United States v. Guerrero

• Decision Date: 02 September 2022
• Docket Number: 21-10248
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sergio GUERRERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

47 F.4th 984 (Mem)

UNITED STATES of America, Plaintiff-Appellee,

v.Sergio GUERRERO, Defendant-Appellant.

No. 21-10248

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 16, 2022 San Francisco, California

Filed September 2, 2022

J. Ryan Moore (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Defendant-Appellant.

Angela W. Woolridge (argued), Assistant United States Attorney; Christina M. Cabanillas, Deputy Appellate Chief; Gary M. Restaino, United States Attorney; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.

Before: Sidney R. Thomas, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Gould ;

Concurrence by Judge Bea ;

Dissent by Judge S.R. Thomas

PER CURIAM:

After the district court denied his motion to suppress, Sergio Guerrero pled guilty to smuggling ammunition in violation of 18 U.S.C. § 554(a). Guerrero timely appealed the denial of his motion to suppress. This appeal challenges that denial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review the district court's denial of a motion to suppress de novo. United States v. Edwards , 761 F.3d 977, 981 (9th Cir. 2014). We review de novo mixed questions of law and fact, such as whether a seizure became a de facto arrest and whether an officer had reasonable suspicion or probable cause. Id. ; Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We review whether the exclusionary rule applies de novo and the district court's underlying factual findings for clear error. United States v. Crawford , 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc).

The Fourth Amendment prohibits unreasonable searches and seizures by the government. U.S. Const. amend. IV. "Searches and seizures ‘conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject to only a few specifically established and well delineated exceptions.’ " United States v. Brown , 996 F.3d 998, 1004 (9th Cir. 2021) (quoting Minnesota v. Dickerson , 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ). One exception is a Terry stop, which allows an officer briefly to detain an individual when the officer has a reasonable articulable suspicion that an individual is engaged in a crime; an officer conducting a Terry stop may also conduct a limited protective frisk of the individual if the officer has reason to believe he or she has a weapon. Id. at 1001 ; Terry v. Ohio , 392 U.S. 1, 21, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Another exception is when an officer has probable cause to arrest an individual. Brown , 996 F.3d at 1005. "In distinguishing between a Terry stop and a full-blown arrest, we consider whether a reasonable person would believe that he or she is being subjected to more than a temporary detention, as well as the justification for the use of such tactics, i.e. , whether the officer had sufficient basis to fear for his safety to warrant the intrusiveness of the action taken." Id. at 1006 (simplified and internal quotation marks omitted).

We affirm the denial of Guerrero's motion to suppress because of the consistent conclusions of Judge Gould and Judge Bea, representing a majority of the panel, that we should affirm the denial of the motion to suppress. Affirmance is required by the conclusions of the judges in the majority, even though the reasoning of Judge Gould and Judge Bea in their separate concurrences filed herewith is different. Subjoined to this brief opinion are (1) the separate concurrence of Judge Gould; (2) the separate concurrence of Judge Bea; and (3) the dissent of Judge S.R. Thomas.

GOULD, Circuit Judge, concurring:

I concur in affirming the denial of Guerrero's motion to suppress on the grounds that Trooper Amick effectuated a de facto arrest supported by probable cause.

I

Trooper Amick effectuated a de facto arrest of Guerrero, which required probable cause. First, Trooper Amick detained Guerrero for approximately one hour. Terry stops are brief detentions. Id. at 1005 ; United States v. Place , 462 U.S. 696, 709, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) ("[T]he brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion."). Here, Trooper Amick's detention of Guerrero for approximately one hour, while not dispositive on its own, see United States v. Sharpe , 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), is a strong indicator that Guerrero's detention was not just a Terry stop, but was actually an arrest.

