NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. CHRISTOPHER M. GATES,

Defendant

- Appellant. No. 17

- 30028
D.C. No. 2:15

- cr - 00253

- JCC

- 1

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding Argued and Submitted November 6, 2018

Seattle, Washington Before: McKEOWN and FRIEDLAND, Circuit Judges, and GAITAN, ** District Judge. Defendant Christopher Gates (“Gates”) challenges his convictions under 18 U.S.C. § 922(g)(1) for two counts of being a felon in possession of a firearm and two counts of misdemeanor possession of a controlled substance in violation of 21

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, sitting by designation. 

# FILED

DEC 5 2018
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

U.S.C. § 844(a). Gates’s convictions arise out of two separate police encounters:
the first in the parking lot of a strip club long after the club had closed for the
ni ght , and the second when Gates was arrested following a traffic stop and his vehicle impounded. We affirm in part and reverse in part , holding that the district court properly denied Gates’s motion to suppress a firearm seized in the first
incident but er red in denying his motion to suppress a firearm and drugs seized in
connection with the second incident

. 1. Gates raises several challenges to the district court’s denial of his motion to suppress the firearm seized from his vehicle after the incident in the strip club parking lot

. All of his arguments are meritless. First, the police officers had reasonable suspicion for the init ial investigatory detention that led to the seizure of the gun. Police officers may approach individuals to ask questions

— even when they “have no basis for suspecting a particular individual”

—

without a Fourth Amendment seizure occurring. Florida v.
Bosti ck , 501 U.S. 429, 435 (1991). Here, the police were permitted to initiate a consensual encounter with Gates in the parking lot, such as approaching his vehicle to ask him questions about why he was still there after the club had closed. Having a valid r eason to approach the car, one of the officers immediately saw the firearm in plain view on the seat next to Gates. In combination with the surrounding circumstances, t his gave the officers reasonable suspicion that Gates3

might have been planning to rob t he club or its patrons , and thus to conduct an investigatory stop

. Terry v. Ohio , 392 U.S. 1, 30 (1968). Police may also conduct “ a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual .” Id . at 27. The officers already had reasonable suspicion that Gates was planning to rob the strip club or its employees , and, when Gates woke up and began moving around inside the vehicle, the officers developed

a reasonable fear for their safety , providing independent justification for an investigatory detention and frisk for weapons. Second, t he fact that Gates was handcuffed immediately after his removal
from the car , does not make the encounter an arrest rather than a Terry stop. Washington v. Lambert , 98 F.3d 1181, 1186 (9th Cir. 1996) ; see also United States v. Taylor , 716 F.2d 701 , 709 (9th Cir. 1983) ( holding that a frisk was still part of an investigatory stop even though the suspect was lying down and han dcuffed)

. H olding a suspect at gunpoint similarly does not necessarily escalate an investigatory stop to an arrest. See, e.g., United States v. Alvarez, 899 F.2d 833,
838

– 39 (9th Cir. 1990) ( defendant was not arrested even though officers approached his vehicle with guns drawn and ordered him to step out of his car)

. The district court therefore did not err in concluding that Gates was merely
detained and not arrested. And, having detained Gates, the officers were justified4

in conducting a protective frisk of the passenger compartment of the car to secure the gun in the front seat. Michigan v. Long , 463 U.S. 1032, 1049 (1983). Third, we decline to consider Gates’s argument that the circumstances made his production of his driver’s licens e involuntary because the issue was not properly raised in the district court

. See Orr v. Plumb , 884 F.3d 923, 932 (9th Cir. 2018) (“ The usual rule is that arguments raised for the first time on appeal

. . . are
deemed forfeited. ”)

. 1 And , once the police officers identified Gates as a felon, they had probable cause to arrest him for possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

. 2
2. The trial court did err, however, in denying the motion to suppress evidence discovered following the tra ffic stop. As part of the “community caretaking function,” law enforcement officers are permitted under the Fourth Amendment to impound a vehicle and conduct an inventory search of that vehicle.
See South Dakota v. Opperman , 428 U.S. 364, 368

- 69 (1976). But federal law requires that, when a police officer decides to impound a vehicle and conduct an

1 E ven if we were to r eview for plain error, neither the testimony about Gates’s provision of his identification nor the law surrounding consent in such circumstances would support the conclusion that any error here was plain

. See United States v. Olano , 507 U.S. 725 , 734 (199 3) (“‘Plain’ is synonymous with

‘ clear, ’ or, equivalently, ‘ obvious ’.

. . . under current law”). 2 Because we conclude that the district court’s reasons for denying the motion to suppress the firearm seized in the first incident were appropriate, we need not reach the Government’s alternative argument that the gun would have inevitably been seized in a search incident to arrest.5

inventory search, the officer must comply with state law governing impoundments
as well

. United States v. Wanless , 882 F.2d 1459, 1464 (9th Cir. 1989). Washington law imposes two requirement s for a vehicle to be impounded : first, it must be necessary for “ the vehicle [to] be moved because it has been abandoned, impedes traffic, or otherwise threatens public safety or if there is a
threat to the vehicle it self and its contents of vandalism or theft ” and , second, “ the defendant, the defendant ’ s spouse, or friends are not available to move the
vehicle .” State v. Tyler , 302 P.3d 165, 170 (Wash. 2013). P olice officer s need not exhaust all possible alternative s, but they must at least consider reasonable alternatives, id. at 170, and show that they “attempted, if feasible, to get from the driver the name of someone in the vicinity who could move the vehicle; and then reasonably concluded from [their] deliberati on that impoundment was in order,”
State v. Hardman , 567 P.2d 238, 241 (Wash. Ct. App. 1977). Here, the impoundment and subsequent inventory search of Gates’s car after the traffic stop violated Washington law. The officer on the scene did not consider reasonable alternatives to impoundment by asking whether Gates had friends or family who could move the vehicle, rendering his conduct deficient under the second prong of the Tyler test. Because the impoundment was improper, the subsequent inventory sear ch was invalid as well. Wong Sun v. United States , 371 U.S. 471, 488 (1963). The firearm and cocaine found in the car should therefore6

have been suppressed. 3

AFFIRMED in part and REVERSED in part.

3 The Alprazolam pills found in the car should also have been suppressed, but Gates conceded at oral argument that his conviction for possession of Alprazolam may st ill stand based on the Alprazolam properly found on his person when he was searched incident to his arrest. B ecause we hold that the evidence found in the car after it was impounded must be suppressed, we need not reach Gate’s alternative argument that trial counsel was ineffective for failing to challenge other asp ects of the search of the car.