874 F2d 817 United States v. Mc McBeth

874 F.2d 817

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
M.C. McBETH, Defendant-Appellant.

No. 88-1089.

United States Court of Appeals, Ninth Circuit.

Submitted* March 23, 1989.
Decided April 27, 1989.

Before FERGUSON, CYNTHIA HOLCOMB HALL and KOZINSKI, Circuit Judges.

1

MEMORANDUM**

2

Appellant M.C. McBeth appeals his conviction for possession of a firearm by a felon in violation of 18 U.S.C. app. II Sec. 1202(a)(1). McBeth now challenges the district court's denial of his suppression motion, alleging that the detaining officers continued their investigative detention of McBeth and his weapon beyond its justifiable length and scope. We affirm.

3

On the afternoon of March 29, 1986, Officers Jeff Yost and Robert Jones, Jr. of the Phoenix Police Department observed McBeth chasing another man, Alvis Vaughn, while on beat patrol at the Matthew Henson housing project. Both officers knew McBeth and Vaughn from other patrols at the project; in particular, the officers had had two "negative contacts" with McBeth, including one shooting incident, and knew that McBeth had previously been arrested for a violent felony. Responding to a wave by Vaughn, the two officers got out of their patrol car. Vaughn told them that McBeth had just threatened him with a gun because of a disputed debt. Officer Yost then noticed that McBeth, walking towards him, had a clearly visible handgun holstered in the waistband of his pants. Officer Yost called McBeth by name and told him to keep his hands away from the weapon. Yost then walked over to McBeth and removed the handgun "for [his] ... own safety."

4

When questioned by the officers, McBeth explained that he had been trying to collect a $30.00 debt owed him by Vaughn but denied threatening him with a gun. At this point, Vaughn told the officers to "just forget it," gave $30.00 to McBeth, and walked off. The officers, however, continued their investigation of McBeth. While Officer Jones watched McBeth squatting in the shade under a nearby tree, Officer Yost ran a records check on McBeth, pursuant to police department policy, to determine whether the gun had been stolen or whether McBeth had any outstanding warrants or felony convictions. This check revealed that McBeth had indeed been previously convicted of a felony. Officer Yost then impounded the handgun pending further investigation. From initial stop to impoundment, McBeth had been detained for approximately 15 minutes.

5

McBeth was subsequently indicted for violating 18 U.S.C. app. II Sec. 1202(a)(1) which prohibits felons from possessing firearms. Following the denial of his motion to suppress, McBeth pleaded guilty to violating Sec. 1202(a)(1) pursuant to a plea agreement which reserved his right of appeal on the denial of his suppression motion. The district court suspended McBeth's sentence and imposed a term of five years' probation.

6

McBeth apparently concedes that the initial seizure of his handgun by Officer Yost and his brief detention while being questioned by the officers was reasonable under the circumstances of this case.1 McBeth instead contends that the district court erred in denying his suppression motion since the seizure of the handgun continued after Vaughn had paid his alleged debt and left the area. Since the officers at that point "had no reason to believe that ... McBeth was engaged in any criminal activity [concerning the Vaughn-McBeth debt dispute]," counsel for McBeth asserts, they no longer had sufficient cause to continue detaining either McBeth or his weapon.

7

This argument is flawed in a number of respects. McBeth's characterization of the officers' investigation as limited solely to the Vaughn-McBeth debt dispute neglects the fact that, upon seizing McBeth's handgun, the officers also had reason to believe that McBeth might be carrying that weapon in violation of state or federal law. See 18 U.S.C. app. II Sec. 1202(a); Ariz.Rev.Stat.Ann. Sec. 13-3102(A)(4). Given the officers' knowledge regarding McBeth's potential felon status,2 they were clearly justified in retaining his handgun pending the outcome of the records check. See Florida v. Royer, 460 U.S. 491, 499-500 (1983) (plurality opinion) ("the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time"); Martinez v. Nygaard, 831 F.2d 822, 827 (9th Cir.1987) (same); United States v. Bautista, 684 F.2d 1286, 1290-91 (9th Cir.1982), cert. denied, 459 U.S. 1211 (1983). McBeth's potential weapons offense did not evaporate simply because Vaughn had left the scene. Moreover, safety concerns more than justified the officers' initial seizure and retention of the handgun pending the completion of their brief investigation. See United States v. Hensley, 469 U.S. 221, 233 (1985); Adams v. Williams, 407 U.S. 143, 146 (1972); Bautista, 684 F.2d at 1289 ("police conducting on-the-scene investigations involving potentially dangerous suspects may take precautionary measures if they are reasonably necessary").

8

Because the officers had reasonable cause to believe that McBeth was a felon in possession of a firearm, and used reasonable investigative means to confirm or dispel their suspicions while detaining McBeth and his weapon, the district court properly denied the district court's motion to suppress.

9

AFFIRMED.

*

This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

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

1

In any event, we find that the Vaughn's information coupled with the officers' own observations established sufficient suspicion on which to base an investigative stop. See, e.g., United States v. Cortez, 449 U.S. 411, 417 (1981); Terry v. Ohio, 392 U.S. 1, 27 (1968); Guam v. Ichiyasu, 838 F.2d 353, 355-56 (1988)

2

While the officers were not certain that McBeth's previous arrests had resulted in a felony conviction, their knowledge of his previous arrests justified a brief detention while inquiry could be made to more clearly ascertain the extent, if any, of McBeth's criminal record. See Hensley 469 U.S. at 234