Second, Trooper Amick handcuffed Guerrero while awaiting the arrival of federal agents. "Handcuffing as a means of detaining an individual does not automatically escalate a stop into an arrest, but it ‘substantially aggravates the intrusiveness of an otherwise routine investigatory detention and is not part of a typical Terry stop.’ " Reynaga Hernandez v. Skinner , 969 F.3d 930, 941 (9th Cir. 2020) (quoting United States v. Bautista , 684 F.2d 1286, 1289 (9th Cir. 1982) ). The circumstances surrounding Guerrero's handcuffing are particularly suggestive of intrusiveness beyond a Terry stop. Guerrero was handcuffed for a significant amount of time: thirty to forty minutes. Trooper Amick also handcuffed Guerrero despite the fact that Guerrero had been cooperative and respectful during the encounter. See id. at 940. And, Trooper Amick had also already searched Guerrero's car for weapons, further indicating that Guerrero was unlikely to be a threat.

In combination, (1) the length of the detention and (2) the use of handcuffs under the circumstances transformed Guerrero's detention into a de facto arrest. A reasonable person in Guerrero's situation would not have thought that they were free to leave. Instead, Guerrero was not free to leave, and a reasonable person would have realized that departure was not possible. This was more than a brief detention akin to a Terry stop, it was a de facto arrest.

II

Probable cause supported Guerrero's de facto arrest. Guerrero's car had heavily tinted windows. After Guerrero consented to a search of his car, Trooper Amick found 20,000 rounds of rifle and handgun ammunition in Guerrero's car, and the ammunition included rounds suitable for high-powered assault weapons. I give no weight to the fact Guerrero was driving southward towards the Mexican border on Highway 10. Highway 10 leads directly to Tucson, where Guerrero lived, and he was only stopped 23 miles north of Tucson. In these circumstances, if standing alone, a natural and reasonable inference would be that Guerrero was heading home, and no reasonable inference of criminal activity from this southward travel could be inferred. But the tinted windows and the massive amount of ammunition point in another direction: that Trooper Amick's stop had opened a window to a crime in process.

The central legal point that should govern our resolution of this case is that probable cause "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." D.C. v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 586, 199 L.Ed.2d 453 (2018) (quoting Illinois v. Gates , 462 U.S. 213, 243 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). Further, probable cause "is not a high bar: It requires only the ‘kind of fair probability on which reasonable and prudent [people,] not legal technicians, act.’ " Kaley v. United States , 571 U.S. 320, 338, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014) (quoting Florida v. Harris , 568 U.S. 237, 244, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) ). Here, there was probable cause that Guerrero was smuggling ammunition in violation of 18 U.S.C. § 554(a), which was sufficient to support Trooper Amick's detaining Guerrero until federal agents arrived.

The extremely high volume of ammunition in the car called for extra caution and for bringing in federal authorities. During this era in which the Department of Justice is actively investigating threats such as domestic terrorism, it was reasonable for Trooper Amick to want to defer a decision about Guerrero until after federal authorities arrived and could make their own assessment. 20,000 rounds of high-powered ammunition could fuel significant illicit activities of a militia hostile to democracy or other highly dangerous criminal behavior. Although the possession of ammunition was not illegal in Arizona, the extremely large volume of ammunition here raises risks to society that needed to be assessed more carefully and could not be done by a lone state trooper. The federal authorities, with their special expertise and databases, were properly invited to assess the situation before Guerrero was sent on his way with the ammunition. It was reasonable for Trooper Amick to believe this, and reasonableness is indeed the touchstone of the Fourth Amendment so far as searches and detentions are concerned. Kansas v. Glover , ––– U.S. ––––, 140 S. Ct. 1183, 1191, 206 L.Ed.2d 412 (2020) ("This Court's precedents have repeatedly affirmed that ‘the ultimate touchstone of the Fourth Amendment is reasonableness.’ ") (quoting Heien v. North Carolina , 574 U.S. 54, 60, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) ).

I concur.

BEA, Circuit Judge, concurring:

I concur in affirming denial of Guerrero's motion to suppress. First, Trooper Amick merely detained Guerrero; he did not effectuate a de facto arrest. Second, even if Trooper Amick had arrested Guerrero, there was probable cause to do so.

I

In determining when an investigatory stop becomes an arrest, courts must consider the "totality of the circumstances," United States v. Del Vizo , 918 F.2d 821, 824 (9th Cir. 1990), including "the severity of the intrusion, the aggressiveness of the officer's actions, and the reasonableness of the...