                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 22 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10526

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00625-JMS-1

  v.
                                                 MEMORANDUM *
BRANDON KAWIKA HINSEY,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Hawaii
                   J. Michael Seabright, District Judge, Presiding

                           Submitted February 16, 2011 **

                                  Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

       After denial of his motion to suppress, defendant/appellant Brandon Hinsey

entered into a conditional plea for possession of 50 grams or more



        *
             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).
methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(A). He appeals the district court’s ruling on his motion to suppress. We

AFFIRM the district court.

      A denial of a motion to suppress is reviewed de novo. United States v.

Lopez, 474 F.3d 1208, 1212 (9th Cir. 2007). The factual findings of the district

court underlying the decision are reviewed for clear error. Id.

      Hinsey first appeals the constitutionality of the traffic stop. Law

enforcement officers may stop a moving vehicle if they have probable cause to

believe that a moving violation has occurred. Whren v. United States, 517 U.S.

806, 810 (1996). In determining whether there is probable cause, we do not

consider an officer’s actual motivation for effectuating the stop. See id. at 811-13.

      In this case, the officers had probable cause. Hawaii County Code § 24-

37(b) requires all vehicles to have two red taillights that are visible from a distance

of one thousand feet to the rear. The truck that Hinsey was riding in (“Hinsey’s

truck”) was equipped with unusual after-market brake light fixtures that partially

obstructed the emission of light. Officer Buyten, who had been a patrolman for

nearly four years and was familiar with local and state traffic laws, believed that

these taillights were not in compliance with Hawaii County law. He testified at the

suppression hearing that “[w]hen the brake was depressed, you couldn’t even see


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the red light. The tint was drowning it out.” At one point while officer Buyten and

agent Hunt were trailing Hinsey’s truck, agent Hunt had to slam on the brakes of

his patrol truck to avoid hitting Hinsey’s truck, indicating that Hinsey’s truck’s

brake lights were not visible from the required one thousand feet. Hinsey urges us

to hold that the officers’ testimony is not credible. The district court found that

“the testimony of each of [the] officers was consistent with one another and was

corroborated by the evidence presented. Given these facts, as well as the court’s

own observations of each witness, the court finds their testimony credible.” We do

not believe the district court’s finding is clear error.

       Hinsey next challenges the officers’ search of his backpack. “If a person has

voluntarily abandoned property, he has no standing to complain of its search and

seizure. Abandonment. . . rests. . . on whether the person so relinquished his

interest in the property that he no longer retains a reasonable expectation of privacy

in it at the time of search. The issue. . . is a factual one; abandonment is primarily

a question of intent, and intent may be inferred from words, acts and other

objective facts.” United States v. Cella, 568 F.2d 1266, 1284 (9th Cir. 1977)

(citations omitted). The district court found that “[t]he totality of the

circumstances indicate that [Hinsey] abandoned the backpack.” Both officer

Buyten and agent Hunt asked Hinsey if the backpack belonged to him, and he told


                                             3
both of them it did not. Hinsey asks us to hold as a matter of law that

abandonment requires both verbal and physical relinquishment, but that is not what

our cases hold. Abandonment is a question of intent; intent can be inferred from

verbal relinquishment alone. See United States v. Decoud, 456 F.3d 996, 1007 (9th

Cir. 2006) (driver who “unequivocally disclaim[ed] ownership” of briefcase in car

abandoned privacy interest in the briefcase).

      For the foregoing reasons, we AFFIRM.




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