                                                                          FILED
                    UNITED STATES COURT OF APPEALS
                                                                          MAR 03 2017
                            FOR THE NINTH CIRCUIT                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No.    16-10044

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cr-00231-KJD-CWH-1
 v.                                              District of Nevada,
                                                 Las Vegas
ROBERT LAFON,

              Defendant-Appellee.                ORDER


Before: HAWKINS, BERZON, and MURGUIA, Circuit Judges.

      The panel has voted to deny appellant’s petition for panel rehearing.

      The panel has voted to amend the memorandum disposition filed on January

  6, 2017. The amended memorandum disposition is attached hereto.

      The petition for panel rehearing is DENIED. No further petitions for

rehearing or petitions for rehearing en banc will be entertained.
                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 03 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10044

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cr-00231-KJD-CWH-1
 v.

ROBERT LAFON,                                    AMENDED MEMORANDUM*

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                     Argued and Submitted December 12, 2016
                             San Francisco, California

Before: HAWKINS, BERZON, and MURGUIA, Circuit Judges.

      The Government appeals the district court’s grant of Robert Lafon’s motion

to suppress physical and testimonial evidence obtained as a result of a vehicle stop

conducted by Las Vegas Metropolitan Police Department (Metro) officers. We

affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review the district court’s reasonable suspicion determination de novo,

but review “findings of historical fact for clear error and giv[e] ‘due weight to

inferences drawn from those facts by resident judges and local law enforcement

officers.’” United States v. Cotterman, 709 F.3d 952, 968 (9th Cir. 2013) (quoting

Ornelas v. United States, 517 U.S. 690, 699 (1996)).

      1.     Reasonable suspicion to stop an individual exists if, in light of the

totality of the circumstances, the officer had “a particularized and objective basis

for suspecting the particular person stopped of criminal activity.” United States v.

Edwards, 761 F.3d 977, 982 (9th Cir. 2014) (quoting Navarette v. California, 134

S. Ct. 1683, 1687 (2014)). We assume, as the magistrate judge found, that the

anonymous 911 tip was reliable, as the tipster repeated the information in person to

Metro Officer Charles Yannis upon his arrival on the scene.

      The tip alone did not, however, provide reasonable suspicion to stop Lafon.

The tipster provided no report of having seen or heard of any controlled substances

or drug paraphernalia, and he provided no information about whether or how Lafon

had used the needle. Nor does considering the gun together with the rest of the tip

tend to strengthen an inference of illicit drug use. Presence of a gun might be

relevant to an inference of drug trafficking, but nothing in the tip suggested any

drug trafficking activity. Cf. United States v. Norwood, 603 F.3d 1063, 1072 (9th


                                           2
Cir. 2010) (discussing the insufficiency of “[e]xpert testimony indicating that drug

traffickers ‘generally use firearms to further their drug crimes’” in 18 U.S.C. §

924(c)(1) prosecutions (quoting United States v. Rios, 449 F.3d 1009, 1014 (9th

Cir. 2006))). Unlike 911 emergency calls from drivers who reported their cars had

been run off the highway by dangerous driving, see Navarette, 134 S. Ct. at

1690–91, or shot at by a man on the street, see Edwards, 761 F.3d at 984–85, a 911

call about a man sleeping in a car with a needle and a gun does not describe

“conduct [that] bears . . . great . . . resemblance to paradigmatic manifestations of”

an ongoing and dangerous criminal activity, see id. (quoting Navarette, 134 S. Ct.

at 1691).

        All things considered, the tip alone did not provide “reasonable suspicion of

an ongoing and dangerous crime.” See Edwards, 761 F.3d at 984.

        2.    If the tip alone had provided a reliable report of an ongoing and

dangerous criminal activity, police corroboration of criminal aspects reported in a

reliable tip may not have been necessary. See Navarette, 134 S. Ct. at 1691; see

also Edwards, 761 F.3d at 984 (describing the fourth Navarette factor). Here,

however, the tip alone did not support reasonable suspicion to stop Lafon, so we

also consider the information Yannis obtained in his investigation preceding the

stop.


                                           3
      Yannis’s investigation detracted from, rather than added to, the weak

inferences of possible criminal activity that might be drawn from the tip. Upon

Yannis’s arrival at the scene, the 911 caller told him in person that the Lexus had

recently driven off towards the back of the complex. When Yannis located the

Lexus on the opposite side of the complex, Lafon was not “passed out.” Rather,

Lafon had driven, parked, and exited the vehicle. Yannis did not report seeing any

signs of impairment. These observations tended to dispel any reasonable inferences

that may have been drawn regarding an acute drug overdose or other medical

emergency and further weakened the already weak inferences of recent illegal drug

possession.

      3.      The only other fact the Government offered to support reasonable

suspicion was Yannis’s belief that the apartment complex where Lafon had been

parked was a “hot spot” for criminal activity. We assume the “hot spot” term in

this case designates a localized “high-crime” area. “[O]fficers are not required to

ignore the relevant characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant further investigation.” Illinois

v. Wardlow, 528 U.S. 119, 124 (2000). Still, citing “an area as ‘high-crime’

requires careful examination by the court” of officer testimony and “a fair and




                                           4
forthright evaluation of the evidence.” United States v. Montero-Camargo, 208

F.3d 1122, 1138 (9th Cir. 2000) (en banc).

      The district court noted Yannis’s “belief that the apartment complex was a

‘hot spot’ of crime.” Yannis testified that he based the characterization on “calls

for service,” but a higher number of calls for the area may simply reflect that the

apartment complex was high-density housing stock in a low-density area. As no

actual information underlying the “hot spot” designation was proffered in this case,

the designation was entitled to minimal weight.1

       In light of the totality of the circumstances, we agree with the district court

that Metro lacked reasonable suspicion to stop Lafon’s vehicle.

      AFFIRMED.




      1
        We note that Yannis related a set of inconsistent accounts on several
matters, including whether the area was a “high-crime” area, which weakened any
inferences that could be drawn from his testimony.
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