NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30074
Plaintiff-Appellant, D.C. No.
1:21-cr-00066-SPW-1
v.
FERMIN JOSEPH VASQUEZ, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted March 27, 2023
Seattle, Washington
Before: NGUYEN and HURWITZ, Circuit Judges, and EZRA,** District Judge.
The government appeals a district court order suppressing a rifle and other
evidence discovered during a Terry stop of Fermin Joseph Vasquez for lack of
reasonable suspicion. We review the district court’s ruling de novo and its
underlying findings of fact for clear error. United States v. Willy, 40 F.4th 1074,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
1079 (9th Cir. 2022). We reverse and remand.
Terry v. Ohio permits a brief investigatory stop when “a police officer
observes unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot.” 392 U.S. 1, 30 (1968). Vasquez’s
behavior—as observed by 911 callers and police officers—was sufficiently
suspicious to justify a Terry stop. The 911 callers, who identified themselves,
reported that a man—later identified as Vasquez—was carrying a large firearm
wrapped in a blanket over his shoulder. They told police that Vasquez repeatedly
peeked at the gun under the blanket and tried to adjust the blanket to further
obscure the gun. The callers reported that Vasquez attempted to dodge them, and
wore a distinctive outfit—a black mechanic’s jumpsuit and a red bandana that
entirely obscured his face except for two small eyeholes. When police approached
Vasquez, they observed him doing exercise lunges and carrying a large, partially
concealed gun over his shoulder.
The government argues that the officers had reasonable suspicion to detain
Vasquez for a brief investigation because Montana law forbids possession of a
concealed weapon while intoxicated. 1 See Mont. Code Ann. § 45-8-327. We
1
We reject Vasquez’s contention that the government forfeited this argument by
failing to raise it to the district court. Claims, not arguments, are forfeited. See
United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). We have
declined to find forfeiture in similar contexts. See, e.g., United States v. Mejia, 782
2
agree. As the district court observed, “Vasquez’[s] behavior was peculiar, out-of-
place, and possibly indicative of underlying issues such as intoxication.” The
totality of the circumstances here meets the relatively low bar of reasonable
suspicion. See United States v. Arvizu, 534 U.S. 266, 274 (2002).
REVERSED AND REMANDED.
F. App’x 644, 645 (9th Cir. 2019); United States v. Guzman-Padilla, 573 F.3d 865,
877 n.1 (9th Cir. 2009).
3