NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 26 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30243

Plaintiff-Appellee, D.C. No. 2:18-cr-00079-TSZ-1 v.

MARIO KEITH BROOKS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Submitted November 5, 2019** Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,*** District Judge.

Appellant, Mario Keith Brooks, appeals the district court’s denial of his

motion to suppress and his subsequent criminal conviction. This Court has

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the district court’s decision

de novo, United States v. Fowlkes, 804 F.3d 954, 960 (9th Cir. 2015), we affirm.

On January 13, 2018, the Tukwila Police Department (“TPD”) received a

911 call from a resident (“Caller”) of a local apartment complex. The Caller

reported that there was suspected drug activity taking place in the parking lot of

her complex as two men were behaving suspiciously. While watching the men, the

Caller reported that different people were approaching the men and, after a brief

interaction, leaving. Additionally, the Caller noted that during one of the

interactions she witnessed money exchanging hands. TPD responded to the call

with four officers. This apartment complex had become riddled with trespassers

and illegal activity, and police involvement was requested by management staff in

a formal agreement. The TPD officers arrived on scene and approached the two

men described by the Caller. The TPD officers briefly questioned the Appellant.

Afterwards, the TPD officers called in Appellant’s name and date of birth to the

dispatcher. The dispatcher responded with an unconfirmed state patrol warning that

Appellant was armed, dangerous, and a threat to law enforcement. According to

the dispatcher, Appellant previously attempted to pull a loaded firearm when

contacted by police. After receiving the warning, the TPD officers asked the

Appellant if they could frisk him and he voluntarily consented.

2 18-30243 The district court’s denial of the Appellant’s motion to suppress and

Appellant’s subsequent criminal conviction are supported by the record. The

question presented is whether the evidence, the firearm in Appellant’s possession,

was discovered pursuant to a lawful frisk. Here, the frisk of Appellant was

supported on two grounds. First, the TPD officers had reasonable suspicion to

believe the Appellant was armed and dangerous, warranting the frisk. Terry v.

Ohio, 392 U.S. 1, 24 (1968); Thomas v. Dillard, 818 F.3d 864, 875–76 (9th Cir.

2016). The TPD officers received a caution that the suspect previously attempted

to pull a gun on a law enforcement officer. Additionally, Appellant gave

inconsistent answers when asked if he had any weapons. This bolstered the TPD

officers’ reasonable suspicion to believe Appellant was armed and dangerous.

Second, Appellant consented to the frisk. Where an individual voluntarily

consents to a search, the Fourth Amendment is not implicated. Katz v United

States, 389 U.S. 347, n.22 (1967); United States v. Russell, 664 F.3d 1279, 1281

(9th Cir. 2012). Appellant responded with a clear and unequivocal “sure” when the

TPD officers asked to frisk him, and the record supports that his consent “was

given ‘freely and voluntarily.’” Russell, 664 F.3d at 1281 (quoting United States v.

Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997)).

AFFIRMED.

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