incident to a lawful arrest exception. See Arizona
v. Gant, 556 U.S. 332, 351 (2009). This case is controlled by United States v.
Cook, 808 F.3d 1195 (9th Cir. 2015), which held that the search incident to a
lawful arrest exception applied even though the individual searched was on the
ground in handcuffs when his backpack was searched nearby. See id. at
1199-1200.
3. Torres also argues that the district court erred in declining to suppress
his statement “[c]ause I have a gun” in response to the officer’s question regarding
“why he ran.” But assuming without deciding that this question is not covered by
the public safety exception to Miranda, see, e.g., Allen v. Roe, 305 F.3d 1046, 1050
(9th Cir. 2002), any error in admitting this statement is harmless, because there is
no reasonable possibility that the erroneously admitted statement contributed to
4 Torres’s decision to plead guilty to a violation of 18 U.S.C. § 922(g)(1). United
States v. Lustig, 830 F.3d 1075, 1088–89 & n.14 (9th Cir. 2016).
To convict Torres under 18 U.S.C. § 922(g)(1), the government had to prove
that Torres (1) knew that he possessed a firearm and (2) knew he was a person
“who has been convicted in any court of[] a crime punishable by imprisonment for
a term exceeding one year.” 18 U.S.C. § 922(g)(1); Rehaif v. United States, 139 S.
Ct. 2191, 2200 (2019). In his reply brief, Torres argues for the first time that his
“[c]ause I have a gun” response is prejudicial because it is evidence of the second
element.1 But even if we accept Torres’s characterization of his own ambiguous
statement, Torres’s response does not tend to prove that Torres knew he was a
person “who has been convicted in any court of[] a crime punishable by
imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). At most,
Torres’s response could be evidence that Torres knew that possession of the
firearm was generally unlawful (because having the firearm motivated him to run
from the police).2 The dissent argues that because Torres’s statement raises the
1 As to the first element, that the defendant knew that he possessed a firearm, Torres’s statement is duplicative of other evidence in the record. For instance, in his interview with Detective Martinez after receiving Miranda warnings, Torres admitted to knowing he was in possession of the firearm. 2 Of course, a defendant’s knowledge that possession of a firearm is unlawful is not itself an element of a § 922(g)(1) offense. 5 inference that Torres “knew it was wrong to have a gun,” this inference then
supports the further inference that the statement “suggests Torres knew” he was a
person “who has been convicted in any court of[] a crime punishable by
imprisonment for a term exceeding one year” under 18 U.S.C. § 922(g)(1). We
disagree. The dissent’s labored and tangled disquisition, relies on a chain of
inferences too attenuated and speculative to raise a “reasonable possibility” that
Torres’s statement contributed to Torres’s plea decision. Lustig, 830 F.3d at 1088
& n.14. To hold otherwise would effectively create the automatic reversal rule
rejected by Lustig and Neder v. United States, 527 U.S. 1, 7 (1999). See Lustig,
830 F.3d at 1089–90.
Torres’s statement also adds little, if anything, to the already substantial
circumstantial evidence that Torres knew his possession of a gun was illegal.3
“[K]nowledge can be inferred from circumstantial evidence.” Rehaif, 139 S. Ct. at
2198 (quoting Staples v. United States, 511 U.S. 600, 615 n.11 (1994)). Torres
took off running when police attempted to stop him, and he admitted in multiple
3 Because Torres’s knowledge that it was illegal for him to possess a gun is not an element of a § 922(g)(1) charge, our observation that Torres’s “[c]ause I have a gun” statement adds “little, if anything,” to the evidence regarding this knowledge does not support the dissent’s argument that Torres would have thought the admission of this statement would hurt him at trial by showing that he knew he was a person “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year,” 18 U.S.C. § 922(g)(1). 6 post-Miranda police interviews that he knew he had a gun, the gun was his, and he
knew he had failed to comply with the terms of his probation and was wanted or
had a warrant out for his arrest. Torres also later admitted that he knew the gun he
had was illegal because its serial numbers were obliterated, and he also said he
knew he was “going to get charged with it.” He has also been convicted of two
prior felonies and has never claimed he was unaware of his felon status. Given all
this evidence, any improper admission of the “[c]ause I have a gun” statement was
harmless.
4. Torres argues that his statements to Detectives Flowers and Martinez
should have been suppressed or, in the alternative, that an evidentiary hearing was
needed. The statements made to Detective Flowers were admissible under the
routine booking questions exception because Detective Flowers only asked Torres
questions needed to run his information in the police booking system, and these
questions were not reasonably likely to elicit incriminating responses. See United
States v. Williams, 842 F.3d 1143, 1147 (9th Cir. 2016). Any spontaneous
statements made by Torres during these booking questions need not be suppressed.
