N O T FO R PUB L ICAT IO N UNITED STATES C OUR T OF APPEALS FOR THE NINTH C IR C UIT

UNITED STATES OF AM ER IC A,

Pla i ntiff-Appe lle e , v. R AUL ADR IAN TOR

R E S, De fe nda n t-Appe l la

nt. No. 20-10112

D.C . Nos. 1:18-c r-00147-DAD-SKO-1 1:18-c r-00147-DAD-SKO
M EM O R ANDUM *

Appe a l from

the Unite d

Sta t e s Distric t C ourt for the Ea ste rn Distric t of C a lifornia Da le A. Droz d, Distric t Judge , Pre siding Argue d a nd Subm itte d M a

rc h 9, 2021 Sa n Fra n c isc o , C a lifornia B e fore : M c K EOW

N, IKUTA, a

nd B R ESS, C irc uit Judge s. Disse n t by

Judge M c KEOW

N R a ul Adria n Torre s a

ppe a ls the distric t

c ourt’ s de nia l of his m otions to suppre ss a

nd to dism

iss. W e ha ve jurisdic tion unde r 28 U.S.C . § 1291, a nd we

a ffirm

. 

# FIL ED
APR 27 2021 M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALS

* This disposition is not a ppropria te for public a t ion a

nd is not pre c e de nt e xc e pt a s provide d

by Ninth C irc uit R

ule 36-3.A de te c tive with the Fre sno Polic e De pa rtm e nt wa s browsing soc ia l m e dia whe n he obse rve d a

re c e ntly uploa de d vide o of Torre s posing with a gun a t the house of a

loc a l ga ng m e m be r. The de te c t ive quic kly linke d the vide o to a

nothe r
soc i a l m e dia

profile tha

t use d the na m e Adria

n Torre s. Afte r furthe r inve stiga tion, the d e te c t ive c onc l u de d (m ista k e nly , a s it would turn out) tha t Torre s ha d a

n outsta nding wa rra n t for be ing a

fe lon in posse ssion of a

m m unition. Offic e rs on
surve i lla nc e obse rve d Torre s le a ving the house with a ba c kpa c k. Offic e rs e xite d the c a r, ide ntifie d the m se lve s, a nd orde re d Torre s to stop, but he took off running. Offic e rs ga

ve c ha se a nd e ve ntua lly

c a ught up to Torre s , who re s iste d a rre st. Torre s y e lle d profa

nitie s a t offic e rs while c ontinuing to re sist a nd fight. Eve ntua l ly , offic e rs we re a ble to ge t Torre s unde r c ontrol, ha ndc u ffe d , a

nd sha c kle d. One offic e r a s ke d Torre s why he ra n. He re sponde d, “ [c ] a u se I ha ve a gun.” Offic e rs the n se a rc he d Torre s’ s ba c kpa c k a n d found a

fire a rm with its se ria l
num be r sc ra tc he d off, a long with a loa de d m a ga z i ne a nd a dditiona l a m m unition. Torre s the n sta

te d to offic e rs, “ I’ m

gonna sm oke y ou.” Offic e rs a ske d Torre s se ve ra l routine booking que stions, during whic h tim e Torre s m a de m

ultiple unsolic ite d sta

te m e nts a bout how he wishe d he would ha ve
use d the gun to “ shoot it out”

with polic e . Eve ntua lly , offic e rs disc ove re d tha t Torre s wa s not Adria

n Torre s , but R a

ul Adria n Torre s , a

n d tha t he ha d two

2pre v ious fe lony c onvic tions for dom e stic viole nc e , wa s on fe lony proba tion, a

nd
wa s wa nte d for a nothe r re c e nt dom e stic viole nc e offe nse . Offic e rs a dvise d Torre s of his Miranda rights, se e Miranda v . Arizona , 384 U.S. 436 (1966), a nd he a gre e d to spe a k with the m . He a dm itte d tha t the gun wa s his, tha

