United States v. Guerrero, 21-1244

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtTHOMPSON, Circuit Judge.
Citation19 F.4th 547
Parties UNITED STATES of America, Appellant, v. Juan GUERRERO, a/k/a Pawtucket, Defendant, Appellee.
Docket NumberNo. 21-1244,21-1244
Decision Date06 December 2021

19 F.4th 547

UNITED STATES of America, Appellant,
Juan GUERRERO, a/k/a Pawtucket, Defendant, Appellee.

No. 21-1244

United States Court of Appeals, First Circuit.

December 6, 2021

Lauren S. Zurier, Assistant United States Attorney, with whom Richard B. Myrus, Acting United States Attorney, was on brief, for appellant.

George J. West for appellee.

Before Thompson, Lipez, and Kayatta, Circuit Judges.

THOMPSON, Circuit Judge.

19 F.4th 549


"Policing is difficult and dangerous work," though sometimes "so is being a citizen trying to exercise his Fourth Amendment right to be free from unreasonable seizures." See United States v. Knights, 989 F.3d 1281, 1291 (11th Cir. 2021) (Rosenbaum, J., concurring in the judgment).1 The Fourth Amendment's core command is reasonableness. See United States v. Rodriguez-Morales, 929 F.2d 780, 786 (1st Cir. 1991) (citing Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ). Reasonableness usually requires balance. And balance typically requires an appreciation of the "community['s]" interest "in being free from the menace of crime" and the "individual['s]" interest "in being left alone by the police." See United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir. 1988) (Posner, J., for the court); see also United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985).

Take, for example, "investigative detentions involving suspects in vehicles," see Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) — the context of today's case. Because of the perils associated with such situations, concerns about officer safety support a warrantless "protective" weapons "search[ ]" of the suspects and the area within their grab space, even if they are not under arrest — but only if the police "reasonabl[y] belie[ve]" the suspects are "dangerous" and "may gain immediate control of weapons." Id. at 1049-50, 103 S.Ct. 3469.

Applying Long years later, we said in United States v. Lott that officers cannot do a "frisk for weapons ... where, although the circumstances might pass an objective test," the police "were not actually concerned for their safety." See 870 F.2d 778, 783-84 (1st Cir. 1989) (first emphasis added). Other First Circuit panels then read that statement as requiring that officers be subjectively and objectively worried about their safety. A good exemplar is United States v. Ivery, which reasoned from Lott that "(1) the officers must have actually harbored a suspicion that the suspect was armed" and that "(2) [this] suspicion must have been reasonable under the circumstances." See 427 F.3d 69, 72 (1st Cir. 2005).

But over the many decades since Lott came on the scene, the Supreme Court has issued opinion after opinion interpreting (in various contexts) the Constitution's reasonableness command as not depending on the officer's "actual motivations" — and that is because the Fourth Amendment generally prefers "objective" inquiries over "subjective" ones. These quotes are from Whren v. United States, for instance. See 517 U.S. 806, 812-14, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). United States v. McGregor signaled that Whren's "reasoning" might put Lott's actual-fear test in serious jeopardy. See

19 F.4th 550

650 F.3d 813, 821-22 (1st Cir. 2011). But because the government did not press the matter there, we did not take up the topic. See id. at 822 (remarking that other cases — Ivery, 427 F.3d at 73, and United States v. Nee, 261 F.3d 79, 85 (1st Cir. 2001) — had also flagged the issue without resolving it).

The issue McGregor (and others) spotlighted is now squarely before us, however.

The government appeals — as allowed under 18 U.S.C. § 3731 — the grant of Juan Guerrero's motion to suppress evidence seized during a protective search of a car. Rejecting the government's claim that Supreme Court rulings since Lott justify dumping Lott's actual-fear analysis, a district judge found that while the officers had an objectively reasonable basis for the search, they had no subjective concerns for their safety. Still convinced that it is right, the government asks us to ditch the actual-fear requirement and undo the judge's suppression decision.

The government's argument implicates the "law of the circuit" rule, which ordinarily forces us — and the district courts under us — to follow the holdings of earlier panel decisions regardless of how anyone might feel about them. But as with many rules, exceptions exist. And the one the parties fight over comes into play when "authority that postdates the original decision, although not directly controlling, ... nevertheless offer[s] a compelling reason for believing that the former panel, in light of new developments, would change its collective mind." See United States v. Guzmán, 419 F.3d 27, 31 (1st Cir. 2005). Agreeing with the government that this exception applies, we conclude that Lott's actual-fear inquiry is no longer controlling and so reverse the judge's evidence suppression and remand for further proceedings.

