                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 01 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-30218

              Plaintiff-Appellee,                D.C. No. 4:13-cr-00012-EJL-1

 v.
                                                 MEMORANDUM*
MONTE G. HOFFMAN,

              Defendant-Appellant.


                    Appeal from the United States District Court
                          for the District of Idaho, Boise
                     Edward J. Lodge, District Judge, Presiding

                     Argued and Submitted February 5, 2019
                              Seattle, Washington

Before: IKUTA and CHRISTEN, Circuit Judges, and CHOE-GROVES,** Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Jennifer Choe-Groves, Judge for the Court of
International Trade, sitting by designation.
      Defendant-Appellant Monte G. Hoffman appeals the district court’s order

denying his motion to suppress evidence following a search incident to his arrest.1

We have jurisdiction under 28 U.S.C. § 1291 and we affirm.2

      We review denials of motions to suppress de novo, United States v. Dreyer,

804 F.3d 1266, 1271 (9th Cir. 2015), and we review the district court’s factual

findings for clear error. United States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir.

2006).

1.    Hoffman first argues that Trooper Edgley lacked 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). “Reasonable suspicion

‘exists when an officer is aware of specific, articulable facts which, when


      1
            Because the parties are familiar with the facts and arguments on
appeal, we do not recite them here.
      2
            Hoffman filed a Motion to Strike challenging three factual assertions
in the Government’s Answering Brief. Because we find these assertions are
unsupported by the record, we grant the Motion to Strike pursuant to both Fed. R.
App. P. 28(a)(8)(A) and Ninth Circuit Rule 28-2.8.
                                          2
considered with objective and reasonable inferences, form a basis for

particularized suspicion.’” Id. (quoting United States v. Montero–Camargo, 208

F.3d 1122, 1129 (9th Cir. 2000) (en banc)) (emphasis in original). When

evaluating whether reasonable suspicion exists, we consider the totality of the

circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989). We do not ask

whether Hoffman can counter the Government’s facts with innocent explanations,

but whether, under the totality of the circumstances, the Government’s facts give

rise to reasonable suspicion. See id. at 10; Illinois v. Gates, 462 U.S. 213, 243 n.13

(1983).

      Trooper Edgley’s requests for a canine unit were unrelated to the mission of

the traffic stop and effectively prolonged it. However, Hoffman’s prior visit to a

suspected drug house, his contentious demeanor, his driving a car registered to an

absent third party, the difference between the city where he initially claimed to stay

and the address on his license, and his inability to remember his address and

apartment number are all facts that, when viewed together under the totality of the

circumstances, provided Trooper Edgley with sufficient reasonable suspicion of

criminal activity to prolong the initial stop. These same facts justify Trooper

Edgley’s subsequent prolongation to request the criminal histories and probation

statuses of both Hoffman and his passenger, which immediately followed the


                                          3
requests for a canine unit. Finally, because the criminal history and probation

status checks revealed a possible probation violation, we conclude that Trooper

Edgley’s investigation into this possible probation violation was likewise justified.

2.    Hoffman next argues the decision to frisk was unconstitutional. “[A] police

officer who reasonably believes that a suspect could be ‘armed and presently

dangerous’ may frisk the suspect ‘to determine whether the person is . . . carrying a

weapon.’” United States v. Hartz, 458 F.3d 1011, 1018 (9th Cir. 2006) (quoting

Terry v. Ohio, 392 U.S. 1, 24 (1968)) (alteration in original). “The officer need not

be absolutely certain that the individual is armed; the issue is whether a reasonably

prudent man in the circumstances would be warranted in the belief that his safety

or that of others was in danger.” Terry, 392 U.S. at 27. “[D]ue weight must be

given . . . to the specific reasonable inferences which [the officer] is entitled to

draw from the facts in light of his experience.” Id. We conclude that Hoffman’s

increasingly combative behavior, furtive movements in the vehicle, and his

repeated attempts to place his hands in his pockets against Trooper Edgley’s

repeated instructions justified the decision to initiate a Terry frisk.

3.    Finally, Hoffman argues the frisk itself was unconstitutional. A Terry frisk

“must be strictly ‘limited to that which is necessary for the discovery of weapons

which might be used to harm the officer or others nearby.’” Minnesota v.


                                            4
Dickerson, 508 U.S. 366, 373 (1993) (quoting Terry, 392 U.S. at 26). “The sole

justification of the search . . . is the protection of the police officer and others

nearby, and it must therefore be confined in scope to an intrusion reasonably

designed to discover . . . hidden instruments for the assault of the police officer.”

Terry, 392 U.S. at 29.

       Trooper Edgley’s frisk was permitted under Terry. During the frisk,

Hoffman repeatedly attempted to reach into his pockets. When expressly asked,

Hoffman was unable to identify the objects that Trooper Edgley encountered

during his pat-down of each pocket. While an officer may not conduct a

“continued exploration” of a defendant’s pocket “after having concluded that it

contain[s] no weapon,” Dickerson, 508 U.S. at 378 (emphasis added), Trooper

Edgley’s removal of then-unidentified objects that he had not yet ruled out as a

weapon was not unconstitutional.

       AFFIRMED.




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