United States of America v. Brandon Kawika Hinsey

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON KAWIKA HINSEY,
Defendant - Appellant.
No. 09-10526
D.C. No. 1:08-cr-00625-JMS-1
MEMORANDUM*
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
FILED
FEB 22 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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

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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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