United States of America, Plaintiff-appellee, v. Leonard Martin Rubidoux, Defendant-appellant, 68 F.3d 482 (9th Cir. 1995)

Before: BROWNING and PREGERSON, Circuit Judges, and TANNER,^*  District Judge

MEMORANDUM^** 

We affirm Leonard Martin Rubidoux's conviction for armed bank robbery.

Accepting, arguendo, Rubidoux's contention that his encounter with Detective Spidle constituted a nonconsensual seizure, we nonetheless agree with the district court's conclusion that Detective Spidle had probable cause to arrest Rubidoux. Probable cause to arrest exists when "the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed ... a crime." United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989). The fact that Detective Spidle recognized Rubidoux in the bank surveillance photos easily conferred probable cause. Because Detective Spidle would have been justified in arresting Rubidoux for the bank robbery, it follows that he did not violate Rubidoux's Fourth Amendment rights by taking the less intrusive approach of photographing him and then letting him go.

B. Expert Testimony Regarding Eyewitness Identification

The district court did not err by refusing to admit the proffered expert testimony of Dr. Kathy Pezdek of the Claremont Graduate School of Psychology regarding the accuracy of eyewitness identification. Because the district court concluded that Dr. Pezdek's testimony would not assist the jury, it did not abuse its discretion in rejecting the testimony. See United States v. Rincon, 28 F.3d 921, 923 (9th Cir. 1994).

The district court did not abuse its discretion in finding the testimony of John Bowlin relevant.¹  Evidence is relevant if it tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Bowlin's testimony indicated that Rubidoux knew how to ride a bicycle, the robber's chosen means of escape, and tended to explain the discrepancy between Rubidoux's clean-shaven appearance and the surveillance photos, which indicated the bank robber had a moustache. The tattoo testimony was relevant to the government's theory that the robber had chosen to wear a long-sleeved shirt on a hot day in order to hide physical features that would have made it easier to identify him. The tattoo evidence was not unduly prejudicial; Rubidoux's assumption that jurors would equate tattoos with criminal behavior is highly suspect.

Finally, we reject Rubidoux's contention that there was insufficient evidence to support his conviction. In addition to Bowlin's testimony, the jury was provided with bank surveillance photos that showed Rubidoux leaving the bank, and the teller who was robbed identified the man in the surveillance photo as the robber. The bank's branch manager, moreover, provided police with an accurate description of Rubidoux immediately following the robbery and later picked him out of a photospread.

AFFIRMED.