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United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Deauntre MONTGOMERY, Defendant-Appellant.

No. 18-10217

Decided: October 24, 2019

Merry Jean Chan, Assistant U.S. Attorney, Jonas Lerman, Assistant U.S. Attorney, DOJ-USAO, San Francisco, CA, for Plaintiff-Appellee Gabriela A. Bischof, Assistant Federal Public Defender, Todd M. Borden, FPDCA - Federal Public Defenders Office, San Francisco, CA, for Defendant-Appellant


Before: THOMAS, Chief Judge, and HAWKINS and BADE, Circuit Judges.

Deauntre Montgomery appeals his conviction pursuant to 18 U.S.C. § 922(g)(1) for possessing a firearm and ammunition as a convicted felon and, specifically, the district court’s denial of his motion to suppress a handgun discovered during a stop and frisk. We affirm.

We review reasonable suspicion determinations de novo and the findings of historical facts underlying that determination for clear error. United States v. Valdes-Vega, 738 F.3d 1074, 1077 (9th Cir. 2013) (en banc) (citation omitted). In doing so, we afford “due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id. (quotations and citation omitted).

Defendant concedes that the officers had reasonable suspicion that he had engaged in criminal activity, justifying his initial detention under Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He challenges only whether the officers established reasonable suspicion for the subsequent frisk. We assess the reasonableness of a Terry frisk under the totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).

Here, the district court identified a number of factors supporting the frisk, the most important of which was the two officers’ testimony that the defendant’s hand and arm movements led them to independently and simultaneously suspect that the defendant was concealing contraband or a weapon. The district court credited their testimony, noting that the differences in their descriptions of the defendant’s actions did not make their testimony unreliable. Rather, the court credited the officers’ independent and simultaneous conclusions that the movement they saw appeared suspicious and indicated concealment of a weapon or contraband in the defendant’s waistband. This factor, coupled with the other factors cited by the district court, justified its conclusion that there was reasonable suspicion for the frisk under the totality of the circumstances. Given the record and the deference we owe to the inferences drawn by the district court and the on-scene officers, see Valdes-Vega, 738 F.3d at 1077, there was no reversible error in the district court’s decision to deny the suppression motion.


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