     Case: 10-41175       Document: 00511654916       Page: 1     Date Filed: 11/03/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         November 3, 2011
                                       No. 10-41175
                                     Summary Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CLAUDIO VALLEJO,

                                                  Defendant-Appellant


                      Appeal from the United States District Court
                           for the Southern District of Texas
                               USDC No. 7:08-CR-1603-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Claudio Vallejo pleaded guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1) and was sentenced to five months of
imprisonment and two years of supervised release. He reserved the right to
appeal the district court’s denial of his motion to suppress evidence seized during
a Terry1 stop.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
           Terry v. Ohio, 392 U.S. 1 (1968).
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                                  No. 10-41175

      We review the district court’s conclusions of law de novo and its findings
of facts for clear error, viewing the evidence in the light most favorable to the
Government. United States v. Gomez, 623 F.3d 265, 268-69 (5th Cir. 2010).
“Under Terry . . ., police officers may stop and briefly detain an individual for
investigative purposes if they have reasonable suspicion that criminal activity
is afoot.” Id. at 269 (internal quotation marks and citation omitted).
      At approximately 2:18 A.M., the officer was dispatched to an apartment
complex in reference to a 911 call reporting a stabbing in progress at this
apartment complex, which was known for drug activity and assaults. When the
officer arrived at the complex two or three minutes after being dispatched, he
observed Vallejo exit the complex in a very hurried manner and walk towards
the street. Vallejo was holding an open container of alcohol and was evasive in
response to the officer’s question about what was happening. After the officer
told Vallejo to stop, Vallejo complied but then began to move his right hand
towards his shorts. He continued to do so after the officer ordered him not to.
The officer drew his weapon and ordered Vallejo to the ground. Vallejo complied
but continued to reach towards his shorts, and the officer instructed Vallejo to
put his hands to the front and side. When Vallejo complied, his shirt was raised,
and the officer observed the handle of a firearm in the right pocket of his shorts.
      We need not decide whether the officer had reasonable suspicion to stop
Vallejo based only on the 911 call. See id. (discussing standard for determining
reasonable suspicion based upon 911 calls). Assuming without deciding that
Vallejo was seized when he was ordered by the officer to stop, the officer had
reasonable suspicion that Vallejo had committed or was about to commit an
alcohol-related offense. See United States v. Michelletti, 13 F.3d 838, 841-42 (5th
Cir. 1994); United States v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992)(en banc).
The officer observed Vallejo holding an open container of alcohol in a public place
in the early morning while hurriedly walking towards the street, and Vallejo was
evasive in response to the officer’s question.        Though this was not the

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                                   No. 10-41175

justification for the stop expressly given by the officer or relied on by the district
court, the officer’s subjective motivation is irrelevant to the Fourth Amendment
inquiry of whether his actions were objectively reasonable, and we may affirm
the suppression ruling on any basis established by the record. See Whren v.
United States, 517 U.S. 806, 813 (1996); United States v. McSween, 53 F.3d 684,
687 n.3 (5th Cir. 1995).
      To the extent that Vallejo claims the officer’s actions in drawing his
weapon and ordering Vallejo to the ground exceeded the permissible scope of the
stop, this claim of error is waived by virtue of inadequate briefing. See United
States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).
      The judgment of the district court is AFFIRMED.




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