                                                                          FILED
                           NOT FOR PUBLICATION
                                                                           SEP 04 2015
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 14-30143

              Plaintiff - Appellee,             D.C. No. 2:13-cr-00071-JLR-1

 v.
                                                MEMORANDUM*
JOSEPH L. GARCIA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Western District of Washington
                    James L. Robart, District Judge, Presiding

                          Submitted September 2, 2015**
                              Seattle, Washington

Before: HAWKINS, GOULD, and N.R. SMITH, Circuit Judges.

      After a bench trial on stipulated facts, Defendant-Appellant Joseph Garcia was

convicted of possession of methamphetamine with intent to distribute and sentenced

to 135 months in prison followed by 5 years of supervised release. Garcia appeals the


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
denial of his motion to suppress evidence, a package of methamphetamine, obtained

during a search of his car pursuant to a warrant. Garcia contends that officers lacked

reasonable suspicion to conduct their initial Terry stop, exceeded the scope of a

reasonable Terry stop, and lacked probable cause to ultimately seize his car while

awaiting issuance of the warrant. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

      There was no error in concluding, based on the totality of the circumstances, the

Whatcom County Sheriff’s officers conducted a lawful Terry stop. See Terry v. Ohio,

392 U.S. 1 (1968). Where, as here, a source of the officers’ information is an

informant’s tip, the central inquiry is whether there are sufficient “indicia of

reliability,” Adams v. Williams, 407 U.S. 143, 147 (1972), to establish “a

particularized and objective basis for suspecting the particular person stopped of

criminal activity,” United States v. Cortez, 449 U.S. 411, 417–18 (1981).

      After receiving a tip from an identified informant that Garcia, a known felon

with a history of drug-related convictions, would be collecting money and

participating in a drug buy later that evening, officers set up independent surveillance

to verify details of the tip and observe Garcia’s behavior. As predicted by the

informant, officers observed multiple individuals entering Garcia’s place of business

after 8:45 p.m., which an officer explained was unusual based on his prior surveillance


                                           2
of the business. Officers then observed Garcia during the late hours of the night

driving in circuitous routes, varying his speed, and stopping in the dark parking lot of

a closed business, which he exited only after another, previously unseen car

departed—conduct the officers identified as counter-surveillance tactics and consistent

with someone on a drug buy.

      Taken as a whole and informed by the officers’ training and experience, the tip,

the officers’ subsequent observations, and Garcia’s known criminal history created

reasonable suspicion that Garcia was involved in criminal activity. See, e.g., United

States v. Sharpe, 470 U.S. 675, 677–79, 682 (1985) (finding reasonable suspicion of

narcotics trafficking where officers observed truck was heavily loaded and engaging

in abnormal driving patterns); United States v. Cotterman, 709 F.3d 952, 968 (9th Cir.

2013) (criminal history may be considered as part of totality of circumstances).

      Nor was there error in determining the length of the stop was reasonable.

Although Terry stops must “last no longer than is necessary to effectuate the purpose

of the stop,” courts have declined to set any “rigid time limitation” on such stops.

Sharpe, 470 U.S. at 684–85 (internal quotation marks and citation omitted). Nothing

in the record suggests the officers unreasonably extended their stop of Garcia beyond

the time necessary to investigate their suspicion of criminal activity. Rather, Garcia’s

own conduct, including evading officers’ questions and making a phone call,


                                           3
contributed to the length of the stop, and he voluntarily remained at the scene after the

stop had concluded to wait for the tow truck. Cf. United States v. Montoya de

Hernandez, 473 U.S. 531, 543 (1985) (“Our prior cases have refused to charge police

with delays in investigatory detention attributable to the suspect’s evasive actions

. . . .”).

         Finally, there was no error in determining the officers’ reasonable suspicion

ripened into probable cause to seize Garcia’s car given the narcotics dog’s two alerts

and Garcia’s evasive conduct, particularly when moving a jacket on his car floor in

what appeared to be an effort to hide something. See Florida v. Harris, 133 S. Ct.

1050, 1055–59 (2013). Garcia’s contentions that the dog alerts could be explained by

his use of medical marijuana or the fact that he was carrying cash, which might have

contained traces of drug residue, are unavailing.

         AFFIRMED




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