U.S. v. Willis

Decision Date19 December 2005
Docket NumberNo. 04-10079.,04-10079.
Citation431 F.3d 709
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Mark Lamond WILLIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Anne R. Traum, Assistant Federal Public Defender, Las Vegas, NV, for the defendant-appellant.

Andrew W. Duncan (argued) and Thomas S. Dougherty, Assistant United States Attorneys, Las Vegas, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding. D.C. No. CR-03-00157-MP/LRL.

Before: KOZINSKI, W. FLETCHER, and BYBEE, Circuit Judges.

BYBEE, Circuit Judge.

Appellant Mark Lamond Willis appeals the denial of his motion to suppress evidence following his conditional guilty plea for violation of 18 U.S.C. §§ 922(g) and 924(a)(2), felon in possession of a firearm and forfeiture of the firearm. Willis moved to suppress the firearm found in his possession as the fruit of an illegal seizure. See U.S. CONST. amend. IV. Finding his arguments unpersuasive, we affirm the district court's denial of the motion to suppress evidence and affirm Willis's conviction.

I

On December 19, 2002, around 2:00 a.m., Las Vegas Metropolitan Police Department ("LVMPD") Officer Carl Boehmer "observed a [white two-door] vehicle turning rapidly onto Las Vegas Boulevard . . ." Officer Boehmer testified that the vehicle's rapid turn attracted his attention because "[i]t was just a more excessive turn than a citizen should[make]." He followed the vehicle as it made two more quick turns before stopping in front of an apartment building in a high-crime area. Officer Boehmer then watched a male (later identified as Willis) get out of the car, sprint across the street and up the stairs to the second floor of an apartment building, and pound on the door until he was admitted into one of the apartments. When Officer Boehmer drove past the vehicle, he noticed that Willis had left the windows down, which he thought was unusual because there are "many stolen vehicles in that area . . . [and] gang activity. . . ." He then ran a check on Willis's Colorado license plate, and notified his dispatch unit to request a backup unit.

The LVMPD Communications Center informed Officer Boehmer that the car was listed as a "suspicious vehicle" and that there was a National Crime Information Center ("NCIC") missing person's report or "hit" associated with the license plate.1 After receiving this information, Officer Boehmer positioned himself in an alley where he could watch the car and the apartment. Shortly thereafter, Officer D. Miller arrived, and as Officer Boehmer was describing the situation, Willis exited the apartment, reentered his vehicle, made an illegal U-turn, and drove a short distance before pulling over in front of a second apartment complex a block or two away. Officers Boehmer and Miller each made U-turns, turned on their overhead lights, and boxed in Willis's car.

As the officers parked their vehicles, Willis stepped out of his car and looked nervously from side-to-side at the patrol cars. Officer Boehmer testified that he believed that Willis was contemplating running away, and he ordered Willis to step in front of the vehicle and show his hands. Officer Boehmer testified that he "immediately began ordering commands to him to step to the front of my vehicle, and also to take his hands out of his pockets because at the time he had his hands in his jacket pockets. . . . [F]rom my experience again, someone that . . . immediately opens up their vehicle and jumps out and begins looking side to side pretty frantically is, in my experience they've always taken off running. So before. . . he had a chance to, I just started giving commands."

Willis complied, and as Officer Boehmer approached him, Officer Boehmer asked, "Do you have anything on you I should know about?" Willis replied, "Yes, I do." When Officer Boehmer asked "what is it?", Willis answered: "a gun." Officer Miller requested permission from Willis to look inside his pockets, which Willis gave, and the officer retrieved a fully loaded.25 caliber handgun from Willis's jacket.

Officer Boehmer questioned Willis about the firearm while Officer Miller "proceeded to take care of the missing person['s report]." Willis explained to the officers that the person identified in the report was his girlfriend and that she was in his apartment.2 Officer Miller conducted an interview with Willis's girlfriend upstairs in the apartment complex. Officer Boehmer testified that "she was okay, and she stated that she had talked with her family and it [the NCIC missing person's report] needed to be cleared out of the system."

Willis admitted to the officers that he had been convicted of crimes in Hawaii and Colorado. Officer Boehmer confirmed this through a criminal history check, and he arrested Willis for being an "ex-felon in possession of a firearm, carrying a concealed weapon, [and] ex-felon failure to register."

Willis moved to suppress the evidence of the handgun. He argued that the officers had violated his Fourth Amendment rights by detaining and searching him, and that the evidence of the handgun was the illegal fruit of that detention and search. The magistrate judge concluded in his report and recommendation that the officers had no "reasonable articulable suspicion. . . of criminal activity" to justify an investigatory Terry stop. See Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, the magistrate judge found that "[u]nder these circumstances . . . Officer Boehmer's community caretaking function required him to take reasonable steps in an effort to determine the current status of the alleged missing person. His failure to do so would have amounted to a dereliction of duty."

The district court adopted the magistrate judge's report and recommendation over Willis's objections. Willis entered a conditional guilty plea, preserving his objection to the denial of his motion to suppress the evidence recovered during the search. The district court sentenced Willis to a term of thirty-three months imprisonment. Willis appeals the denial of his motion to suppress.3

II

Willis argues that neither the community caretaking function nor the related emergency aid doctrine justified his seizure. He also argues that the police officers did not have reasonable suspicion for the stop, and that the government waived its arguments advocating reasonable suspicion when it failed to object to the findings of the magistrate judge's report.4

We decline to determine whether the community caretaking function, or the emergency aid doctrine, justified the officers' detention of Willis. Instead, we hold that the detention came within the scope of a valid traffic stop, because Officer Boehmer had at least reasonable suspicion — if not probable cause — to stop Willis for violating the traffic laws. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."); see also Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) ("the usual traffic stop is more analogous to a so called `Terry stop' than to a formal arrest"; holding that a traffic stop requires reasonable suspicion (internal citation omitted)); United States v. Lopez-Soto, 205 F.3d 1101, 1104-05 (9th Cir.2000) ("the Fourth Amendment requires only reasonable suspicion in the context of investigative traffic stops"; holding that "the Court in Whren [did not] intend[ ] to change this settled rule"). Since Willis's detention was supported by reasonable suspicion, the officers could reasonably question Willis to ensure their own safety. Once Willis admitted possessing the weapon, the officers' search to relieve Willis of his weapon was also reasonable.

A

"The Fourth Amendment prohibits `unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citing United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Such investigatory stops are justified by "reasonable suspicion" that criminal activity may be afoot. Arvizu, 534 U.S. at 273, 122 S.Ct. 744; see also United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Cortez, 449 U.S. at 417, 101 S.Ct. 690. "[T]he Fourth Amendment's proper function is to constrain, not against all intrusions . . . but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The "touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (citations omitted).

Although we look to reasonableness in determining the propriety of a stop under the Fourth Amendment, the Supreme Court's decision in Whren v. United States does not require us to determine the reasonableness of a temporary detention if there is reasonable suspicion to conclude that a traffic violation occurred. Whren, 517 U.S. at 818-19, 116 S.Ct. 1769. In Whren, a unanimous Supreme Court held that a stop was reasonable under the Fourth Amendment where officers had probable cause to believe that the petitioner violated the traffic code, even if the ultimate charge was not related to the traffic stop. Id. at 808-09, 116 S.Ct. 1769. Police observed a truck in a "high...

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