United States v. Ngumezi

• Decision Date: 20 November 2020
• Docket Number: No. 19-10243,19-10243
• Citation: 980 F.3d 1285
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Malik NGUMEZI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

980 F.3d 1285

UNITED STATES of America, Plaintiff-Appellee,

v.Malik NGUMEZI, Defendant-Appellant.

No. 19-10243

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2020 San Francisco, California

Filed November 20, 2020

Steven J. Koeninger (argued) and Jonathan Abel, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant-Appellant.

Briggs Matheson (argued), Assistant United States Attorney; Merry Jean Chan, Chief, Appellate Section, Criminal Division; David L. Anderson, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

Before: Eric D. Miller and Danielle J. Hunsaker, Circuit Judges, and Patrick J. Schiltz,^* District Judge.

MILLER, Circuit Judge:

Following a bench trial, Malik Ngumezi was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He appeals the denial of his motion to suppress the firearm, which was found in a search of his car. Because we conclude that the search violated the Fourth Amendment, we reverse the denial of the suppression motion, vacate the conviction, and remand for further proceedings.

The search at issue occurred in the early morning hours of May 6, 2018, after a San Francisco police officer, Kolby Willmes, saw Ngumezi's car parked at a gas station with Ngumezi in the driver's seat. The car had no license plates, in apparent violation of section 5200(a) of the California Vehicle Code. See People v. Dotson , 179 Cal.App.4th 1045, 101 Cal. Rptr. 3d 897, 901 (2009). Ngumezi had recently purchased the car, and a bill of sale was affixed to the lower passenger-side corner of the windshield.

Willmes approached the car to investigate; because a gas pump blocked access to the driver side, he went to the passenger side. According to Ngumezi, Willmes then opened the passenger door, leaned into the car, and asked Ngumezi for his driver's license and vehicle registration. For his part, Willmes agrees that he asked for Ngumezi's license and registration and does not deny that he first opened the door and leaned inside. Willmes says that he does not remember whether he opened the door, or whether he instead spoke to Ngumezi through an open window.

Ngumezi produced a California identification card but not a driver's license. Willmes asked Ngumezi if his license was suspended, and Ngumezi admitted that it was. Another officer then ran a license check and confirmed that Ngumezi's license was suspended and that Ngumezi had three prior citations for driving with a suspended license.

San Francisco Police Department policy requires officers to inventory and tow a vehicle when a driver lacks a valid license and has at least one prior citation for driving without a valid license. Consistent with that policy, the officers prepared to have Ngumezi's car towed. In conducting the inventory search, they found a loaded .45 caliber handgun under the driver's seat. The officers then ran a background check and learned that Ngumezi was prohibited from possessing firearms because of a previous felony conviction.

Ngumezi was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the firearm as fruit of an unlawful search. He conceded that "Officer Willmes ... had articulable facts and reasonable suspicion to approach the vehicle" when Willmes saw that it had no plates. But he argued that once Willmes approached, "he necessarily was in eyesight of the proof of sale affixed to the front right-side windshield," and the bill of sale "dissipated reasonable suspicion that the car was not registered." Because reasonable suspicion had dissipated, Ngumezi argued, "no Fourth Amendment exception permitted the officer's further interrogation, pulling the defendant out of the car, or searching the car."

The district court denied the motion to suppress. The court assumed the correctness of Ngumezi's version of the facts. It emphasized, however, that the "reasonable suspicion inquiry is based on what the officer is aware of , and therefore reasonable suspicion cannot be dispelled by facts unknown to the officer." The court noted that Ngumezi did "not allege that Willmes actually saw the proof of sale, only that it was in his line of sight." It concluded that "[w]ithout any evidence, or indeed even the assertion, that the officer in fact actually saw the proof of sale, its existence could not have factored into his analysis of the situation and thus could not have dispelled his reasonable suspicion."

