927 F. 2d 611 - United States v. Mauk

MEMORANDUM**

Appellant Daniel Maynard Mauk ("Mauk") challenges his convictions, based upon a conditional plea of guilty, for armed bank robbery, in violation of 18 U.S.C. Sec. 2113(a)(d), carrying a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924(c), being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1), and possession of an unregistered firearm, in violation of 18 U.S.C. Sec. 5861(d). Specifically, he appeals the denial of his motion to suppress, contending the stop was made without probable cause or reasonable suspicion and the scope of the stop went beyond what was reasonably necessary to determine whether he was armed. We find that probable cause existed for the stop and ultimate arrest of the defendant and therefore affirm.

Probable cause to make an arrest exists where, at the moment of the arrest, the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent man in believing that the person arrested has committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964). The ultimate conclusion of whether probable cause exists is a mixed question of law and fact, which we review de novo. United States v. Pinion, 800 F.2d 976, 979 (9th Cir.1986), cert. denied, 180 U.S. 936, 107 S.Ct. 1580 (1987). The district court's findings on the underlying facts are reviewed under the clearly erroneous standard. Id. In this case, a reasonable officer would have been justified in determining that the defendant had committed the bank robbery reported minutes before at the bank down the street. The defendant's physical appearance generally matched the physical description of the robber. The defendant was found in the precise location reported by the 911 caller, which had been reported to the arresting officer. The defendant was found in that vicinity only two-three minutes after the robbery had occurred, which was also known to the arresting officer. The proximity to the geographical location of the robbery, though not sufficient in itself, can be a strong contributing factor. See Pinion, 800 F.2d at 979-980. The defendant's erratic driving and furtive glances contributed to a finding of probable cause. When Mauk got out of the pickup truck, he was sweating heavily, which would be consistent with his being the robber who had been seen running down the street. These facts, when taken together, are sufficient to establish probable cause for the stop and the arrest.

AFFIRMED.