t he kne w the se ria l
num be rs we re sc ra tc he d off, a nd tha t he wa s on the run “ be c a use he didn’ t c he c k into his proba

tion.” 1. Torre s a

rgue s tha t the polic e la c ke d suffic ie nt c a use to a rre st him a nd tha t the distric t c ourt e rre d by m isa pply ing Se c tion 148 of the C a l ifornia Pe na l C ode a nd by de c lining to hold a n e vide ntia

ry he a ring. B ut the re c o rd e s ta blishe s tha t the polic e ha d suffic ie nt c a use for the stop a

n d the a rre st. Give n the inform a t ion the y

we re provide d, the offic e rs ha d “ a good fa ith, re a s ona

ble be lie f tha t the a rre ste e wa s the subje c t of the wa rra n t.” Riv e ra v . C

nty . of Los Ange le

s , 745 F.3d 384, 389 (9th C ir. 2014). Alte rna tive l y , polic e ha d re a sona ble suspic ion to stop Torre s ba se d on the soc ia l m e d ia post a nd the ir be lie f tha t he wa s the subje c t of a

n outsta n ding wa rra nt, se e Te rry

v . Ohio , 392 U.S. 1, 30 (1968); Unite d State s v . Garc i a-Ac u na , 175 F.3d 1143, 1147 (9th C ir. 1999). Onc e Torre s fle d the

a tte m pte d Te rry

stop a nd the n a ssum e d

a fighting sta

nc e to re sist the Te rry

stop, De te c tive W ilkin a

nd Age nt C a rlos ha d proba ble c a u se to a rre st Torre s unde r Se c tion 148(a )(1) of the C a lifornia Pe n a l C ode

. Se e Ve l

azque z v . C i ty of Long
3Be ac h , 793 F.3d 1010, 1018–19 (9th C ir. 2015). No e vide ntia ry he a ring wa s
re quire d be c a

use , a l though Torre s a

rgue s a bout the le ga l signific a nc e of
unc onte s te d fa c ts, he fa ils to ide ntify a ny dispute d, m a te ria l issue s of historic a l fa c t
. Se e Unite d State

s v . DiC e sare , 765 F.2d 890, 895 (9th C ir. 1985). 2. Torre s ne xt c la im s tha t the se a rc h of his ba c kpa c k viola te d the Fourth Am e ndm e nt, a

nd tha t the re fore the distric t c ourt e rre d in de c lining to suppre ss the gun found within it. The

se a rc h did not viola

te the Fourth Am e ndm e nt, howe ve r, be c a use it fa l ls within the

se a rc h inc ide n t to a la

wful a rre st e xc e ption. Se e Arizona

v . Gant , 556 U.S. 332, 351 (2009). This c a se is c o ntrolle d by U n ite d State

s v . C ook , 808 F.3d 1195 (9th C ir. 2015), whic h he l d tha t the se a rc h inc ide nt to a la wful a rre st e xc e ption a

p plie d e ve n

though the individua l se a rc he d wa s on the ground in ha

ndc u ffs whe n his ba c kpa c k wa s se a rc he d ne a rby

. Se e id. a t 1199-1200. 3. Torre s a l s o a

rgue s tha t the distric t

c ourt e rre d in de c lining to suppre ss his sta t e m e nt “ [c ] a

use I ha ve a

gun” in re s ponse to the offic e r’ s que stion re ga rding

“ why he ra n.” B ut a ssum ing without de c iding tha t this que stion is not c ove re d by the p ublic sa fe ty

e xc e ption to Miranda , s e e , e .g. , Alle n v . Roe , 305 F.3d 1046, 1050 (9th C ir. 2002), a

n y e rror in a dm itting this sta te m e nt is ha

rm le ss, be c a

use the re is
no re a sona

ble possibility

tha t the e rrone ously

a dm itte d sta

te m e nt c ontribute d to

4Torre s’ s de c ision to ple a d guilty to a viola t ion of 18 U.S.C . § 922(g)(1). Unite d State s v . Lustig , 830 F.3d 1075, 1088–89 & n.14 (9th C ir. 2016). To c o nvic t Torre s unde r 18 U.S.C
. § 922(g)(1), the gove rnm e nt ha d to prove tha t Torre s (1) kne w tha

