United States v. Clark

dissenting.

I respectfully dissent. I would reverse the district court’s ruling on the suppression motion on the abandonment ground and remand. The searnh-ineident-to-arrest theory upon which the majority affirms was not reached by the district court, although it was raised, first, in the government’s opposition to the motion to suppress.

The theory on which the majority affirms rests on factual premises that have not been resolved, necessary to determine whether there was probable cause to arrest for resisting arrest and related offenses (none of which were ever prosecuted). See United States v. Ortiz-Hernandez, 427 F.3d 567, 573 (9th Cir.2005) (per curiam) (noting the search-incident-to-arrest theory involves a mixed question of fact and law). The unresolved factual issues include, for example, whether Officer Kaffer instructed Clark to stop prior to grabbing him and whether Officer Clark pushed Clark off of the landing of the trailer and thereby created a danger of serious injury. See State v. Bradley, 141 Wash.2d 731 , 10 P.3d 358, 361 (2000) (holding that the actual risk of serious injury is a defense to the charge of assaulting a police officer); State v. Little, 116…

MEMORANDUM **

Elmer J. Clark (Clark) appeals the district court’s denial of his motion to suppress. The district court’s finding of abandonment was clear error as there was insufficient evidence to objectively establish a denial of ownership or voluntary physical relinquishment by Clark of the property containing evidence sought to be suppressed. However, the search was conducted incident to a lawful arrest. Clark suffered no prejudice from the district court’s reaching a proper result using erroneous rationale. Reversal is neither necessary nor appropriate. See United States v. Doe, 136 F.3d 631, 636 (9th Cir.1998) (citing United States v. Castillo-Felix, 539 F.2d 9, 13 (9th Cir.1976)); United States v. Todhunter, 297 F.3d 886, 889 (9th Cir.2002) (stating that the court may affirm the district court’s denial of a motion to suppress “ ‘on any basis fairly supported by the record’ ”) (quoting United States v. Mariscal, 285 F.3d 1127, 1129 (9th Cir. 2002)).

Clark also challenges the district court’s consideration of evidence of predicate prior convictions in classifying him as a career criminal. Prior convictions are appropriate for consideration as sentencing factors.…