FILED
NOT FOR PUBLICATION MAY 01 2012
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. 11-10229
Plaintiff - Appellee, D.C. No. 3:08-cr-00615-MHP-1
v.
MEMORANDUM *
JERMAINE LEWIS,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted March 15, 2012
San Francisco, California
Before: McKEOWN and M. SMITH, Circuit Judges, and ROTHSTEIN, Senior
District Judge.**
Jermaine Lewis appeals the district court’s order denying his motion to
suppress the firearm discovered in his car. After the motion was denied, Lewis
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for Western Washington, sitting by designation.
was convicted, in a stipulated bench trial, of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Lewis preserved only the right to
appeal the denial of the motion to suppress; he does not challenge his conviction
here.
Lewis argues that the district court erred in three ways. First, Lewis argues
that he was detained without reasonable suspicion, making the search of his car
unreasonable. Next, he argues that the search of his car was not a valid inventory
search. Finally, he argues that the San Francisco Police Department inventory
search policy was unconstitutionally broad, rendering the inventory search likewise
unconstitutional. We have jurisdiction pursuant to 28 U.S.C. § 1291. The facts of
the case are known to the parties. We repeat them only as necessary.
I
We review a district court’s denial of a motion to suppress de novo and the
district court’s underlying findings of fact for clear error. United States v.
Giberson, 527 F.3d 882, 886 (9th Cir. 2008).
II
An investigatory stop in which an individual is detained “does not violate
the Fourth Amendment if the officers have reasonable suspicion supported by
articulable facts that criminal activity may be afoot.” United States v. Basher, 629
2
F.3d 1161, 1165 (9th Cir. 2011) (internal quotation marks omitted). Reasonable
suspicion exists where, “in light of the totality of the circumstances, the officer had
‘a particularized and objective basis for suspecting the particular person stopped of
criminal activity.’” United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir.
2007) (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). The scope
of the investigatory stop must be reasonably related to the circumstances justifying
the stop. Terry v. Ohio, 392 U.S. 1, 19 (1968).
Lewis concedes that, on the night in question, he had parked his car partially
in a crosswalk in violation of California Vehicle Code § 22500(b). The San
Francisco Police Department officers witnessed Lewis commit the parking
violation. The officers had also been informed by dispatch that Lewis’s
registration had expired. There is no question that, in the totality of the
circumstances, the officers had reasonable suspicion to believe that an offense had
been committed. The stop consisted only of the officers following Lewis into the
corner store and asking to see his driver’s license; it was after they checked
Lewis’s license and were informed that it was invalid that the officers decided to
prolong the encounter. This was reasonable in scope in light of the fact that the
officers witnessed Lewis committing a parking violation. Accordingly, the officers
3
did not violate the Fourth Amendment when they stopped Lewis and asked to see
his driver’s license.
III
An inventory search conducted pursuant to the community caretaking
functions of the police does not require a warrant or probable cause; it must only
be reasonable under the Fourth Amendment. Colorado v. Bertine, 479 U.S. 367,
371 (1987). In general, the routine practice of securing and inventorying the
contents of a car taken into custody, performed pursuant to standardized
procedures, will be considered reasonable. Id. at 371–72. The standardized
criteria governing an inventory search must be specific enough to prevent such a
search from being a pretext “for a general rummaging in order to discover
incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990).
Here, San Francisco General Order (SFGO) 9.06 required the officers to
impound Lewis’s car once they discovered he was driving with a suspended or
revoked licence. SFGO 9.06 required that any car taken into custody be
inventoried, and set forth the procedures by which the inventory could be
conducted. The district court found no evidence that the inventory search was a
pretext for a general criminal investigation, and we do not disturb that finding.
The inventory search was reasonable under the Fourth Amendment. The district
4
court did not err in denying the motion to suppress the firearm discovered in the
car during the inventory.
IV
Lewis argues that the inventory search could not have been reasonable
because SFGO 9.06 is facially unconstitutional. Lewis did not raise this argument
in his motion to suppress in the district court, and the district court did not consider
the issue. We generally do not consider arguments raised for the first time on
appeal, AlohaCare v. Haw. Dep’t of Human Servs., 572 F.3d 740, 744 (9th Cir.
2009), and we will not do so here.
V
Because the district court properly held that there was reasonable suspicion
to detain Lewis and that the search of Lewis’s car was an inventory search, the
denial of Lewis’s motion to suppress is
AFFIRMED.
5