                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        APR 14 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50405

                Plaintiff-Appellee,             D.C. No.
                                                2:17-cr-00728-RGK-1
 v.

ANGEL FLORES, AKA Angelberto Flores             MEMORANDUM*
Cervantes,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                       Argued and Submitted March 3, 2020
                              Pasadena, California

Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,** District
Judge.

      Angel Flores was convicted of being a felon in possession in violation of 18

U.S.C. § 922(g)(1) after ammunition was found during an investigatory stop in a car

he was driving. On appeal, Flores challenges the district court’s denial of his motion


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
to suppress the evidence found in the search of that car and statements made to the

police as a result of the stop.

      We hold that the police lacked reasonable suspicion to stop the car and that

the evidence obtained as a result of the search should have been suppressed. See

United States v. Colin, 314 F.3d 439, 446-47 (9th Cir. 2002); see also United States

v. Crawford, 372 F.3d 1048, 1054 (9th Cir. 2004) (en banc) (“It is well established

that the Fourth Amendment’s exclusionary rule applies to statements and evidence

obtained as a product of illegal searches and seizures.”). We therefore reverse the

district court’s denial of the motion to suppress, vacate Flores’s conviction, and

remand for further proceedings.

      Flores’s car was stopped about twenty minutes after Los Angeles police

received several 911 calls reporting that gunshots had been heard at around 2:10 a.m.

in the San Pedro neighborhood. One caller, a security guard, stated during a call

made at 2:25 a.m. that, about ten to fifteen minutes earlier, he had heard three or four

gunshots coming from the direction of Mesa Street and 6th Street. After hearing the

gunshots, the security guard got in his car to leave the area and saw a “newer” gray

Chevrolet Camaro or Dodge Challenger with tinted windows “speeding” down the

street. The guard said that the gray car followed him until he reached the on-ramp

to the Harbor Freeway. Shortly after the security guard’s call, a police helicopter

spotted Flores’s car, a gray Camaro, half a mile to a mile away from the locations in


                                           2
which shots had been reported and approximately 1.6 miles from the Harbor

Freeway entrance. Patrol officers promptly stopped the car, and the search at issue

ensued after Flores told the officers there was a weapon in his car.

      “The Fourth Amendment permits investigatory stops if the facts known to the

officers established ‘reasonable suspicion to believe that criminal activity may be

afoot.’” United States v. Magallon-Lopez, 817 F.3d 671, 674 (9th Cir. 2016)

(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). Reasonable suspicion

“is formed by specific, articulable facts which, together with objective and

reasonable inferences, form the basis for suspecting that the particular person

detained is engaged in criminal activity.” United States v. Rojas-Millan, 234 F.3d

464, 468-69 (9th Cir. 2000) (citation omitted). The government contends that the

following factors justified the investigatory stop: (1) Flores’s car was a gray

Chevrolet Camaro, consistent with the two makes and models the security guard

identified as driving away from the direction in which the security guard had heard

the gunfire; (2) Flores’s car was stopped approximately 20 minutes after the

shootings were first reported and approximately half a mile from one area of reported

gun fire; and (3) the stop occurred at around 2:30 a.m., a time when relatively fewer

cars are on the road than during daylight hours. We assume that the security guard’s

911 call was reliable but find that these facts do not suffice to create “a particularized

and objective basis for suspecting” Flores “of criminal activity.” Navarette v.


                                            3
California, 572 U.S. 393, 396-97 (2014) (quoting United States v. Cortez, 449 U.S.

411, 417-18 (1981)).

      Although Flores’s car fit the general description given by the security guard,

the government offered no evidence that gray Camaros or Challengers are unusual

in the area where the stop was made, that Flores’s car was the only car matching this

description in the area, that Flores’s car matched any of the more specific identifying

features mentioned by the security guard (tinted windows, a newer model), or that

there was anything otherwise suspicious about how or where it was driving when

stopped. See United States v. Carrizoza-Gaxiola, 523 F.2d 239, 241 (9th Cir. 1975)

(“Driving a car as common as a Ford LTD is not suspicious.”). The car was half a

mile away from the closest area in which gunshots had been reported, approximately

20 minutes after the gunshots were first reported, and heading in the opposite

direction of the car identified by the security guard. See United States v. Manzo-

Jurado, 457 F.3d 928, 938 (9th Cir. 2006) (in determining whether there was

reasonable suspicion, courts must take in “both factors weighing for and against

reasonable suspicion”).

