United States of America v. Daniel Leroy Pick

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL LEROY PICK,
Defendant-Appellant.
No. 18-50012
D.C. No.
2:16-cr-00695-DSF-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted September 12, 2019
Pasadena, California
Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.
Appellant Daniel Leroy Pick (Pick), who entered a conditional guilty plea to
charges associated with mail theft, appeals the district court’s denial of his motion
to suppress evidence.
FILED
SEP 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Pick conceded that there was reasonable suspicion for the officers to conduct
a patdown search of Pick and his co-defendant, Roberto Ortega (Ortega), following
a 911 call that Pick and Ortega may have been engaged in criminal activity. The
district court properly denied Pick’s motion to suppress envelopes discovered
during the frisk, because the envelopes were found during a search incident to
arrest. See United States v. Johnson, 913 F.3d 793, 799 (9th Cir. 2019) (holding
that “probable cause to arrest must exist at the time of the search, and the arrest
must follow during a continuous sequence of events. If these conditions are
satisfied, the fact that the arrest occurred shortly after the search does not affect the
search’s legality.”) (citations and internal quotation marks omitted). The officers
had probable cause to arrest Pick for loitering in violation of Cal. Penal Code §
647(h)1 because: (1) a 911 caller conveyed that two individuals, meeting the
descriptions of Pick and Ortega, were “hiding in the shadows” at an apartment
complex where there had been recent burglaries, and the individuals had asked to
use the 911 caller’s cellphone; (2) the 911 caller described the two individuals’
behavior as “suspicious”; (3) the officers encountered Pick and Ortega at the
identified apartment complex; (4) Ortega first stated that he lived at the apartment
1 Cal. Penal Code § 647(h) defines loitering as “to delay or linger without a
lawful purpose for being on the property and for the purpose of committing a crime
as opportunity may be discovered.”
2

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complex, then that a friend resided there, before admitting that he did not reside
there or have a friend who resided there; (5) Pick did not refute any of Ortega’s
statements concerning their presence at the apartment complex, and also admitted
that he did not live there; and (6) the officers were familiar with “situations where
criminals ask individuals if they can use their cellphones as a ruse to commit
robbery on the unsuspecting individuals.” See Johnson, 913 F.3d at 800
(explaining that “[s]o long as the search was incident to and preceding a lawful
arrest—which is to say that probable cause to arrest existed and the search and
arrest are roughly contemporaneous—the arresting officer’s subjective crime of
arrest need not have been the crime for which probable cause existed”) (citation
omitted).
For the first time on appeal, Pick asserts that, prior to asking about the
names and addresses on the envelopes, the officer was required to advise Pick of
his Miranda2 rights. However, Pick waived this argument because he did not
“raise [this] particular ground in support of [his] motion to suppress” in the district
court. United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001) (citation
omitted).
AFFIRMED.
2 Miranda v. Arizona, 384 U.S. 436 (1966).
3

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