t he posse sse d a

fire a rm a nd (2) kne w he wa s a pe rson

“ who ha s be e n c onvic te d in a ny c ourt of[] a

c rim e punisha

b le by im prisonm e nt for

a te rm e xc e e ding one y e a

r.” 18 U.S.C . § 922(g)(1); R e h aif v . Unite d State s , 139 S. C t. 2191, 2200 (2019). In his re ply brie f, Torre s a

rgue s for the first tim e tha t his

“ [c ] a u se I ha ve a

gun” re sponse is pre

judic i a l be c a

use it is e vide nc e of the se c ond
e le m e nt. 1 B ut e ve n if we a c c e pt Torre s’ s c ha ra c te riz a tion of his own a m biguous sta te m e nt, Torre s’ s re sponse doe s not te nd to prove tha t Torre s kne w he wa s a pe rson “ who ha s be e n c onvic te d in a ny c ourt of[] a

c rim e punisha

ble by im prisonm e nt for a

te rm e xc e e ding one y e a

r.” 18 U.S.C
. § 922(g)(1). At m ost, Torre s’ s re sponse c ould be e vide nc e tha t Torre s kne w tha

t posse ssion of the fire a rm wa s ge ne ra lly

unla wful (be c a

use ha ving the fire a rm

m otiva te d him to run from the polic e ). 2 The disse nt a rgue s tha t be c a use Torre s’ s sta

te m e nt ra ise s the

1 As to the first e le m e nt, tha t the de fe nda

nt kne w tha

t he posse sse d a

fire a rm , Torre s’ s sta

te m e nt is duplic a tive of othe r e vide nc e in the re c ord. For insta nc e , in his inte rvie w with De te c tive M a rtine z a fte r re c e iving Miranda wa rnings, Torre s a dm itte d to knowing he

wa s in posse ssion of the fire a rm . 2 Of c ourse , a

de fe nda nt’ s knowle dge tha

t posse ssion of a fire a rm

is unla wful is not itse l f a n e le m e nt of a § 922(g)(1) offe nse . 5infe re n c e tha t Torre s “ kne w it wa s wrong to ha ve a gun,” this infe re nc e the n supports the

furthe r infe re nc e tha

t the sta te m e nt “ sugge sts Torre s kne w” he wa s a pe rson “ who ha s be e n c onvic te d in a ny c ourt of[] a

c rim e punisha

ble by im prisonm e nt for a

te rm e xc e e ding one y e a

r” unde r 18 U.S.C . § 922(g)(1). W e disa gre e . The disse nt’ s la bore d a nd ta ngle d disquisition, re l ie s on a c ha in of infe re n c e s too a

t te nua te d a

nd spe c ula tive to ra ise a

“ re a sona b le possibility

” tha t Torre s’ s sta

te m e nt c ontribute d to Torre s’ s ple a de c ision. Lustig , 8 30 F.3d a t 1088 & n.14. To hold othe

rwise would e ffe c tive ly

c re a te the a

utom a tic re ve rsa l rule
re je c te d by Lustig a n d N

e de r v . Unite d State s , 527 U.S. 1, 7 (1999). Se e Lustig , 830 F.3d a

t 1089–90. Torre s’ s sta

te m e nt a lso a dds little , if a ny thing, to the

a lre a dy substa n tia l
c irc um s ta ntia l e vide nc e tha

t Torre s kne w his posse ssion of a gun wa s ille ga l. 3

“ [K] nowle dge c a n be infe rre d from c i rc um sta

ntia l e vide nc e .” Re haif

, 139 S. C t. a t 2198 (quoting S

taple s v . Unite d State

s , 511 U.S. 600, 615 n.11 (1994)). Torre s took off running whe n

polic e a tte m

pte d to stop him , a

nd he a dm itte d in m

ultiple

3 B e c a u se Torre s’ s knowle dge tha t it wa s ille ga l for him

to posse ss a

gun is not a n e l e m e nt of a

§ 922(g)(1) c ha

rge , our obse rva tion tha

t Torre s’ s “ [c ] a

use I ha ve a gun” sta

te m e nt a d ds “ little , if a

ny t hing,” to the e vide n c e re ga rding this knowle dge doe s not support the disse nt’ s a

