FILED
NOT FOR PUBLICATION MAR 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10181
Plaintiff - Appellee, D.C. No. 2:08-CR-228-RLH-
PAL
v.
RAYMOND EARL RAFUS, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief United States District Judge, Presiding
Submitted March 17, 2011 **
San Francisco, California
Before: REAVLEY,*** McKEOWN, and PAEZ, Circuit Judges.
Defendant-Appellant Raymond Earl Rafus appeals his conviction pursuant
*
This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as provided by Ninth Cir. Rule 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. See F ED. R. A PP. P. 34(a)(2).
***
The Honorable Thomas M. Reavley, Senior United States Circuit Judge
for the Fifth Circuit, sitting by designation.
to a conditional plea of guilty to possession of a controlled substance with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). We affirm.
Rafus argues that the district court erroneously denied his motion to
suppress, and he raises two issues. We review de novo the denial of a motion to
suppress, while reviewing for clear error the underlying factual findings. United
States v. Davis, 530 F.3d 1069, 1077 (9th Cir. 2008).
Rafus first contends that his seizure on August 20, 2008, by the Clark
County, Nevada Gang Task Force was a full scale arrest lacking probable cause
rather than a mere investigatory detention. Police may conduct an investigatory
stop under the Fourth Amendment if “the officer’s action is supported by
reasonable suspicion to believe that criminal activity may be afoot.” United States
v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750 (2002) (internal quotation marks
and citations omitted); see also Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868,
1884–85 (1968). A full scale arrest, however, must be supported by probable
cause. See Morgan v. Woessner, 997 F.2d 1244, 1252 (9th Cir. 1993). Because
officers are entitled to take reasonable measures to protect their personal safety, the
circumstances of each case must be considered to determine whether an
investigatory stop has been transformed through police actions into a full arrest.
See United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982).
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In the instant case, surveillance officers observed Rafus engage in what they
believed was a narcotics transaction with the target of their investigation, who was
present to conduct a pre-arranged, controlled drug deal with their confidential
informant. The district court found that one of the officers, upon noticing Rafus’
car, alerted the rest of the task force via radio to Rafus’ identity. After reviewing
the testimony, we conclude that this factual finding was not clearly erroneous. See
SEC v. Rubera, 350 F.3d 1084, 1093–94 (9th Cir. 2003) (“So long as the district
court’s view of the evidence is plausible in light of the record viewed in its
entirety, it cannot be clearly erroneous . . . .”). This is significant because many of
the same officers in the task force had a previous violent encounter with Rafus
approximately one month before while executing a search warrant in an unrelated
investigation. During that encounter, Rafus had tried to grab an officer’s weapon
and had to be subdued by several officers.
In the present encounter, upon witnessing what they believed from their
training to be a drug deal, and seeing Rafus apparently drop and retrieve a plastic
baggie before driving off, the officers had reasonable suspicion to follow Rafus
and conduct an investigatory stop. We conclude from the totality of the
circumstances here that the officers were fully justified in effecting the stop as they
did with guns drawn, placing Rafus in handcuffs, and frisking him for weapons or
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contraband. See United States v. Guzman-Padilla, 573 F.3d 865, 884 (9th Cir.
2009) (intrusive means are permissible without converting a stop into an arrest if
the police conduct “is a reasonable response to legitimate safety concerns on the
part of the investigating officers”) (internal quotation marks and citation omitted);
Davis, 530 F.3d at 1082–83 (“Because officers reasonably suspected that
[defendant] was involved in narcotics activity, it was also reasonable for them to
suspect that he might be armed.”); see also Allen v. City of Los Angeles, 66 F.3d
1052, 1056 (9th Cir. 1995). Police had legitimate, reasonable suspicion that Rafus
was involved in drug activity, and they knew from the prior violent encounter with
him that he could possibly pose a threat to their safety during the course of the
stop. Their actions were reasonable. See Allen, 66 F.3d at 1057 (“The relevant
inquiry is always one of reasonableness under the circumstances.”) (quotation
marks and citation omitted).
Rafus next argues that the arresting officer exceeded the scope of a
permissible patdown under Terry by manipulating his clothing and seizing the
plastic baggie from his front pocket. An officer conducting a lawful patdown may
seize from the defendant an item that the officer immediately recognizes from
touch to be contraband. See United States v. Miles, 247 F.3d 1009, 1013 (9th Cir.
2001) (citing Minnesota v. Dickerson, 508 U.S. 366, 375–76, 113 S. Ct. 2130,
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2137 (1993)). Here, the officer lifted Rafus’ handcuffs, which had become
entangled with his shirt, to access Rafus’ waistband for a patdown. The officer
testified that he felt a hard object in Rafus’ front pocket that he immediately
believed to be crack cocaine. The officer formed this belief from the feel of the
object and his prior observation of Rafus in the mall parking lot. The officer also
observed the top of a plastic baggie protruding from the top of Rafus’ pocket,
which he then pulled out. We conclude that the officer did not exceed the scope of
a lawful Terry stop and patdown. See, e.g., United States v. Mattarolo, 209 F.3d
1153, 1158 (9th Cir. 2000) (officer was alerted to presence of the drugs “by the
familiar sensation of plastic sliding against a granular substance,” and “[o]nce the
presence of drugs became known in this manner, they could be seized without the
defendant’s consent pursuant to a tactile variation on the ‘plain view’ rule”).
AFFIRMED.
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