FILED
NOT FOR PUBLICATION
MAY 07 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50496
Plaintiff-Appellee, D.C. No. 2:15-cr-00059-SVW-1
v.
MEMORANDUM*
LUIS ALBERTO TORRES,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted April 13, 2018
Pasadena, California
Before: SCHROEDER, CLIFTON, and M. SMITH, Circuit Judges.
Defendant-Appellant Luis Torres appeals his conviction and sentence
following a conditional guilty plea. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The district court found that Torres voluntarily consented to the search of his
phone. This finding is reviewed for clear error. See United States v. Brown, 563
F.3d 410, 414 (9th Cir. 2009). When he consented to the search of his phone,
Torres had not been arrested, the officers had not drawn their guns, and Torres had
not been told that a search warrant could be obtained. The district court did not
clearly err in its finding.
Torres argues that even if he voluntarily consented to the search of his
phone, that consent was tainted by an unlawful detention. Even if we assume that
Torres was seized for Fourth Amendment purposes when the officers took him to
the security room, his seizure was not unlawful because the officers had reasonable
suspicion to justify the brief seizure on the ground that Torres had violated a
California statute. The officers “observed through several cameras Mr. Torres
walking around” and engaging in conduct that might have been in violation of the
statute. Because the officers had reasonable suspicion, Torres’s seizure was not
unlawful and did not taint his consent.
We are not persuaded by Torres’s contention that his seizure was actually an
arrest requiring probable cause. In determining whether a seizure amounted to an
arrest, we consider whether “a reasonable innocent person in these circumstances
would . . . have felt free to leave after brief questioning,” and “whether the officer
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had sufficient basis to fear for his safety to warrant the intrusiveness of the action
taken.” United States v. Edwards, 761 F.3d 977, 981 (9th Cir. 2014) (alteration in
original) (quoting United States v. Delgadillo–Velasquez, 856 F.2d 1292, 1295–96
(9th Cir. 1988), and Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996)).
The first factor here weighs against a determination that Torres was arrested
when taken to the security office. The officers “asked Torres whether he would
mind voluntarily accompanying them,” indicating that Torres could refuse. The
officers neither handcuffed Torres nor locked him inside the security office.
Merely moving Torres from a public area to a private one did not itself transform
the seizure into an arrest. See Florida v. Royer, 460 U.S. 491, 504-05 (1983).
Though an officer held Torres’s hands behind his back as he walked to the security
office, this restraint was not very intrusive. More severe restraints failed to turn a
stop into an arrest. See Halvorsen v. Baird, 146 F.3d 680, 684 (9th Cir. 1998).
Torres argues that the district court erred in concluding that it could not
grant custody credit for a discharged state sentence to reduce Torres’s federal
sentence below the statutory minimum. We do not need to resolve that question
because any error here was harmless. The district court below made clear that the
sentence imposed was the term that it considered appropriate and that it would not
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have imposed a shorter sentence based on the time served on the discharged state
sentence.
Torres contends that eight of his supervised-release conditions differ from
the district court’s oral imposition of them. Most of the alleged discrepancies are
merely clarifications that need not have been explicit in oral sentencing. These do
not require remand or revision. There were three discrepancies of substance,
however, which we will revise so that the written conditions are consistent with the
sentencing judge’s oral judgment.
We strike the following sentence from the third written condition: “The
defendant shall abstain from using alcohol and illicit drugs, and from abusing
prescription medications during the period of supervision.” In its place, we add the
following sentence: “The defendant shall refrain from any unlawful use of a
controlled substance.”
We add the following sentence to the end of the fifth written condition:
“This restriction shall not apply to items used at the employer’s site which are
maintained and monitored by the employer.”
We strike written condition six in its entirety, which reads: “6. All
computers, computer-related devices, and their peripheral equipment, used by the
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defendant shall be subject to search and seizure. This shall not apply to items used
at the employment's site, which are maintained and monitored by the employer.”
AFFIRMED as MODIFIED.
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