FILED

NOT FOR PUBLICATION

JAN 07 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10518

Plaintiff - Appellant, D.C. No. 4:13-cr-00787-YGR-1

v.

MEMORANDUM*

KRAIG HILL,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted December 8, 2015 San Francisco, California

Before: WARDLAW, W. FLETCHER, and MURGUIA, Circuit Judges.

The government appeals the district court’s grant of Kraig Hill’s suppression

motion. We have jurisdiction pursuant to 18 U.S.C. § 3731, and we affirm.

Although it was error (1) to suppress evidence based on the falsity of the

testimony of Officers Scheuller and Miguel, see United States v. Thomas, 726 F.3d

1086, 1093 (9th Cir. 2013), and (2) to conclude that Hill was unlawfully seized

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. when ordered to get out of his car, see Pennsylvania v. Mimms, 434 U.S. 106,

110–11 (1977), we “may affirm on any basis supported by the record,” United

States v. McClendon, 713 F.3d 1211, 1218 (9th Cir. 2013). We affirm the grant of

Hill’s suppression motion because, even assuming the officers had reasonable

suspicion to stop Hill, they were, at most, investigating a completed misdemeanor,

and so the manner and duration of the stop were unreasonable. See United States

v. Grigg, 498 F.3d 1070, 1074–75, 1081–83 (9th Cir. 2007).

As the district court recognized, “the governmental interest in investigating

possible criminal conduct based on an officer’s reasonable suspicion may be

outweighed by the Fourth Amendment interest of the driver in remaining secure

from the intrusion.” Id. at 1075. The alleged misdemeanor traffic violation

occurred roughly fifteen minutes before the officers stopped Hill. By that time,

Hill had parked the Mercedes in a hotel parking garage and had not been operating

the vehicle for almost ten minutes. Hill was, at most, “a suspect in a past crime

who now appear[ed] to be going about his lawful business,” United States v.

Hensley, 469 U.S. 221, 228 (1985), and he presented no “potential for ongoing or

repeated danger,” Grigg, 498 F.3d at 1081. Accordingly, the stop was not

reasonable. See id. at 1081–82.

AFFIRMED.

2

FILED

United States v. Hill, No. 14-10518

JAN 07 2016

MURGUIA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent. While I agree that the district court erred in granting

Hill’s motion to suppress based on the officers’ false testimony and act of ordering

Hill out of the car, I do not agree that the record in this case clearly demonstrates

that Hill’s stop was unreasonable. See United States v. Willis, 431 F.3d 709,

714–15 (9th Cir. 2005). Because the district court’s focus was on the events

subsequent to the stop, rather than the stop itself, I would vacate the district court’s

order and remand for any further factual development, and for the district court to

determine in the first instance the legality of the stop, including whether the stop

was unreasonable under United States v. Grigg, 498 F.3d 1070 (9th Cir. 2007).