Unpublished Disposition, 916 F.2d 717 (9th Cir. 1990)

No. 90-30083.

United States Court of Appeals, Ninth Circuit.

Before HUG and NELSON, Circuit Judges, and WALKER,^**  District Judge.

MEMORANDUM^*** 

OVERVIEW

Appellant-defendant Darrell Warren ("Warren") appeals his jury conviction for possession of more than five grams of cocaine base, possession of a firearm during a drug trafficking crime and being a felon in possession of a firearm, in violation of 21 U.S.C. § 844(a) (1988); 18 U.S.C. §§ 924(c) (1), 922(g) (1), and 924(a) (2) (1988). On appeal, Warren contends the trial court erred in denying his motion to suppress evidence seized incident to his arrest. Further, Warren contends the trial court erred in admitting expert testimony with regard to the weight and identity of the substance seized.

DISCUSSION

Warren challenges the denial of his motion to suppress evidence seized incident to his arrest. He contends law enforcement officers arrested him without probable cause. The determination of the existence of probable cause to arrest is a mixed question of law and fact that is reviewed de novo. United States v. Lindsey, 877 F.2d 777, 783 (9th Cir. 1989).

To determine whether probable cause to arrest existed, it is useful first to determine the point at which the arrest occurred. United States v. Carrillo, 902 F.2d 1405, 1411 (9th Cir. 1990). " [W]hether an arrest has occurred depends upon an objective, not subjective, evaluation of what a person innocent of a crime would have thought of the situation, given all the factors involved." United States v. Johnson, 626 F.2d 753, 755 (9th Cir. 1980), aff'd, 457 U.S. 537 (1982). Determining whether a stop is an arrest or an investigatory stop is a mixed question of law and fact that is reviewed de novo. See, e.g., United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988).

To make an investigatory stop, police must have a founded suspicion of criminal activity. United States v. Bautista, 684 F.2d 1286, 1288 (9th Cir. 1982), cert. denied, 459 U.S. 1211 (1983). This is a lesser standard than probable cause needed to make an arrest. Adams v. Williams, 407 U.S. 143, 145-46 (1972); see also United States v. Sokolow, 104 L. Ed. 2d 1, 10 (1989).

Warren argues that the law enforcement officers' actions when they initially confronted him would lead a reasonable person to believe he was not free to leave. He contends an arrest occurred when the officers parked their vehicle behind Warren's, blocking it in, and shouted, "Sheriff's office! We have a search warrant! Get your hands on top of the car!" However, we have held under similar circumstances that an investigatory stop does not necessarily become an arrest merely because law enforcement officers momentarily restrict a person's freedom of movement. United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.) (ordering defendants to put hands on top of car and then drawing guns does not convert a Terry stop into an arrest), cert. denied, 476 U.S. 1185 (1986). Nor does an investigatory stop become an arrest where officers use force, if it occurs under circumstances justifying concern for the officers' personal safety. United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987) (Terry stop where officers forced suspects to exit car and lie down on pavement at gunpoint).

We conclude that the initial stop of Warren was a mere investigatory stop. The basis for the founded suspicion necessary to support this stop includes the officers' knowledge that a police informant had identified Warren as a drug dealer; Warren recently had been shot in a drug-related matter; and Warren had sold crack to a police informant during police-supervised controlled buys on three previous occasions. Additionally, the officers went to Warren's apartment pursuant to a warrant to search his apartment. As the warrant was being executed, one officer advised the other officers that Warren was getting into his vehicle. Therefore, we find sufficient founded suspicion to stop Warren.

The officers' conduct in making the stop did not rise to the level of an arrest. Under the circumstances, the officers' request that Warren place his hands on top of the car was a reasonable precautionary measure to ensure their safety. Warren had been involved in a drug-related shooting. See, e.g., United States v. Post, 607 F.2d 847, 851 (9th Cir. 1979) (noting a significant relationship between drug-related crime and violence). The blocking of Warren's vehicle with the law enforcement officer's car did prevent Warren from driving away, but the momentary restriction of a person's freedom of movement does not convert an investigatory stop into an arrest. Greene, 783 F.2d at 1367. The officers did not have their guns drawn, and Sergeant Dunbar testified he was stopping Warren for identification purposes only. The length of the entire confrontation lasted 3-5 seconds.

We next must determine whether there was sufficient probable cause to make the arrest. The test for probable cause to arrest is whether the facts and circumstances known to the arresting officer are sufficient to warrant a prudent person to believe the suspect has committed, is committing, or is about to commit a crime. United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989), cert. filed, No. 89-7183 (March 1990).

We conclude that sufficient probable cause to arrest existed. This is based on the officers' knowledge of Warren's past drug-related activity and the baggie of cocaine Officer Dunbar observed at Warren's feet. Further, when Officer Dunbar instructed Warren to place his hands on top of his car, Warren responded by reaching inside his jacket pocket. Under the circumstances, sufficient probable cause existed to arrest Warren.

In sum, we find that the initial stop of Warren was an investigatory stop supported by founded suspicion. The stop ripened into an arrest supported by probable cause after the officers observed the baggie of cocaine at Warren's feet.

Warren contends that the district court erred in admitting expert testimony as to the weight and identity of the substances seized. Specifically, Warren argues that the Government did not lay a proper foundation for the accuracy and reliability of the equipment used to weigh and identify the substances. We review the district court's admission of expert testimony for abuse of discretion. People of the Territory of Guam v. Reyes, 879 F.2d 646, 649 (9th Cir. 1989).

Warren does not object to the witness's qualifications as an expert. Nor does Warren object to the scientific principles used to identify and weigh the substances. Warren's objection is that the expert witness did not test the infrared spectrophotometer used in the instrumental test, nor did she test the metler balance used to weigh the substance, immediately before and after she analyzed the substances. The witness testified that she periodically tests the equipment, but she could not testify exactly when this was last done.

Since the witness was a qualified expert, Warren's objection goes to the weight of the evidence, not the admissibility; therefore, we reject this argument. See United States v. Gwaltney, 790 F.2d 1378, 1383 (9th Cir. 1986) ("Criticism of the application of a valid test in a particular instance bears on weight, not admissibility."), cert. denied, 479 U.S. 1104 (1987); United States v. Fleishman, 684 F.2d 1329, 1336 (9th Cir.) (handwriting expert's testimony relates to the weight, not admissibility, of evidence), cert. denied, 459 U.S. 1044 (1982). Warren conducted an extensive cross-examination of the witness in the presence of the jury regarding the controls in place to ensure the reliability of the equipment. The jury was properly instructed to give the expert testimony such weight as it deserved. Gwaltney, 790 F.2d at 1382. The district court did not abuse its discretion in admitting the expert testimony. See also United States v. Sanchez, 829 F.2d 757, 759 (9th Cir. 1987) (court rejects similar argument that government did not present evidence to show that infrared device was functioning accurately).

III. Motion to Dismiss for Insufficiency of Evidence

We conclude that the expert testimony was properly admitted, which together with the other evidence produced was sufficient for conviction under the standard of Jackson v. Virginia, 443 U.S. 307, 319 (1979).

AFFIRMED.