rgum e nt tha

t Torre s would ha

ve thought the a dm ission of this sta

te m e nt would hurt him

a t tria l by

showing tha

t he kne w he wa s a pe rson “ who ha s be e n c onvic te d in a ny c ourt of[] a

c rim e punisha

b le by im prisonm e nt for a

te rm e xc e e ding one y e a

r,” 18 U.S.C . § 922(g)(1). 6post-

Miranda polic e inte rvie ws tha t he kne w he ha d a

gun, the gun wa s his, a

nd he kne w he ha d fa ile d to c om ply with the te rm s of his proba tion a n d wa s wa

nte d or ha d a wa rra nt out for his a

rre st. Torre s a lso la

t e r a d m itte d tha t he kne w the gun he ha d wa s ille ga l be c a

use its se ria l num

be rs we re oblite ra te d, a

nd he a lso sa id he kne w he wa s “ going to ge t c ha rge d with it.”He ha s a lso be e n c onvic te d of two prior fe l onie s a

nd ha s ne ve r c la im e d he wa s una wa re of his fe l on sta

tus. Give n a ll this e vide nc e , a

n y im prope r a dm ission of the

“ [c ] a use I ha ve a

gun” sta te m e nt wa s ha rm le s s. 4. Torre s a

rgue s tha t his sta te m e n ts to De te c tive s Flowe rs a nd M a rtine z should ha ve be e n suppre sse d or, in the a lte rna tive , tha t a n e vide ntia

ry he a ring wa s
ne e de d. The sta

t e m e nts m a d e to De te c tive Flowe rs we re a dm issible unde r the routine booking que stions e x c e ption be c a use De te c tive Flowe rs only a ske d Torre s que stions ne e de d to run his inform a t ion in the polic e booking sy ste m , a nd the se que stions we re not re a sona bly like ly to e lic it inc rim ina ting re sponse s. Se e Unite d State s v . W illiams , 842 F.3d 1143, 1147 (9th C ir. 2016). Any sponta ne ous sta te m e nts m a de by Torre s during the s e booking que s tions ne e d not be suppre sse d. Se e C ox v . De l Papa , 542 F.3d 669, 675–76 & n.10 (9th C ir. 2008). The re is a lso no issue

with the post-a

rre st sta te m e nts m a d e to De te c tive M a rtine z . Although Torre s a tte m pts to a na logiz e this c a se to Missouri v . Se ibe rt ,
7542 U.S. 600 (2004), the re is no e vide nc e tha

t a de libe ra te two-ste p inte rroga tion
oc c urre d he re . Nothing re ga rding a ny of the sta

te m e nts m a de by

Torre s in this
c a se m a n da te s a

n e vide ntia

ry he a ring. Se e DiC

e sare , 765 F.2d a

t 895. 5. Fina lly , Torre s c la im s tha t in de ny i ng his m otion to dism i ss, the distric t c o urt fa ile d to c onside r a funda m e nta l fa irne s s e xc e ption, whic h provide s tha t c ha rge s m a y be dism isse d if a

“ bre a c h of [a

n] a gre e m e n t re nde re d a prose c ution funda

m e nta l ly unfa ir.” S

e e Unite d State

s v . W illiams , 780 F.2d 802, 803–04 (9th C ir. 1986) (pe r c uria m ). Nothing in the re c ord supports the e xiste nc e of a ny a g re e m e nt m a de by sta te prose c utors or the sta

te c ourt, a nd the sta t e -c ourt tra nsc ript c le a rly

inform e d Torre s tha

t the sta te fire a rm c a se wa s going to be dism isse d “ in light of a

fe de ra l prose c ution.” B e c a use the re wa s no bre a c h

of a ny
a gre e m e nt, tha

t e xc e ption doe s not a

pply

. AFFIRM E D.