How This Case Arose2

Stop and Search

A Saturday night in Providence, Rhode Island, October 21, 2019 — around 1 a.m. Responding to a "shots fired" call from a nearby laundromat, police officers in separate cruisers saw a dark BMW sedan racing away from the alleged crime scene. After turning around, the officers started tailing the car. One of them flipped on his lights and siren to pull the BMW over. But the sedan kept on going, carelessly making several quick turns. The car eventually stopped, however. And the officers (now joined by backup) exited their cruisers with guns drawn. Nearing the car, they ordered the driver, who turned out to be Guerrero, and the passenger, who turned out be a 16-year-old minor, to get out. The minor did as directed, got handcuffed, and ended up in a police cruiser. The officers repeatedly told Guerrero to get on the ground. Finally doing as asked, he also got cuffed and put in a cruiser. A search of the BMW uncovered a magazine loaded with bullets in a backpack behind the driver's seat. Having found the magazine, the officers searched the rest of the car (including the trunk) for a firearm but came up empty.

With the search out of the way, the officers got the passenger's info, which is when they learned he was a minor. They called his mother and drove him home. But they arrested Guerrero for eluding law enforcement.

Legal Proceedings

That was not Guerrero's only legal trouble, however, for the feds later charged him with unlawful possession of ammunition

19 F.4th 551

under 18 U.S.C. § 922(g)(1). Pleading not guilty, Guerrero moved to suppress the evidence seized in the search. What happened next is a bit involved. But an abbreviated version suffices for present purposes.

The government opposed Guerrero's motion. The judge held an evidentiary hearing. And after considering post-hearing arguments, the judge granted Guerrero's suppression request. His analysis ran like this.

Lott, the judge wrote, says the government must "show[ ] ... both that the officers were subjectively motivated by officer safety and that the motivation was objectively reasonable." Turning to Lott's objective prong, the judge found that the concatenation of circumstances — e.g. , "the BMW's temporal and geographic proximity to the gun shots, the direction in which the BMW was travelling (away from the location of the gun shots), Guerrero's reckless and evasive driving, and his lack of compliance with officer commands" — raised legitimate concerns about officer safety. Plus the judge thought that the minor's temporary restraint created conditions justifying a protective search of the BMW. Moving then to Lott's subjective prong, the judge found that the collection of facts — e.g. , the officers' not frisking or closely watching the minor, despite testifying that they worried for their safety, as well as their "demeanor, as documented in the body camera footage" — showed they "lacked" an actual "fear of the sixteen-year-old passenger" and "demonstrate[d] an eye towards investigation and prosecution, not officer safety."

The judge noted that after Lott the Supreme Court decided Whren, which held that "the constitutional reasonableness of traffic stops depends" on objective factors (like the violation of traffic laws), not "on the actual motivations of the individual officers involved" — and thus meant that "[s]ubjective intentions" have "no role in ordinary, probable-cause Fourth Amendment analysis." See 517 U.S. at 813, 116 S.Ct. 1769. And the judge also noted that our McGregor opinion suggested — without deciding the point — that Whren might undercut Lott's actual-fear prong. But the judge concluded that " Lott remains good (if vulnerable) law."

The government moved for reconsideration, talking up not only Whren but also Maryland v. Buie, where the Supreme Court held that officers lawfully entering a house to make an arrest can protectively sweep adjacent rooms "from which an attack could be immediately launched," see 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) — regardless of their subjective fears, see id. at 337 & n.1, ...

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6 cases
  • United States v. Mulkern, 21-1475
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 27, 2022
    ...with the actual beliefs and motivations of the officers on the scene. See Monell, 801 F.3d at 40 ; see also United States v. Guerrero, 19 F.4th 547, 553–59 (1st Cir. 2021) (surveying Supreme Court and circuit precedent reiterating the objectivity of Fourth Amendment inquiries).We therefore ......
  • United States v. Mulkern, 21-1475
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 27, 2022
    ...with the actual beliefs and motivations of the officers on the scene. See Monell, 801 F.3d at 40; see also United States v. Guerrero, 19 F.4th 547, 553-59 (1st Cir. 2021) (surveying Supreme Court and circuit precedent reiterating the objectivity of Fourth Amendment inquiries). We therefore ......
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    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • June 29, 2022
    ...is committing, or will soon commit a crime - ‘even though there is no probable cause to make an arrest.'” United States v. Guerrero, 19 F.4th 547, 554 (1st Cir. 2021) (quoting Terry, 392 U.S. at 22). In addition to allowing a brief detention, Terry held that officers “may also frisk the per......
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    • United States District Courts. 4th Circuit. Western District of North Carolina
    • April 25, 2022
    ...armed and dangerous and “may gain immediate control of weapons.” Michigan v. Long, 463 U.S. 1032, 1049 (1983); United States v. Guerrero, 19 F.4th 547, 554 (1st Cir. 2021). Such a protective sweep of a vehicle can be justified even if the suspect is no longer in the car and “is under police......
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