                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 31 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10486

              Plaintiff - Appellee,              D.C. No. 2:12-cr-01627-DGC-1

  v.
                                                 MEMORANDUM*
RICHARD D. BERNAL,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                            Submitted March 11, 2015**
                              San Francisco California

Before: W. FLETCHER, DAVIS***, and CHRISTEN, Circuit Judges.




        *
             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).
        ***
            The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.

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       Appellant Richard Bernal appeals from a judgment of conviction, after a

jury trial, of being a felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1) and § 924(a)(2). He contends that the district court erred by denying his

motion to suppress the gun the police found near him after he was seized, as well

as the inculpatory statements he made about the gun. Bernal also contends that the

district court erred by denying his motion for reconsideration and his motion for a

new trial in light of new evidence casting doubt on the arresting officer’s

credibility.

       We review de novo the district court’s denial of Bernal’s suppression

motion. United States v. Burkett, 612 F.3d 1103, 1106 (9th Cir. 2010). We review

for abuse of discretion the district court’s denial of his motions for reconsideration

and for a new trial. United States v. Buffington, 815 F.2d 1292, 1298 (9th Cir.

1987); United States v. King, 660 F.3d 1071, 1076 (9th Cir. 2011). For the reasons

set forth below, we affirm.

       The district court properly denied Bernal’s motion to suppress, because the

police officer had reasonable suspicion that Bernal’s vehicle was involved in a hit-

and-run accident and driving under the influence. That reasonable suspicion was

supplied by a 911 call that bears the hallmarks of reliability laid out in Navarette v.

California, 134 S. Ct. 1683, 1689-90 (2014). The caller reported seeing a two-tone

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green SUV, which the caller thought was fleeing a police helicopter, quickly exit

the freeway and hit a median curb. Within minutes, the officer came upon an SUV

that matched the caller’s description near the location identified by the caller and

with damage consistent with hitting a median at high speed.

      Other circumstances bolstered the officer’s reasonable suspicion that a crime

had been committed: the SUV was stopped in the middle of the road; the men in

the SUV did not welcome the officer’s assistance, as people involved in innocent

accidents normally do; they denied that an accident had occurred; they refused to

identify the driver; one of the men appeared to be drunk; and the local bars had just

closed.

      Some of this information comes exclusively from the officer, whose

credibility Bernal challenges based on the officer’s inconsistent statements before

and during trial about when he handcuffed Bernal. But questions about the

officer’s credibility regarding the handcuffing do not entitle Bernal to prevail. The

officer testified consistently about the men’s demeanor and behavior when he

encountered them, and the district judge did not clearly err in finding him credible

on these points. In any event, the 911 call, coupled with the officer’s uncontested

observations about the location and condition of the SUV, establish that the seizure




                                           3
was lawful. Consequently, the district court properly denied Bernal’s suppression

motion and the post-trial motions.

      Finally, Bernal is wrong that the officer violated the Fourth Amendment by

detaining him when the officer did not know whether Bernal was the driver. The

officer had cause to detain and question all of the men connected to the SUV. Cf.

Arizona v. Johnson, 555 U.S. 323, 327 (2009).

      Bernal makes other arguments, but because he made these arguments for the

first time in his reply brief, and because the government has not briefed them, they

are waived.

      AFFIRMED.




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