See Cox v. Del Papa, 542 F.3d 669, 675–76 & n.10 (9th Cir. 2008).
There is also no issue with the post-arrest statements made to Detective
Martinez. Although Torres attempts to analogize this case to Missouri v. Seibert,
7 542 U.S. 600 (2004), there is no evidence that a deliberate two-step interrogation
occurred here. Nothing regarding any of the statements made by Torres in this
case mandates an evidentiary hearing. See DiCesare, 765 F.2d at 895.
5. Finally, Torres claims that in denying his motion to dismiss, the
district court failed to consider a fundamental fairness exception, which provides
that charges may be dismissed if a “breach of [an] agreement rendered a
prosecution fundamentally unfair.” See United States v. Williams, 780 F.2d 802,
803–04 (9th Cir. 1986) (per curiam). Nothing in the record supports the existence
of any agreement made by state prosecutors or the state court, and the state-court
transcript clearly informed Torres that the state firearm case was going to be
dismissed “in light of a federal prosecution.” Because there was no breach of any
agreement, that exception does not apply.
AFFIRMED.
8 FILED United States v. Raul Torres, No. 20-10112 APR 27 2021
McKEOWN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
When Agent Carlos kneed, punched, restrained, and handcuffed Torres,
there was no doubt he was in custody. To its credit, the government doesn’t
disagree. But instead of giving Torres his Miranda warnings, Agent Carlos
launched into questioning. Torres responded with an inculpatory statement that
was instrumental in establishing an element of the charged crime. I respectfully
dissent because Torres was subjected to custodial interrogation without the
required Miranda advisements. The district court erred in failing to suppress the
statement, and this error was not harmless.
The officer’s question—why did you run?—easily falls into the category of
“express questioning” or, at the very least, amounted to “words . . . that the police
should know are reasonably likely to elicit an incriminating response.” Rhode
Island v. Innis, 446 U.S. 291, 300–01 (1980). This was a pointed question aimed
at eliciting an inculpatory response, not a friendly inquiry to see how Torres was
doing nor a casual query about where he was going.
The only issue, then, is whether the public safety exception applies. It does
not. The exception excuses the need for Miranda warnings when “police officers
ask questions reasonably prompted by a concern for the public safety.” Allen v.
Roe, 305 F.3d 1046, 1050 (9th Cir. 2002) (quoting New York v. Quarles, 467 U.S. 649, 656 (1984)). The standard is high: “the police must reasonably believe that
there is a serious likelihood of harm to the public or fellow officers.” Id. In
applying this exception, we have often emphasized the non-investigatory nature of
the questioning. See, e.g., United States v. Carrillo, 16 F.3d 1046, 1049–50 (9th
Cir. 1994), as amended (May 17, 1994) (“Our conclusion is buttressed by the non-
investigatory nature of the officer’s question. The question called for a ‘yes’ or
‘no,’ not a testimonial response.”); United States v. Brady, 819 F.2d 884, 888 (9th
Cir. 1987) (applying the exception because, among other reasons, the question was
“not investigatory”).
Though the majority does not reach this issue, I would conclude, without
doubt, that the exception does not apply here both because there was no danger to
the public or to the police that necessitated the question and because the question
was investigatory. Torres was arrested in an alleyway, and there is no evidence
that there were other people in the alleyway at the time of the arrest. The most
telling fact is that the officers do not even assert a subjective perception of
immediate danger when Torres was shackled and handcuffed. Because the
standard requires that the officers “reasonably believe” there is a danger, the public
safety exception simply cannot apply where the officers do not even believe there
was a danger when the question was asked. Allen, 305 F.3d at 1050.
The absence of any perception of danger is underscored by the nature of the
2 question asked, which did not seek information to address a public safety threat,
but rather was aimed at eliciting testimonial, inculpatory information. If the
officers were concerned about the gun, they could have asked, “are you armed?”;
“is there a gun?”; “where is the gun?”; or another similar question. But instead
they asked only why Torres ran. That question is framed to elicit an incriminating
response rather than information “necessary to secure [the officers’] own safety or
the safety of the public” especially when, as here, no threat has even been
identified. Quarles, 467 U.S. at 659.
With no public safety justification to fall back on, the custodial interrogation
without Miranda warnings was a violation of Torres’ Fifth Amendment right.
