                                                                             FILED
                           NOT FOR PUBLICATION                                JAN 25 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 10-10534

              Plaintiff - Appellee,             D.C. No. 2:08-cr-00325-EJG-1

  v.
                                                MEMORANDUM*
CLARENCE AUSTIN HOLMES, AKA
Clarence Austin Holmes, Sr.,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Eastern District of California
                Edward J. Garcia, Senior District Judge, Presiding

                    Argued and Submitted November 30, 2011
                            San Francisco, California

Before: THOMAS and CLIFTON, Circuit Judges, and CARR, Senior District
Judge.**

       Appellant Clarence Austin Holmes appeals the denial of his motion for

suppression. We affirm. Because the parties are familiar with the facts and the

procedural history, we will not recount them here.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James G. Carr, Senior District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
      Holmes first contends that probable cause for the warrant that gave rise to the

search (which occurred as officers were approaching Holmes’ residence to execute the

warrant) depended on stale information. Staleness does not infect the probable cause

showing where the circumstances give rise to a reasonable inference that the items to

be seized are presently on the premises – as occurs, for example, where the underlying

criminal activity is ongoing and continuous. United States v. Dozier, 844 F.2d 701,

707 (9th Cir. 1988).

      Here, facts contained in the affidavit established probable cause to believe that

a gang-related shootout had occurred about five months before the warrant issued. The

affiant’s training and experience related to gang activity established a basis on which

the issuing judge could find probable cause to believe that gang members tend to keep

their weapons. This, in turn, justified the judge’s finding of present probable cause as

to the weapon which a witness at the scene of the shooting saw in the hand of a

resident of the premises designated in the warrant.

      Holmes also contends the warrant was overly broad in describing “firearms”

generally. Warrants must be as sufficiently particular as possible, considering whether

the government “was able to describe the items more particularly in light of the

information available to it at the time the warrant was issued.” Millender v. County of

Los Angeles, 620 F.3d 1016, 1024 (9th Cir. 2010) (citing United States v. Spilotro,


                                          -2-
800 F.2d 959, 963 (9th Cir. 1986) (Kennedy, J)). The statements from witnesses that

police had when the warrant was issued did not enable a more particular description,

as their descriptions of the firearms were vague and sometimes contradictory.

      In any case, even if there were deficiencies in the warrant, none were so

obvious from the face of the warrant as to make an officer’s reliance on the warrant

objectively unreasonable. United States v. Leon, 468 U.S. 897, 922 (1984). The

district court did not err in applying the good faith exception.

      Holmes argues that the district court impermissibly allowed a police officer’s

testimony about his apparent contemplation of flight as Holmes was walking across

his yard to a vehicle at the curb. The Federal Rules of Evidence do not apply to

suppression hearings. Fed R. Evid. 104(a). The police officer’s testimony was not, as

Holmes claims, “mind-reading.” It was, rather, based on her observations, experience

and perception of defendant’s actions, and therefore was proper.

      Holmes’ contentions that the police exceeded the limits of acceptable force are

also without merit. The officers’ actions in ordering Holmes to lie down, and then

handcuffing and frisking him, did not exceed the scope of a detention allowed

pursuant to the execution of a search warrant. Michigan v. Summers, 452 U.S. 692,

705 (1981). The officers’ use of handcuffs did not convert the detention into an arrest.

Meredith v. Erath, 342 F.3d 1057, 1063 (9th Cir. 2003). Even if the frisk was not


                                          -3-
authorized pursuant to a Summers detention, Holmes’ apparent contemplation of

flight, failure to respond immediately to police commands, and the gun-related nature

of the items to be seized under the warrant justified the officers’ belief that defendant

may have been armed and dangerous and thus subject to a frisk for officer safety.

Terry v. Ohio, 392 U.S. 1, 27 (1968).

      AFFIRMED.




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