Kitchen

MEMORANDUM *

Defendant Arnold Kitchen appeals the district court’s denial of his motion to suppress evidence. He also challenges the constitutionality of his sentence under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). We review denial of Kitchen’s motion to suppress de novo, see United States v. Wright, 215 F.3d 1020, 1025 (9th Cir.), cert, denied, — U.S. -, 121 S.Ct. 406 , 148 L.Ed.2d 313 (2000), and we reverse.

Kitchen argues that the officers, when they first approached him, unlawfully stopped him because they lacked reasonable suspicion under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). We agree. “[Rjeasonable suspicion exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion.” United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir.) (en banc), cert, denied, — U.S. -, 121 S.Ct. 211 , 148 L.Ed.2d 148 (2000). Presence in a high-crime area, by itself, is not enough to create reasonable suspicion. Id. at 1138. It is, however, a permissible consideration when determining whether reasonable suspicion…

I see this differently, because once Kitchen fled, the deputies knew that there had been some kind of hand-to-hand exchange in the parking lot of a convenience store around 11:00 p.m. (which they thought could be a drug deal), that each participant had put his hand in his pocket, and that, having seen the marked patrol car pulling into the lot, the two did an about face and went in different directions. Kitchen walked away at a normal pace, but looked back several times and that seemed unusual. More importantly, the deputies knew that Kitchen had been willing to talk and to let them pat him down — but, when they approached his pocket, he tried to run. Added to their knowledge of violence as well as drugs in the area, they were entitled to stop Kitchen at this point and for their own safety, handcuff him and complete them search as well as conduct a reasonable inquiry commensurate with a Terry stop. 1 That the officers also Mirandized Kitchen and arrested him on obstruction charges is irrelevant to admissibility of the gun. The deputies could validly detain Kitchen for investigatory purposes and for that purpose he was not free to leave anyway. While it would certainly matter…