      There are even fewer facts connecting the passengers of the gray car with the

shooter.1 None of the four 911 callers saw a shooter get into a car; in fact, one of


1
       Although some of the 911 callers offered descriptions of the race, age range,
sex, and number of the suspected shooters, the government conceded on appeal that


                                          4
them identified seeing the shooter flee on foot. And, the security guard who

identified the gray Camaro or Challenger merely stated that he saw the car speed

away from the area shortly after gunshots were fired. Speeding away from an area

where gunshots were heard would surely be the “rational reaction” of an innocent

bystander; indeed, it is apparently the very action that the security guard took.

United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1122 (9th Cir. 2002) (noting

that “driving behavior” can “not be relied upon to justify reasonable suspicion” of

an unrelated offense if it would “place motorists in a damned if you do, equally

damned if you don’t situation” (internal quotation markets and citation omitted));

see also Manzo-Jurado, 457 F.3d at 935 (“Seemingly innocuous behavior does not

justify an investigatory stop unless it is combined with other circumstances that tend

cumulatively to indicate criminal activity.”). Because the totality of these factors

does not establish “a particularized and objective basis for suspecting” Flores of

involvement in the shooting, his motion to suppress should have been granted.

Navarette, 572 U.S. at 396-97 (citation omitted).2


these factors “cannot be counted in the reasonable-suspicion calculus because [the]
officers were unaware that defendant and his passenger matched some of those
descriptions until after officers stopped defendant’s gray Chevrolet Camaro.” See
Magallon-Lopez, 817 F.3d at 675 (“[T]he facts justifying the stop must be known to
officers at the time of the stop.”).
2
      The government has not requested a remand to further develop the factual
record and we decline sua sponte to order that unusual relief. And, because the


                                          5
      REVERSED IN PART, VACATED and REMANDED.




government has not suggested that additional facts exist that would support the
challenged seizure, we decline to speculate about what they might be.

                                      6
United States v. Angel Flores, No. 18-50405                              FILED
                                                                         APR 14 2020
KORMAN, District Judge, dissenting:
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

      I begin with an overview of key relevant facts. Shortly after 2 a.m. on October

15, 2017, the LAPD received a series of four 911 calls reporting shots fired in the

San Pedro neighborhood. The most significant call came from a security guard, who

provided his telephone number, and who told the 911 operator that between 2:10 and

2:15, he was on foot, patrolling outside 407 West 7th Street, when he heard four

shots coming from the direction of Mesa Street and 6th Street. He tried to get back

into the building, but the door was locked. The guard had gotten in his car, which

was parked nearby, when he heard tires screeching and saw what he believed to be

a newer Gray Camaro or Challenger with tinted windows quickly turning the corner,

going “60 down a pedestrian street.” Significantly, he told the 911 operator that he

thought the shooter was in car, and that it “trailed [him] til [he] got on the Harbor

Freeway.”

      Approximately 20 minutes later, a LAPD helicopter unit, who had been

informed by the dispatcher that the suspect might be driving a gray Camaro, spotted

a gray Camaro traveling “at a high rate of speed” at 18th and Mesa—roughly half a

mile from 6th and Mesa, where the security guard said he heard gunshots coming

from—and directed two patrol officers to stop the car.


                                         1
      The majority concedes the reliability of the 911 calls, as it must. See Navarette

v. California, 572 U.S. 393, 397-98 (2014). Nonetheless, it holds the LAPD police

“lacked reasonable suspicion to stop [Flores’s] car and that the evidence obtained as

a result of the search should have been suppressed.” Because I believe the balance

of the evidence in this case tips in favor of a finding of reasonable suspicion, I am

unable to join in the majority’s holding.

      In my view, the facts of this case compel the conclusion that there was

reasonable suspicion. The Supreme Court has held that reasonable suspicion requires

“considerably less than proof of wrongdoing by a preponderance of the evidence.”