Contrary to the majority’s conclusion, the error in denying the motion to suppress
was not harmless. Our precedent sets a high bar for the government to establish
harmlessness where, as here, the defendant took a conditional guilty plea. The
government must show that there is no “reasonable possibility” that the
erroneously admitted evidence “contributed to [the] decision to plead guilty.”
United States v. Lustig, 830 F.3d 1075, 1088 (9th Cir. 2016) (citation omitted).
This standard is “necessarily hard for the government to meet”—so much so that
“an appellate court will rarely, if ever, be able to determine whether an erroneous
denial of a motion to suppress contributed to the defendant’s decision [to plead
guilty].” Id. (emphasis added) (citation omitted).
3 The government does not clear this high bar. Because the statement went
directly to an element of the charged crime, there is more than a “reasonable
possibility” that its erroneous admission contributed to the decision to plead guilty.
Id. The statement that Torres ran because he had a gun establishes that he knew he
was not allowed to have a gun. That is critical evidence because the charged
crime—Felon in Possession of a Firearm, 18 U.S.C. § 922(g)(1)—requires proof
that the defendant “knew he belonged to the relevant category of persons barred
from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).
By establishing that he knew it was wrong to have a gun, the statement in turn
suggests that Torres knew he belonged to the category of persons barred from
possessing a gun—in this case people with felony convictions. That the statement
is legally damaging and would have been harmful to Torres at trial is more than
enough to show that it “could have affected [Torres’] decision to plead guilty.”
Lustig, 830 F.3d at 1086.
The majority argues that Torres’ statement does not tend to prove knowledge
of felon status at all. That is a dramatic position to take, especially given the other
evidence that the majority credits as tending to prove knowledge and the long-
standing principle that knowledge “can be inferred from circumstantial evidence.”
Rehaif, 139 S. Ct. at 2198 (quoting Staples v. United States, 511 U.S. 600, 615
n.11 (1994)). Admittedly, different inferences might be drawn from the statement,
4 but the inference that Torres knew it was illegal for him to carry the gun because
he has a felony conviction is a fair one, and indeed would be enough for a jury to
convict. The evidence easily falls into the category of evidence the prosecutor
could use to establish knowledge. And that’s enough under Lustig, because if the
prosecutor could leverage the evidence against Torres at trial, Torres could
reasonably take a plea in fear of it.
The majority tries to sidestep the import of the statement by arguing that any
value in the statement is merely duplicative of other evidence. But what other
evidence? The only evidence that the majority cites as tending to prove knowledge
of felon status is that Torres knew he was on probation and that he was convicted
of a crime punishable by more than a year of prison.1 Probation does not establish
knowledge of felon status because it is used in California for both felonies and
misdemeanors. See Cal. Penal Code § 1203. And the fact of a conviction
punishable by over a year does not establish knowledge of that type of conviction
because here, Torres was never actually punished by over a year of prison. More
importantly, the Supreme Court has already told us that probation and the fact of a
felony conviction are not enough to establish knowledge. Rehaif explicitly noted
that the crime of Felon in Possession of a Weapon would not apply to “a person
1 The majority also cites to evidence that clearly establishes that Torres possessed the gun, but that evidence goes to the first element—possession—not to the second element of knowledge of felon status.
5 who was convicted of a prior crime but sentenced only to probation, who does not
know that the crime is punishable by imprisonment for a term exceeding one
year.” Rehaif, 139 S. Ct. at 2198 (internal quotation marks omitted). Because the
two pieces of evidence relied on by the majority do not establish the necessary
knowledge element, they do not render Torres’ statement duplicative.2
Even if the statement were duplicative, the Lustig standard would still be
met. If there are multiple pieces of evidence probative of an element, it is the
defendant’s prerogative, not ours, to evaluate at what point the evidence becomes
too strong to risk trial: “only the defendant is in a position to evaluate the impact of
a particular erroneous refusal to suppress evidence.” Lustig, 830 F.3d at 1088
(quoting United States v. Benard, 680 F.3d 1206, 1213 (10th Cir. 2012)) (internal
quotation marks and citation omitted).
Because the statement contained evidence of guilt, the prospect of its
admission “could have affected [Torres’] decision to plead guilty.” Id. at 1086.
The district court’s error therefore was not harmless, and for that reason I
respectfully dissent and would reverse.
2 In passing, the majority also holds Torres’ silence against him as evidence of knowledge, noting that Torres “has never claimed he was unaware of his felon status.” But of course that reasoning misplaces the burden; Torres need not prove his innocence, and his silence on an issue should not be held out as evidence against him.