                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         JUN 28 2019
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

   UNITED STATES OF AMERICA,                         No.   18-30099

                    Plaintiff-Appellee,              D.C. No.
                                                     CR-17-16-BU-DLC
     v.

   BENJAMIN CALVIN BROOKS,                           MEMORANDUM*

                    Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Montana
                   Dana L. Christensen, District Judge, Presiding

                        Argued and Submitted June 4, 2019
                                Portland, Oregon

Before: MURGUIA and HURWITZ, Circuit Judges, and STATON,** District
Judge.

      Benjamin Brooks pleaded guilty to being a felon in possession of a firearm,

reserving his right to appeal the district court’s denial of his motion to suppress the

evidence gathered during the stop and search of his vehicle. We review denials of



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Josephine L. Staton, United States District Judge for
the Central District of California, sitting by designation.
motions to suppress de novo, United States v. Dreyer, 804 F.3d 1266, 1271 (9th

Cir. 2015) (en banc), and the district court’s factual findings for clear error, United

States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006). For the following

reasons, we affirm.

      1. Brooks was not placed in custody by the traffic stop so as to be entitled to

Miranda warnings. See Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (noting

that while a driver temporarily detained pursuant to an “ordinary” traffic stop is not

in custody, if he is “subjected to treatment that renders him ‘in custody’ for

practical purposes, he will be entitled to the full panoply of protections prescribed

by Miranda”). Factors to be considered in the custody inquiry include: “(1) the

language used to summon the individual; (2) the extent to which the defendant is

confronted with evidence of guilt; (3) the physical surroundings of the

interrogation; (4) the duration of the detention; and (5) the degree of pressure

applied to detain the individual.” United States v. Hayden, 260 F.3d 1062, 1066

(9th Cir. 2001). “Based upon a review of all the pertinent facts, the court must

determine whether a reasonable innocent person in such circumstances would

conclude that after brief questioning he or she would not be free to leave.” United

States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981).

      Here, analysis of the Hayden factors supports the district court’s

determination that Brooks was not placed in custody. While the language used to


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summon Brooks may have been loud and aggressive, it was reasonable considering

Brooks’s failure to promptly comply with orders to roll down his window; Brooks

was never confronted with any evidence of his guilt; although Brooks was asked to

sit in the patrol car while the trooper wrote the citation, he sat in the front seat and

was not restrained; and the entire stop lasted only 33 minutes. Although the

trooper rested his hand on his gun and conducted a Terry frisk, that is not enough,

by itself, to turn the traffic stop into a custodial interaction. See id. at 1236

(“Strong but reasonable measures to insure the safety of the officers or the public

can be taken without necessarily compelling a finding that the suspect was in

custody.”). Moreover, Brooks was repeatedly told he was not under arrest and left

the scene voluntarily. See United States v. Crawford, 372 F.3d 1048, 1052, 1060

(9th Cir. 2004) (en banc) (“Perhaps most significant for resolving the question of

custody, Defendant was expressly told that he was not under arrest . . . .”).

      2. The trooper had reasonable suspicion to prolong the traffic stop. “[A]

police stop exceeding the time needed to handle the matter for which the stop was

made violates the Constitution’s shield against unreasonable seizures,” Rodriguez

v. United States, 135 S. Ct. 1609, 1612 (2015), but law enforcement may prolong a

traffic stop to investigate criminal activity so long as the prolongation is supported

by independent reasonable suspicion, see United States v. Evans, 786 F.3d 779,

788 (9th Cir. 2015). “[R]easonable suspicion exists when an officer is aware of


                                            3
specific, articulable facts which, when considered with objective and reasonable

inferences, . . . arouse a reasonable suspicion that the particular person being

stopped has committed or is about to commit a crime.” United States v. Montero–

Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc). “When reviewing an

officer’s reasonable suspicion, we must look at the totality of the circumstances.”

United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013) (en banc)

(internal quotation marks omitted) (quoting United States v. Arvizu, 534 U.S. 266,

273 (2002)).

      During the course of the traffic mission, the following facts came to the

trooper’s attention: Brooks pulled over in an unusual manner and failed to

promptly obey orders to roll down his window; there was an apparent spent shell

casing (later determined to be live ammunition) on the floor of Brooks’s rental

vehicle; Brooks made inconsistent statements regarding his travels; and dispatch

reported Brooks to be a violent offender. When viewed under the totality of the

circumstances, these facts provided the trooper with sufficient independent

reasonable suspicion to prolong the traffic stop past its original mission. Brooks

does not contest that probable cause (including the results of a dog sniff) arose

both during and after the detention sufficient to allow the issuance of a warrant to

search the car.

      AFFIRMED.


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