8United States v. Raul Torres , No. 20

- 10112 McKEOWN, Circuit Judge, dissenting : When Agent Carlos kneed, punched, restrained, and handcuffed Torres, there was no doubt he was in custody. To its credit, the government doesn’t disagree. But instead of giving Torres his Miranda warnings , Agent Carlos launched into questioning. Torres responded with a n inculpatory statement that was instrumental in establishing an element of the charged crime. I respectfully dissent because Torres was subjected to custodial interro g ation without the required Miranda advisements. Th e district court err ed in failing to suppress the statement , and this error was not harmless. The officer’s question

— why did you run?

— easily falls into the category of “express questioning” or , at the very least , amounted to “words . . . that the police should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis , 446 U.S. 291 , 30 0

– 01 (1980)

. This was a pointed question aimed at eliciting an inculpatory response , not a friendly inquiry to see how Torres was doing nor a cas ual query about where he was going

. The only issue, then, is whether the public safety exception applies

. I t does not. The exception excuses the need for Miranda warnings when “ police officers ask questions reasonably pr ompted by a concern for the public safety.” Allen v. Roe , 305 F.3d 1046, 1050 (9th Cir. 2002) (quoting New York v. Quarles , 467 U.S. 

# FILED
APR 27 2021 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 649 , 656 (1984) )

. The standard is high: “the police must reasonably believe that there is a serious likelihood of harm to the public or fellow officers.” Id. In applying this exception , we have of ten emphasized the non - investigatory nature of the questioning. S ee , e.g. , United States v. Carrillo , 16 F.3d 1046, 1049

– 50 (9th Cir. 1994), as amended (May 17, 1994) (“ Our conclusion is buttressed by the non

investigatory nature of the officer ’ s question

. The question called for a ‘ yes ’ or

‘ no, ’ not a testimonial response .”); United States v. Brady , 819 F.2d 884, 888 (9th Cir. 1987) (applying the exception because , among ot her reasons, the question was “not investigatory”)

. Though the majority does not reach this issue, I would conclude, w ithout doubt, that t he exception does not apply here both because the re was no danger to the public or to the police that necessitated the question and because the question was investigatory

. Torres was arrested in an alleyway, and there is no evidence that there were other people in the alleyway at the time of the arrest. The most telling fact is that the offic ers do not even assert a subjective perception of immediate danger when Torres wa s shackled and handcuffed

. Because the standard requires that the officers “reasonably believe” there is a danger, t he public safety exception simply cannot apply where the o fficers do not even believe there
wa s a danger when the question wa s asked

. Allen , 305 F.3d at 1050. The absence of any perception of danger is underscored by the nature of the3 question asked, which did not seek information to address a public safety threat, but rather was aimed at eliciting testimonial, inculpatory information. If the officers were concerned about the gun, they could have asked , “are you armed ?”;

“ is there a gun ? ” ; “ where is the gun ? ” ; or another similar question

. B ut instead they asked only why Torres ran. That question is framed to elicit an incriminating response rather than information “ necessary to secure [ the officers’] own safety or the safety of the public ” especially when, as here, no threat has even been ide ntified

. Quarles , 467 U.S. at 659. W ith no public safety justification to fall back on, the custodial interrogation without Miranda warnings was a violation of Torres’ Fifth Amendment right. Contrary to the majority ’s conclusion, the error in denying the motion to suppress was not harmless. Our precedent sets a high bar for the government to establish harmlessness where, as here, the defendant took a conditional guilty plea. The government must show that there is no “reasonable possibility” that the erroneously admitted evidence “contributed to [the] decision to plead guilty.” United States v. Lustig , 830 F.3d 1075, 1088 (9th Cir. 2016) (citation omitted)

. This standard is “necessarily hard for the government to mee t”

