Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 572 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellant,v.Douglas Ramon MONCADO, Defendant-Appellee.

No. 87-5340.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 2, 1988.Decided June 30, 1988.

Before FLETCHER, FARRIS, and PREGERSON, Circuit Judges.


MEMORANDUM* 

The government appeals from a pretrial suppression order. We have jurisdiction pursuant to 18 U.S.C. § 3731.

The government claims error in the district court's finding that Officer Prola could not have seen a "glint" of metal in Moncado's pocket. We review this finding under the clearly erroneous standard. United States v. Lewis, 833 F.2d 1380, 1384 (9th Cir. 1987). There was a plethora of evidence in the record, both testimonial and physical, involving the jacket, the set of keys, the lighting, and the relative positions of Officer Prola and Moncado--all of which went to the question of whether the officer could have seen a glint. We are unable to find clear error in the court's factual finding that he could not have seen a glint. Moreover, the district court did not err in supplementing the evidentiary record with an inspection of the keys and jacket. This inspection, conducted for the limited purpose of gauging the depth of the jacket pocket, was wholly unlike the types of out-of-court experiments involving extra-record material that courts have found unduly prejudicial. Compare, e.g., United States v. Castello, 526 F. Supp. 847, 849-51 (W.D. Tex. 1981).

We have undertaken a critical examination of the list of facts cited by the government in support of its claim that Officer Prola had "reasonable suspicion" to frisk Moncado. See United States v. Cortez, 449 U.S. 411, 417-18 (1981); United States v. Erwin, 803 F.2d 1505, 1509-11 (9th Cir. 1986). The government's facts are too subjective to have "reasonably warrant [ed] the intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968). Nothing in the behavior of Moncado, the passenger in a car stopped on account of the driver's traffic violation, gave the officer "independent reason to suspect criminal activity and present danger." Pennsylvania v. Mimms, 434 U.S. 106, 110 n. 5 (1977) (per curiam).

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 Circuit Rule 36-3