                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 17 2012

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-50322

              Plaintiff - Appellee,               D.C. No. 8:10-cr-00162-CJC-1

  v.
                                                  MEMORANDUM *
JESSE ALEXANDER HERNANDEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                        Argued and Submitted March 7, 2012
                               Pasadena, California

Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.

       Jesse Hernandez appeals from the district court’s denial of his motion to

suppress evidence, after which he entered a conditional guilty plea to possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). We reverse. Because the parties

are familiar with the history of this case, we need not recount it here.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                             I

          Hernandez has standing to challenge the disputed search and seizure. The

government contends that his probationary status deprives him of standing.

However, a probation search condition permits law enforcement to perform a

search with less than probable cause or reasonable suspicion “only if the police had

advance knowledge that the search condition applied before they conducted the

search.” United States v. Caseres, 533 F.3d 1064, 1075-76 (9th Cir. 2008). It is

undisputed in this case that the officers had no prior knowledge of Hernandez’s

status.

                                            II

          Because it was not a probationary search, the search conducted in this case

was valid only if the officers had reasonable suspicion that Hernandez was

involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968). To determine

whether there was reasonable suspicion to detain an individual for questioning,

courts “must consider the totality of the circumstances surrounding the stop.”

United States v. Hall, 974 F.2d 1201, 1204 (9th Cir. 1992). Considering the

totality of the circumstances here, the search was not justified by reasonable

suspicion.




                                            -2-
      There is no dispute that Hernandez was the victim of a crime. The bus

driver reported to police that two assailants had entered his bus, beaten Hernandez,

and threatened to kill him. Hernandez was identified as the victim of possible

criminal activity to the police as soon as they arrived at the scene. However,

instead of investigating and detaining the assailants, who simply ran away after

police arrived, the police extensively questioned and searched the victim.

Nervousness alone does not justify the search. Moreno v. Baca, 431 F.3d 633, 642

(9th Cir. 2005). Suspicion of drug use or a conclusory statement about officer

safety do not provide the reasonable suspicion necessary to conduct a search for

weapons. Ramirez v. City of Buena Park, 560 F.3d 1012, 1022 (9th Cir. 2009). In

sum, the totality of circumstances in this case does not justify the search.

      Nor is the search justified by the inevitable discovery doctrine. The

government argues that if the officers had checked, they would have discovered an

outstanding arrest warrant. This theory is persuasive only if “there is no question

that the initial stop was based on reasonable suspicion.” Hiibel v. Sixth Judicial

Dist. Court of Nev., 542 U.S. 177, 184 (2004). Here, it was not.

      REVERSED.




                                          -3-