— so much so that “an appellate court will rarely , if ever , be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision [to plead guilty].” Id . (emphasis added) (citation omitted)

.4 Th e government doe s not clear this high bar

. Because the statement went directly to an element of the charged crime, there is more than a “reasonable possibility” that its erroneous admission contributed to the decision to plead guilty. Id. The statement that Torres ran because he had a gun establishes that he knew he was not allowed to have a gun. That is critical evidence because the charged crime

— Felon in Possession of a Firearm, 18 U.S.C. § 922(g)(1)

— requires proof that the defendant “ knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v. United States , 139 S. Ct. 2191, 2200 (2019). By establishing that he knew it was wrong to have a gun, the statement in turn suggests that Torres knew he belonged to the category of p ersons barred from possessing a gun

— in this case people with felon y convictions

. Th at the statement is legally damaging and would have been harmful to Torres at trial is more than enough to show that it “could have affected [Torres’] decision to plead gui lty.” Lustig , 830 F.3d at 1086. The majority argues that Torres’ statement does not tend to prove knowledge of felon status at all

. That is a dramatic position to take, especially given the other evidence that the majority credits as tending to prove kn owledge and the long

standing principle that knowledge “can be inferred from circumstantial evidence

. ” Rehaif , 139 S. Ct. at 2198 (quoting Staples v. United States , 511 U.S. 600, 615 n.11 (1994))

. Admittedly, different inferences might be drawn from the statement ,5 but the inference that Torres knew it was illegal for him to carry the gun because he has a felon y conviction is a fair one, and indeed would be enough for a jury to convict. The evidence easily falls into the category of evidence the prose cutor could use to establish knowledge. And t hat’s enough under Lustig , because if the prosecutor could leverage the evidence against Torres at trial, Torres could reasonably take a plea in fear of it

. The majority tries to sidestep the import of the sta tement by arguing that any value in the statement is merely duplicative of other evidence. But what other evidence? The only evidence that the majority cites as tending to prove knowledge of felon status is that Torres knew he was on probation and that he was convicted of a crime punishable by more than a year of prison. 1 Probation does not establish knowledge of felon status because it is used in California for both felonies and misdemeanors

. See Cal. Penal Code § 1203. And th e fact of a conviction punishable by over a year does not establish knowledge of that type of conviction because here , Torres was never actually punished by over a year of prison. More importantly, the Supreme Court has already told us that probation and the fact of a felony conviction are not enough to establish knowledge. Rehaif explicit l y noted that the crime of Felon in Possession of a Weapon would not apply to “a person

1 The majority als o cites to evidence that clearly establishes that Torres possessed the gun, but that evidence goes to the first element

— possession

— not to the second element of knowledge of felon status.6 who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is punishable by imprisonment for a term exceeding one year.” Rehaif , 139 S. Ct. at 2198 (internal quotation mark s omitted). Because the two pieces of ev idence relied on by the majority do not establish the necessary knowledge element , they do not render Torres’ statement duplicative. 2 E ven if the statement were duplicative, the Lustig standard would still be met. If there are multiple pieces of eviden ce probative of an element, it is the defendant’s prerogative , not ours, to evaluate at what point the evidence becomes too strong to risk trial : “only the defendant is in a position to evaluate the impact of a particular erroneous refusal to suppress evid ence.” Lustig , 830 F.3d at 1088 (quoting United States v. Benard , 680 F.3d 1206, 1213 (10th Cir. 2012) ) (internal quotation mark s and citation omitted). Because the statement contained evidence of guilt , the prospect of it s admission “could have affected [Torres’] decision to plead guilty.” Id. at 1086. The district court’s error therefore was not harmless , and for that reason I respectfully dissen t and would reverse.

2 In passing, the majority also holds Torres’ silence against him as evidence of knowledge, noting that Torres “has never claimed he was unaware of his felon status.” But of course that reasoning misplaces the burden; Torres need not prove his innocence, a nd his silence on an issue should not be held out as evidence against him.