NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 24 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-30162
Plaintiff - Appellee, D.C. No. 2:06-cr-02189-FVS-1
v.
MEMORANDUM*
AARON LOPEZ GARCIA,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-30163
Plaintiff - Appellee, D.C. No. 2:05-cr-02040-FVS-1
v.
AARON LOPEZ GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Argued and Submitted October 11, 2012
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KOZINSKI, Chief Judge, TASHIMA and M. SMITH, Circuit Judges.
Defendant-Appellant Aaron Garcia appeals the district court’s denial of his
motion to suppress the fruits of a Terry stop, after which the jury convicted him of
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Garcia further appeals the judgment and sentence imposed by the district court
following his guilty plea to escape from federal custody, in violation of 18 U.S.C.
§ 751(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court denied Garcia’s motion to suppress primarily because a
reasonable officer could believe, based on the totality of the circumstances, that
Garcia was armed and dangerous. We hold that the seizure of the gun underneath
the jacket in Garcia’s car was the result of a lawful Terry stop based on “ ‘specific
and articulable facts, which . . . reasonably warrant’ the officers in believing that
the suspect is dangerous and the suspect may gain immediate control of weapons.”
Michigan v. Long, 463 U.S. 1032, 1049 (1983) (quoting Terry v. Ohio, 392 U.S. 1,
21 (1968)). The vehicle in which Garcia was a passenger abruptly turned off its
headlights in a motel parking lot while still in motion; the Bali Hai Motel was
known for being a place where criminal activity occurred and was the site of
previous arrests of gang members with guns; and Garcia was wearing lots of red
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clothes consistent with the color worn by individuals identifying with a gang.
Garcia also exhibited evasive behavior when Officer Miller asked him to give
Castillo the jacket inside the car because she was visibly shaking from the cold.
See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (recognizing that “nervous,
evasive behavior is a pertinent factor in determining reasonable suspicion”). Under
the circumstances, Officer Miller reasonably believed that Garcia could be
concealing a firearm underneath the jacket. Thus, the officers lawfully entered the
car, picked up the jacket, and seized the handgun. Long, 463 U.S. at 1049–50.
Moreover, the prosecutor’s references to Garcia’s post-arrest statements and
conduct as evidence of his guilt did not constitute plain error. The Government
offered evidence that Garcia, after being arrested, became uncooperative and yelled
at the other car passengers to be quiet and to wait to speak with an attorney before
speaking with the officers. Because Garcia never objected to the admission of this
evidence at trial, it is subject to plain error review. United States v. Dreyer, 693
F.3d 803, 808 (9th Cir. 2012). Here, Garcia’s spontaneous and volunteered post-
arrest statements were admissible because he did not remain silent after being
arrested. See Rhode Island v. Innis, 446 U.S. 291, 300–04 (1980); United States v.
Booth, 669 F.2d 1231, 1237 (9th Cir. 1981); United States v. Sherwood, 98 F.3d
402, 409 (9th Cir. 1996) (“ ‘Spontaneous’ or ‘volunteered’ confessions of a suspect
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in custody are admissible despite the absence of a prior Miranda warning.”). If
there was any error in admitting the evidence of Garcia’s post-arrest statements and
conduct, it was not plain and did not seriously affect the fairness of his trial.
Garcia admitted at trial that he had made the statements. Thus, no plain error
occurred.
Finally, Garcia did not present any argument suggesting that his escape
conviction was in error or raise any issue regarding that conviction in his opening
brief. Thus, he abandoned the appeal of his escape judgment and sentence. See
Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988) (“It is well
established in this Circuit that claims which are not addressed in the appellant’s
brief are deemed abandoned.”).
AFFIRMED.
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United States v. Aaron Garcia
Combined Opinion