                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                              FOR THE NINTH CIRCUIT                         NOV 08 2012

                                                                       MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                         No. 12-10038

                Plaintiff - Appellee,             D.C. No. 4:11-CR-00149-PJH-1

  v.
                                                  MEMORANDUM *
ZUBERI SEEL STEEL,

                Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Northern District of California
                     Phyllis J. Hamilton, District Judge, Presiding

                        Argued and Submitted October 16, 2012
                              San Francisco, California

Before: B. FLETCHER **, D.W. NELSON, and MURGUIA, Circuit Judges.

       Zuberi Seel Steel appeals the denial of a motion to suppress evidence of a

firearm he was charged with possessing. This Court reviews de novo a district




            *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Betty Binns Fletcher, Senior Circuit Judge for the Ninth
Circuit Court of Appeals, fully participated in the case and concurred in the
judgment prior to her death.
court’s denial of a motion to suppress, and reviews the district court’s factual

findings underlying the denial of the motion for clear error. United States v.

Shetler, 665 F.3d 1150, 1156 (9th Cir. 2011). We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

       The district court did not err in finding that reasonable suspicion existed to

warrant a Terry stop. A police officer may conduct an investigatory stop, or Terry

stop, to prevent ongoing or imminent crime. Terry v. Ohio, 392 U.S. 1, 30 (1968).

Here, Officer Sanchez “observe[d] unusual conduct which [led] him reasonably to

conclude in light of his experience that criminal activity may [have] be[en]

afoot . . . .” Id.

       The district court also correctly determined that Steel’s detention was a valid

investigatory stop under Terry, not an unlawful arrest. Whether an unlawful arrest

occurs depends on whether the use of force in detaining the suspect was justified

under the totality of the circumstances, weighing the intrusiveness of the stop

against the justification for using such tactics. United States v. Miles, 247 F.3d

1009, 1012 (9th Cir. 2001). In applying this test, the court considers “the

aggressiveness of the methods used by police and the degree to which the suspect’s

liberty was restricted,” and “whether the officer had sufficient basis to fear for his

or her safety warranting a more intrusive action.” United States v. Rousseau, 257


                                           2
F.3d 925, 929 (9th Cir. 2001). Here, Sanchez’s use of force in stopping Steel and

handcuffing him was justified given Sanchez’s reasonable safety concerns. Steel

did not cooperate with Sanchez’s repeated commands to stop, did not comply with

Sanchez’s order to put his hands behind his back, and made a movement with his

right elbow towards his right side — a gesture which made Sanchez concerned that

Steel was either carrying a firearm or attempting to discard contraband.

      AFFIRMED.




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