United States v. Shalon Freeman

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2018
• Docket: 17-30133
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30133

Plaintiff–Appellee, D.C. No. 3:15-cr-00448-HZ-1

v.

SHALON DAVANTE FREEMAN, MEMORANDUM*

Defendant–Appellant.

Appeal from the United States District Court for the District of Oregon Marco A. Hernández, District Judge, Presiding

Submitted June 4, 2018** Portland, Oregon

Before: M. SMITH and MURGUIA, Circuit Judges, and KORMAN,*** District Judge.

Defendant-Appellant Shalon Freeman appeals the district court’s denial of

his motion to suppress evidence obtained during a traffic stop. Specifically,

* 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 Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Freeman argues that officers obtained this evidence by unlawfully prolonging the

stop in violation of the Fourth Amendment. Reviewing the district court’s denial of

a motion to suppress de novo, and its factual findings for clear error, United States

v. Evans, 786 F.3d 779, 784 (9th Cir. 2015), we affirm.

The district court found, inter alia, the following: Officers Sherwood and

Hughes stopped Freeman for swerving. They approached the vehicle and asked

Freeman for his license, registration, and proof of insurance. After Freeman failed

to produce proof of insurance, Officer Sherwood returned to the police car to run a

records check, while Officer Hughes remained with Freeman. The records check

revealed that Freeman was on post-prison supervision and confirmed that the car

he was driving was not registered to him and that its insurance had expired.

Knowing that Freeman was an active gang member, that he had recently been shot

at, and that they were in a known gang area, Officer Sherwood called for backup,

suspecting that Freeman might have a gun.

Officer Hughes then returned to the police car to tell his partner that

Freeman seemed nervous. The two officers then switched places; Officer Hughes

remained at the police car to complete the records check and write the ticket, while

Officer Sherwood went back to Freeman. As Officer Hughes worked on the ticket,

two additional officers arrived, approximately five or six minutes into the stop. At

this point, Officer Sherwood sought consent from Freeman to search the car. One

2 of the additional officers then saw that Freeman had a gun, and, approximately

nine minutes after the stop began, Freeman was arrested.

Freeman argues that the officers, by seeking his consent to search the car,

unlawfully prolonged the stop “beyond the time reasonably required to complete

th[e] mission of issuing a ticket for the violation.” Rodriguez v. United States,

135 S. Ct. 1609, 1612 (2015) (alteration in original) (quoting Illinois v. Caballes,

543 U.S. 405, 407 (2005)). In making this argument, Freeman assumes a different

version of the facts than the one found by the district court. He claims that,

contrary to the district court’s findings, Officer Sherwood did not initiate a consent

search while Officer Hughes continued to work on the ticket in the police car;

rather, both officers left the police car to go search Freeman’s car, thereby

unlawfully prolonging the stop to investigate an unrelated crime.

The district court, however, did not clearly err in its findings. Though

Freeman’s version is supported by testimony from one of the backup officers, the

district court’s version is supported by testimony from both Officers Sherwood and

Hughes. The district court ultimately believed Officers Sherwood and Hughes over

the other officer, and such a credibility determination is afforded “special

deference.” United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008).

Because “the district court’s view of the evidence is plausible in light of the record

viewed in its entirety, it cannot be clearly erroneous, even if the reviewing court

3 would have weighed the evidence differently had it sat as the trier of fact.” United

States v. Gust, 405 F.3d 797, 799 (9th Cir. 2005) (quoting SEC v. Rubera, 350 F.3d

1084, 1093–94 (9th Cir. 2003)).

Under the facts found by the district court, the officers did not violate the

Fourth Amendment. The police “may conduct certain unrelated checks during an

otherwise lawful traffic stop,” so long as they do not “do so in a way that prolongs

the stop, absent the reasonable suspicion ordinarily demanded to justify detaining

an individual.” Rodriguez, 135 S. Ct. at 1615. And Officer Sherwood’s seeking

consent to search the car did not prolong the stop because he did so while his

partner was still involved with “tasks tied to the traffic infraction.” Id. at 1614.

Specifically, because Freeman was on post-prison release, Officer Hughes testified

that he still needed to contact Freeman’s probation officer to check for outstanding

warrants not yet in the police database, which Officer Hughes testified could take

around fifteen minutes when conducted, as here, after hours. See id. at 1615

(explaining that the “mission” of the ordinary traffic stop typically includes

“determining whether there are outstanding warrants against the driver”).

Moreover, Officer Hughes needed to deal with Freeman’s failure to provide proof

of insurance; Officer Sherwood testified that they would not have been able to

allow Freeman to drive away in an uninsured vehicle. Officer Sherwood’s consent

search therefore did not “measurably extend the duration of the stop.” Arizona v.

4 Johnson, 555 U.S. 323, 333 (2009). Given the need to investigate potential

outstanding warrants and address Freeman’s lack of insurance, it was not the case

here that all “tasks tied to the traffic infraction . . . reasonably should have been . . .

completed” within nine minutes––the total time from stop to arrest. Rodriguez,

135 S. Ct. at 1614.

AFFIRMED.