United States v. Sokolow, 490 U.S. 1, 7 (1989). A “preponderance of the evidence”

is synonymous with the “more likely than not” standard necessary for a plaintiff to

prevail in a civil case. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,

329 (2007); Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983). Thus,

reasonable suspicion could have been established even it was just as likely (or even

more likely), based on the information known to the police at the time, that the gray

Camaro stopped by the LAPD was not the shooter’s car.

      Against this backdrop, I turn to the specific defects in the evidence that the

majority relies on in support of its holding. The majority suggests there was

insufficient evidence that Flores’s car was the same car described by the security

guard. Next, the majority argues there was an insufficient nexus between the car
                                            2
described by the security guard and the suspected criminal activity. Because I

disagree on both points, I respectfully dissent.

      First, the majority argues that “the security guard who identified the gray

Camaro or Challenger merely stated that he saw the car speed away from the area

shortly after gunshots were fired,” and that, “[s]peeding away from an area where

gunshots were heard would surely be the ‘rational reaction’ of an innocent bystander;

indeed, it is apparently the very action that the security guard took.” This analysis of

the record understates the information the security guard provided. Specifically, he

said that the car came careening around the corner from the direction of the gunshots

at approximately 60 miles per hour, and that in his on-the-scene judgment, the

shooter was in the car. In the face of these details, the willingness of the majority to

conjure such an innocent explanation cannot be reconciled with the basic principle

that reasonable suspicion “need not rule out the possibility of innocent conduct.”

Arvizu, 534 U.S. 266, 277 (2002). Nor can it be reconciled with the common sense

that undergirds the reasonable suspicion standard. See Kansas v. Glover, 589 U.S.

___ (2020) at 4; Sokolow, 490 U.S. at 8.

      Second, the majority argues that the time and space separating the security

guard’s account from the siting of Flores’s Camaro, and the direction it was

traveling, undermines reasonable suspicion. I disagree. The fact that Flores, when

stopped, was traveling in the opposite direction of the car described by the security
                                           3
guard, cannot undermine reasonable suspicion. After all, in the 20 minutes that

elapsed after the security guard reported seeing the gray Camaro, and before the

officers stopped Flores, there was more than enough time for Flores to have turned

around from the Harbor Freeway entrance—a mile away from where the security

guard reported gunshots—and drive closer to the scene of the suspected shooting.

Indeed, when spotted by the LAPD helicopter, Flores was not just driving a gray

Camaro, but was also driving it at “a high rate of speed,” consistent with the security

guard’s account. This undermines the majority’s assertion that there was nothing

“otherwise suspicious about how or where it was driving when stopped.”

      Under these circumstances, the alleged gaps in the record do not undermine

the inference that Flores’s car was the shooter’s car for purposes of our reasonable

suspicion analysis. But even if they did, we should not reverse a conviction of a

defendant who was inarguably a felon in possession of a weapon without remanding

the case to develop the record while we retain jurisdiction of the appeal. Indeed, we

have done so in a number of criminal cases involving collateral issues unrelated to

the guilt or innocence, and particularly in cases like this, where the district court did

not thoroughly address the facts at issue. See, e.g., United States v. Angle, 761 F.

App’x 775, 777 (9th Cir. 2019), cert. denied, 140 S. Ct. 90 (2019); United States v.

Dharni, 757 F.3d 1002 (9th Cir. 2014); United States v. Ahrndt, 475 F. App’x 656,

658 (9th Cir. 2012). Cf. United States v. Wright, 625 F.3d 583, 604 (9th Cir. 2010)

                                           4
(“remand for factual findings is required where it is impossible to determine the basis

for the district court's denial of a motion to suppress.”).

      Perhaps the most apposite case is Ahrndt, a search-and-seizure case where,

sua sponte, we remanded for further fact-finding to resolve questions the panel

considered “beneficial in determining whether Ahrndt had a reasonable expectation

of privacy in his computer files,” 475 F. App’x at 658, an issue as to which he had

the burden of proof. See Rakas v. Illinois, 439 U.S. 128, 132 (1978). In Arhndt, the

panel outlined the specific factual issues the district court was ordered to resolve on

remand, while the panel retained jurisdiction of the appeal. I see no reason to grant

Flores the windfall of a remedy unrelated to his guilt or innocence, especially given

his own barebones suppression motion below, which made no mention of the

evidentiary gaps discussed above.

      I respectfully dissent.




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