Unpublished Disposition, 931 F.2d 61 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 931 F.2d 61 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Robert C. SMITH, Defendant-Appellant.

No. 90-10346.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1991.* Decided April 23, 1991.

Before POOLE, D.W. NELSON and NOONAN, Circuit Judges.


Robert C. Smith appeals his conviction, following a jury trial, for driving under the influence of alcohol in violation of California Vehicle Code Sec. 23152(a), and resisting peace officers in the discharge of their duties, in violation of California Penal Code Sec. 148, and the Assimilative Crimes Act (ACA), 18 U.S.C. § 13. Smith contends that the district court erred by affirming the Magistrate's denial of his motion to suppress statements he made near the time of his arrest and the result of his field sobriety test because the officers who stopped his vehicle did not have a founded suspicion to stop him and because he was seized in violation of his right to freedom of speech. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review the denial of a motion to suppress de novo. United States v. Thomas, 844 F.2d 678, 680 (9th Cir. 1988).

"The [ACA] ... subjects persons to federal prosecution in federal court for violations of criminal statutes of the state in which the federal lands are located. The ACA transforms a crime against the state into a crime against the federal government." United States v. Kiliz, 694 F.2d 628, 629 (9th Cir. 1982) (citation and footnote omitted).

* Founded Suspicion to Stop Smith's Vehicle

We review the existence of founded suspicion de novo. United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989; United States v. Thomas, 844 F.2d 678, 680 (9th Cir. 1988).

A police officer may not stop a vehicle even for the limited purpose of questioning its occupants unless the officer has a founded suspicion of criminal conduct. United States v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989). Founded suspicion exists when an officer is aware of specific articulable facts that, together with rational inferences drawn from them, reasonably warrant a suspicion that the person to be detained has committed or is about to commit a crime. United States v. Cortez, 449 U.S. 411, 416-18 (1981); United States v. Robert L., 874 F.2d 701, 703 (9th Cir. 1989). Traffic violations, no matter how common, constitute criminal conduct sufficient to provide officers with founded suspicion for a brief investigatory stop of the vehicle. United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir. 1985).

Here, McClellan Air Force Base Security Officers Jeffrey George and David Katz observed Smith drive his vehicle through a stop sign and proceed at a speed above the legal limit. These traffic violations were sufficient to give the officers a founded suspicion to initiate the stop of Smith's vehicle. See Fouche, 776 F.2d at 1403.


Probable Cause to Arrest Smith

The existence of probable cause to arrest is a mixed question of law and fact, which we review de novo. United States v. Pinion, 800 F.2d 976, 979 (9th Cir. 1986). The findings of fact underlying the probable cause determination are reviewed for clear error. Id.

A warrantless arrest must be supported by probable cause. United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989). Probable cause to arrest exists where, at the time of the arrest, the officer is aware of facts and circumstances sufficient to cause a prudent person to believe that the person arrested has committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964); United States v. Smith, 802 F.2d 1119, 1123 (9th Cir. 1986). "Probable cause may be based on the collective knowledge of all of the officers involved in the investigation and all of the reasonable inferences that may be drawn therefrom." Hoyos, 892 F.2d at 1392.

Here, Officers George and Katz observed Smith run a stop sign, drive over the speed limit and fail to stop when Officer George turned on the patrol vehicle's overhead lights. As Smith attempted to leave the base, he drove towards Officer Jeffrey Aldal who had been told by Officer George to try and stop Smith's vehicle. Officer Aldal stepped out into the lighted path of Smith's vehicle wearing a reflective sash and carrying a lighted flashlight waving his arms to try and stop the vehicle. Smith drove towards Officer Aldal at a high rate of speed forcing Aldal to jump out of the way to avoid being hit. Both Officers Aldal and George detected a strong odor of alcohol on Smith's breath when they encountered him during the initial stop. During this encounter Smith was very belligerent and combative, continuously screaming obscenities at the officers. These facts and circumstances, considered together, were sufficient to cause a prudent person to believe that Smith had committed or was committing a crime. See Hoyos, 892 F.2d at 1392-93; United States v. Al-Azzawy, 784 F.2d 890, 894 (9th Cir. 1985); Padilla v. Meese, 184 Cal. App. 3d 1022, 1027 (1986); Cal.Veh.Code Sec. 23152(a).



The panel unanimously finds this case suitable for disposition 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 Circuit R. 36-3