United States of America v. Zuberi Seel Steel

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Betty Binns Fletcher, Senior Circuit Judge for the Ninth**
Circuit Court of Appeals, fully participated in the case and concurred in the
judgment prior to her death.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZUBERI SEEL STEEL,
Defendant - Appellant.
No. 12-10038
D.C. No. 4:11-CR-00149-PJH-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted October 16, 2012
San Francisco, California
Before: B. FLETCHER , D.W. NELSON, and MURGUIA, Circuit Judges.**
Zuberi Seel Steel appeals the denial of a motion to suppress evidence of a
firearm he was charged with possessing. This Court reviews de novo a district
FILED
NOV 08 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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court’s denial of a motion to suppress, and reviews the district court’s factual
findings underlying the denial of the motion for clear error. United States v.
Shetler, 665 F.3d 1150, 1156 (9th Cir. 2011). We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
The district court did not err in finding that reasonable suspicion existed to
warrant a Terry stop. A police officer may conduct an investigatory stop, or Terry
stop, to prevent ongoing or imminent crime. Terry v. Ohio, 392 U.S. 1, 30 (1968).
Here, Officer Sanchez “observe[d] unusual conduct which [led] him reasonably to
conclude in light of his experience that criminal activity may [have] be[en]
afoot . . . .” Id.
The district court also correctly determined that Steel’s detention was a valid
investigatory stop under Terry, not an unlawful arrest. Whether an unlawful arrest
occurs depends on whether the use of force in detaining the suspect was justified
under the totality of the circumstances, weighing the intrusiveness of the stop
against the justification for using such tactics. United States v. Miles, 247 F.3d
1009, 1012 (9th Cir. 2001). In applying this test, the court considers “the
aggressiveness of the methods used by police and the degree to which the suspect’s
liberty was restricted,” and “whether the officer had sufficient basis to fear for his
or her safety warranting a more intrusive action.” United States v. Rousseau, 257

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F.3d 925, 929 (9th Cir. 2001). Here, Sanchez’s use of force in stopping Steel and
handcuffing him was justified given Sanchez’s reasonable safety concerns. Steel
did not cooperate with Sanchez’s repeated commands to stop, did not comply with
Sanchez’s order to put his hands behind his back, and made a movement with his
right elbow towards his right side — a gesture which made Sanchez concerned that
Steel was either carrying a firearm or attempting to discard contraband.
AFFIRMED.

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