FILED
NOT FOR PUBLICATION FEB 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30117
Plaintiff - Appellee, D.C. No. 2:08-cr-00146-LRS-1
v.
MEMORANDUM*
DALLAS C. HERMAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding
Argued and Submitted February 8, 2011
Seattle, Washington
Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.
After entering a conditional plea of guilty to one count of possession with
intent to distribute 50 grams or more of a methamphetamine mixture in violation of
21 U.S.C. § 841(a)(1), Dallas Herman appeals the district court’s denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion to suppress evidence. Herman argues that the court’s factual findings were
clearly erroneous because the court credited inconsistent testimony by the arresting
officer, Trooper Walker. Herman also argues that the search of his car was illegal
under the Fourth Amendment in light of Arizona v. Gant, 129 S. Ct. 1710 (2009).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
“A district court's denial of a motion to suppress is reviewed de novo and its
factual findings for clear error.” United States v. Jennen, 596 F.3d 594, 597 (9th
Cir. 2010). Here, the district court did not clearly err in crediting the testimony of
Trooper Walker. There were some inconsistencies between Walker’s two reports
regarding his subjective reasons for the stop, search, and arrest and some internal
inconsistencies in Walker’s testimony about the timing of Herman’s formal arrest.
Walker’s testimony was consistent, however, regarding Herman’s erratic driving,
indications that Herman was intoxicated, and Herman’s evasive behavior when
asked about weapons. We give special deference to the district court's credibility
determinations. United States v. Haswood, 350 F.3d 1024, 1028 (9th Cir. 2003).
Here, we cannot conclude that, in light of all the evidence, the trial court reached a
credibility decision that falls outside “the permissible choices the court could have
made.” United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc).
2
The district court properly ruled that the search of Herman’s car did not
violate the Fourth Amendment. First, Herman does not contest the validity of the
traffic stop. Second, we conclude that Walker’s observation that Herman was
intoxicated together with Herman’s evasive movements when asked about
weapons created reasonable suspicion that Herman might be armed and dangerous,
thus justifying Walker in ordering Herman out of the car and performing a pat
down frisk. United States v. Hartz, 458 F.3d 1011, 1018 (9th Cir. 2006). We also
conclude that the scope of the frisk did not exceed constitutional limits. See id.
Further, we agree with the district court that Trooper Walker had probable
cause to search Herman’s car. “Probable cause to search is evaluated in light of the
totality of the circumstances.” United States v. Pinela-Hernandez, 262 F.3d 974,
978 (9th Cir. 2001). We conclude that the residue found on the spoon discovered
in Herman’s pocket, together with all of Trooper Walker’s observations regarding
Herman’s appearance and behavior, created probable cause to search the car.
Thus, the search was justified under the automobile exception. United States v.
Ross, 456 U.S. 798, 809 (1982) (holding that a search of an automobile is not
unreasonable if based on facts that would justify the issuance of a warrant, even
though a warrant has not actually been obtained).
3
Because the government need not justify the search of Herman’s vehicle as
incident to a valid arrest, Gant has no application here. We conclude, however,
that even as a search incident to arrest, the search of the vehicle was proper
because it was reasonable to believe that evidence of the crimes of
arrest—possession of methamphetamine and driving under the influence of
narcotics—might be found in the car. See Gant, 129 S. Ct. at 1719.
AFFIRMED
4