United States v. Johnson

MEMORANDUM **

We need not decide the waiver issue raised by Johnson under Federal Rule of Criminal Procedure 59(b), because accepting the magistrate’s conclusion that this was a stop and frisk, the government still prevails. Thus we assume for purposes of discussion that there was a stop and frisk and analyze it under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). This required only reasonable suspicion, not probable cause. United States v. Soyland, 3 F.3d 1312 (9th Cir.1993), has no applicability, because that was an arrest, requiring probable cause. Reasonable suspicion arose because (1) it was around 1:00 a.m., United States v. Mattarolo, 209 F.3d 1153, 1157 (9th Cir.2000); (2) marijuana smoke emanated from Johnson and the other three individuals he was standing outside Squiggy's Bar with, United States v. Mayo, 394 F.3d 1271, 1275 (9th Cir.2005); (3) this is a rough bar where multiple murders have taken place, in a rough neighborhood in terms of gang activity, Illinois v. Wardlow, 528 U.S. 119, 124 , 120 S.Ct. 673 , 145 L.Ed.2d 570 (2000); (4) Johnson started leaving when the police arrived, United States v. Holzman, 871 F.2d 1496, 1502 (9th Cir.1989).…