NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Patrick J. HEANEY, Defendant-Appellant.
No. 93-30382.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 3, 1994.
Decided Aug. 15, 1994.
Before: WRIGHT, KOZINSKI and FERNANDEZ, Circuit Judges.
MEMORANDUM*
A. The district court did not abuse its discretion in denying Heaney's request for an evidentiary hearing. Though the affidavits submitted by the parties on the motion to suppress indicate a factual dispute, no hearing was required because the facts alleged by Heaney provide sufficient grounds for denying the motion. According to Heaney's affidavit, Officer Brewer pulled into the parking lot after Heaney had already stopped his car. Without being told to do so, Heaney got out of his car and approached Officer Brewer. At this point, Heaney had not been seized. United States v. Hernandez, No. 93-50102, slip op. 6845, 6852 (9th Cir. June 24, 1994); see also California v. Hodari D., 499 U.S. 621, 626 (1991). Officer Brewer then smelled alcohol on Heaney's breath, and Heaney's passenger volunteered that Heaney had consumed a couple of drinks. This gave the officer reasonable suspicion that Heaney had been drinking and entitled him to administer a sobriety test.
B. The results of Heaney's breath analysis were relevant to whether Heaney had been drinking, and the district judge obviated any unfair prejudice by instructing the jury not to consider Heaney's breath alcohol content as per se evidence of Heaney's intoxication. We presume jurors obey the instructions given them. Richardson v. Marsh, 481 U.S. 200, 206 (1987).
C. Two officers testified that Heaney appeared intoxicated; Heaney's own witnesses testified that he had been drinking; and Heaney himself admitted consuming in excess of six drinks over the course of the evening. There was sufficient evidence to convict.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3