                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 22 2010

                                                                        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. 09-30210

             Plaintiff - Appellee,               D.C. No. 2:08-CR-02045-LRS-1

  v.
                                                 MEMORANDUM *
ROBERT JOSEPH BROWN, Jr.,

             Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Eastern District of Washington
                   Lonny R. Suko, Chief District Judge, Presiding

                           Submitted February 3, 2010 **
                               Seattle, Washington

Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.

       Appellant Robert Brown, Jr. (Brown) appeals the district court’s denial of

his motion to suppress evidence. Brown asserts that Community Corrections




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Officers Michael Hisey (Hisey) and Brent Martin (Martin) violated his Fourth

Amendment right against unreasonable search and seizure.

      Hisey and Martin conducted a constitutional stop and frisk pursuant to Terry

v. Ohio, 392 U.S. 1 (1968). Based on the totality of the circumstances, Hisey and

Martin reasonably suspected Brown of criminal activity and feared for their safety

because Brown entered a gang-associated residence after being told not to; wore

baggy gang-related clothes capable of concealing a weapon; acted nervous upon

seeing the officers; made furtive movements around his waist and pockets, and

refused to keep his hands where the officers could see them despite requested

requests to do; and was carrying an aerosol can of gun cleaning oil in his pocket.

See United States v. Johnson, 581 F.3d 994, 999-1000 (9th Cir. 2009) (describing

the Terry standard).

      Hisey and Martin’s limited use of force did not convert the investigatory

stop into an arrest. Hisey and Martin detained Brown in order to quickly confirm

or dispel their suspicion that Brown was armed. See United States v. Thompson,

282 F.3d 673, 677-78 (9th Cir. 2002). Hisey and Martin’s fear for their safety

justified their use of force and coercive tactics. See United States v. Ricardo D.,

912 F.2d 337, 340 (9th Cir. 1990).

      AFFIRMED.
