                           NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                      NOV 17 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No.    15-10592

                  Plaintiff-Appellee,            D.C. No.
                                                 3:15-cr-00205-WHA-1
   v.

 JAQUAN DESHAWN TAYLOR,                          MEMORANDUM*

                  Defendant-Appellant.

                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                          Submitted November 15, 2016**
                             San Francisco, California

Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and EZRA,***
District Judge.

        Defendant-Appellant Jaquan Taylor appeals his conviction, following a



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
stipulated-facts bench trial, for being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g). Taylor argues that the district

court should have suppressed the gun and ammunition that slipped from his

waistband when a police officer tackled Taylor to the ground after he suddenly ran

away from the police. Taylor contends that the gun and ammunition were fruits of

an unconstitutional seizure because the police did not have reasonable suspicion to

stop him. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1. The government argues for the first time on appeal that Taylor was not

“seized” for purposes of the Fourth Amendment before the gun and ammunition

fell from his waistband and, therefore, that those items cannot be fruits of an illegal

seizure. The government waived this argument by failing to present it to the

district court. United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991).

      2. Reasonable suspicion requires a “particularized and objective basis for

suspecting the particular person stopped of criminal activity” under the “totality of

the circumstances.” United States v. Cotterman, 709 F.3d 952, 968 (9th Cir. 2013)

(en banc) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).

Headlong flight, like other nervous, evasive behavior, can support reasonable

suspicion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). The characteristics of a

particular location are also “relevant contextual considerations.” See id. We


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review reasonable suspicion determinations de novo, but we review the district

court’s underlying factual findings for clear error, “giving ‘due weight to

inferences drawn from those facts by resident judges and local law enforcement

officers.’” Cotterman, 709 F.3d at 968 (quoting Ornelas v. United States, 517 U.S.

690, 699 (1996)).

      Here, the district court concluded that the officers had reasonable suspicion

based on the following findings: (1) Taylor “sudden[ly] sprinted away from the

police,” (2) after the police approached in a civil and non-threatening manner,

without guns drawn, in a well-lit area where lots of people were milling about,

(3) immediately after one of the individuals with Taylor declared that no one in the

group was on parole and the police could not search them. The district court also

found that a funeral for a local gang member had occurred earlier that day and

concluded that a reasonable officer could therefore infer that tensions in the

neighborhood might be high and people out at night might be concealing

weapons.1 Moreover, although the police approached and questioned a group of

six to ten men, Taylor was the only one who took off running. Based on these

facts, we reject Taylor’s argument that the police provoked him into flight. And


1
  Taylor claims that “no officer testified in support” of this conclusion at the
hearing and that “there is no factual basis for this portion of the district court’s
order.” Although Taylor is correct that no officer specifically attested to drawing
that inference, the record contained sufficient facts for the district court to conclude
that a reasonable officer could have done so.

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we conclude that, under these circumstances, a reasonable officer could infer that

Taylor’s flight was suspicious and thus could detain him to investigate further.

      To the extent Taylor argues for a per se rule that an African-American

citizen’s flight from the police can never contribute to reasonable suspicion, that

argument is foreclosed by Illinois v. Wardlow, 528 U.S. 119 (2000). That fear on

the part of African-Americans (or others) might cause them to innocently run from

the police does not preclude the possibility that flight could be suspicious in some

circumstances, such as those here. United States v. Valdes-Vega, 738 F.3d 1074,

1080 (9th Cir. 2013) (en banc) (“Even innocent, noncriminal acts can foster

reasonable suspicion in the total context.”).

AFFIRMED.




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