935 F.3d 878 (10th Cir. 2019), 18-4039, United States v. Gurule

Docket Nº:18-4039
Citation:935 F.3d 878
Opinion Judge:TYMKOVICH, Chief Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Tommy GURULE, Defendant-Appellee.
Attorney:Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States Attorney, with him on the briefs), Office of the United States Attorney, Salt Lake City, Utah, for Appellant. Daphne Oberg, Assistant Federal Public Defendant (Kathryn N. Nester, Federal Public Defender, and Bretta Pir...
Judge Panel:Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.
Case Date:July 11, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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935 F.3d 878 (10th Cir. 2019)

UNITED STATES of America, Plaintiff-Appellant,

v.

Tommy GURULE, Defendant-Appellee.

No. 18-4039

United States Court of Appeals, Tenth Circuit

July 11, 2019

Page 879

[Copyrighted Material Omitted]

As Amended on Limited Grant of Panel Rehearing August 30, 2019 Nunc Pro Tunc July 11, 2019

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. NO. 2:17-CR-00485-DS-1)

Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States Attorney, with him on the briefs), Office of the United States Attorney, Salt Lake City, Utah, for Appellant.

Daphne Oberg, Assistant Federal Public Defendant (Kathryn N. Nester, Federal Public Defender, and Bretta Pirie, Assistant Federal Public Defender, with her on the brief), Office of the Federal Public Defender, Salt Lake City, Utah, for Appellee.

Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.

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ORDER

This matter is before the court on the Appellee’s Petition for Rehearing En Banc ("Petition"). As an initial matter, we sua sponte grant panel rehearing for the limited purpose of amending our July 11, 2019 opinion at page 8. The original version of the opinion is withdrawn and shall be replaced by the attached revised opinion. Because the revised opinion contains only non-substantive changes that do not affect the outcome of this appeal, it shall be filed nunc pro tunc to the date the original opinion was filed. Appellee may not file a second or successive rehearing petition. See 10th Cir. R. 40.3.

The Petition and the attached revised opinion were transmitted to all judges of the court who are in regular active service. As no member of the panel and no judge in regular active service requested that the court be polled, the request for en banc review is denied. See Fed. R. App. P. 35(f).

Appellee’s Motion for Leave to File a Reply to the Government’s Response to Appellee’s Petition for Rehearing En Banc is denied.

Opinion

TYMKOVICH, Chief Judge.

Tommy Gurule was frisked during a routine traffic stop of a car in which he was a passenger. When officers discovered a pistol, he was arrested and charged under 18 U.S.C. § 922(g) as a felon in possession of a firearm. Gurule moved to suppress both the pistol and his subsequent confession as the products of an illegal search.

The district court granted this motion, concluding Gurule had been unlawfully detained during the traffic stop and the officers lacked the necessary reasonable suspicion to frisk him.

We reverse. We conclude the officers did not violate the Fourth Amendment when they (1) reasonably detained Gurule and the other occupants of the car prior to the search; and (2) frisked Gurule after they observed a gun in his pocket and had otherwise developed the reasonable suspicion he might be armed and dangerous.

I. Background

On the night of June 29, 2017, an officer from the West Valley City street crimes unit observed a sedan commit several traffic infractions. The officer initiated a traffic stop, and the car pulled into the parking lot of a nearby gas station. The parking lot was poorly lit, with a fence to the vehicles’ right, the station to their left, and a darkened field beyond.

The sedan contained three occupants— two in front and one in back. None possessed a valid driver’s license, and the driver had accumulated multiple misdemeanor warrants, which she volunteered to the officer upon first contact. As the officer conducted a records check, one of his colleagues arrived to provide backup. Upon his arrival, the second officer made idle conversation with the occupants of the vehicle and focused primarily on securing the

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scene. The sedan was outfitted with tinted windows and also contained a great deal of property, since the driver apparently was living out of her car.

After completing a records check, the driver was informed that a licensed driver was required to operate the vehicle lawfully. The officer also told the driver he would not arrest her if she revealed the presence of any contraband in the sedan. In response, she volunteered that the officers could search her vehicle to verify her claim that it contained nothing illegal. The officer confirmed her consent to the search and asked that she contact a licensed driver.

The officers then asked the vehicle’s passengers to exit. Upon leaving the car, the front-seat passenger consented to a protective frisk. The officers then asked the back-seat passenger— Tommy Gurule— if they could also perform a protective frisk. Gurule twice told the officers that he would not consent to a search, and was directed to sit at a nearby curb.

Gurule had initially engaged officers in a friendly manner— even volunteering that a bottle of alcohol in the sedan was his, so as not to incriminate the driver. As one officer asked repeatedly whether Gurule possessed any weapons, both officers began expressing concern that he was responding deceptively. Gurule disputed that he was acting uncooperatively and stated that he had no weapon. Unsatisfied with this response, one of the officers ordered Gurule to stand.

As Gurule began to stand, the other officer noted a visible bulge in Gurule’s right-front pocket. That officer took hold of Gurule’s right arm as a protective action. He then observed a gun in Gurule’s right-front pocket. Both officers handcuffed Gurule before confiscating a pistol. Gurule’s equivocal response to questioning about his criminal history prompted further investigation, which revealed a prior felony conviction. He was arrested and— in a post-arrest interview— confessed to knowingly possessing the pistol.

Gurule subsequently filed a motion to suppress both the firearm and his post-arrest statements, arguing they were fruits of an unlawful detention and search. After an evidentiary hearing at which both officers testified, the district court concluded Gurule should have been free to leave the scene on foot before the protective search. The district court also found that— even had Gurule’s detention been lawful— the officers had not developed the requisite reasonable suspicion to frisk him.

II. Analysis

The government contends that (1) the officers...

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