After the district court denied the suppression motion, Ngumezi waived his right to a jury trial and requested a bench trial on stipulated facts. The court found Ngumezi guilty and sentenced him to 18 months of imprisonment, to be followed by two years of supervised release.

On appeal, Ngumezi challenges only the denial of the motion to suppress, which we review de novo. United States v. Ped , 943 F.3d 427, 430 (9th Cir. 2019). His principal argument is that whether or not Officer Willmes had reasonable suspicion at the time he opened the door, opening the door and leaning inside constituted a search that violated the Fourth Amendment because it was not authorized by any exception to the warrant requirement.

As we have explained, the district court focused on a different argument—that reasonable suspicion should have been dispelled because the bill of sale was visible in the windshield—and it did not address the argument that opening the door and leaning inside was an unlawful search. We can hardly fault the district court for ignoring that issue because Ngumezi raised it only in a footnote in his reply in support of his motion to suppress. We have held that "a perfunctory request, buried amongst the footnotes, does not preserve an argument on appeal." Coalition for a Healthy Cal. v. FCC , 87 F.3d 383, 384 n.2 (9th Cir. 1996). Thus, had the government argued that the issue was forfeited, we would have been compelled to agree. In that case, we could have considered Ngumezi's argument only if he could show good cause for not properly raising it in his motion to suppress.

United States v. Guerrero , 921 F.3d 895, 897–98 (9th Cir. 2019) (per curiam); see Fed. R. Crim. P. 12(c)(3). But the government has not made a forfeiture argument. Instead, it has addressed the issue on the merits and invited us to do so as well. We conclude that the government has forfeited any claim of forfeiture, so we proceed to consider the merits. United States v. Doe , 53 F.3d 1081, 1083 (9th Cir. 1995).

In doing so, we assume, as the district court did, that Ngumezi's version of the facts is correct. The key facts are not disputed: Ngumezi says that Willmes opened the car door and leaned into the car, and Willmes does not specifically deny that that is what he did. We therefore must consider whether police officers who have reasonable suspicion sufficient to justify a traffic stop—but who lack probable cause or any other particularized justification, such as a reasonable belief that the driver poses a danger—may open the door to a vehicle and lean inside. We conclude they may not.

We begin by examining the Supreme Court's decision in New York v. Class , 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), which sets out the principles that control this case. In Class , police officers stopped a car for speeding. Id. at 107–08, 106 S.Ct. 960. During the stop, an officer opened the door to read the vehicle identification number printed on the doorjamb. Id. at 108, 106 S.Ct. 960. When he did not find the VIN there, he decided to search the dashboard, where the VIN for newer cars is located. Id. Because the VIN on the dashboard was covered by papers, the officer opened the door and reached inside to move them out of the way; while doing so, he saw a gun hidden under the seat. Id.

The Supreme Court held that the officer's conduct did not violate the Fourth Amendment. The Court explained that "a car's interior as a whole is ... subject to Fourth Amendment protection from unreasonable intrusions by the police." Class , 475 U.S. at 114–15, 106 S.Ct. 960. And it had no difficulty in concluding that "the intrusion into that space" by the officer "constituted a ‘search.’ " Id. at 115, 106 S.Ct. 960. Nevertheless, it held that the search was valid because "the governmental interest in highway safety served by obtaining the VIN is of the first order," and the VIN's location on the dashboard is "ordinarily in plain view of someone outside the automobile," so the intrusion involved in searching it is "minimal." Id. at 117–18, 106 S.Ct. 960. The Court made clear that the result would have been different had the VIN not been covered by papers: "If the VIN is in the plain view of someone outside the vehicle, there is no justification for governmental intrusion into the passenger compartment to see it." Id. at 119, 106 S.Ct. 960.

Class establishes that a physical intrusion into the interior of a car constitutes a search. Although the search in Class was justified because of the specific need—finding the VIN—and its minimal intrusiveness, neither of those considerations is present here. The government has pointed to no justification for a search. It has not argued that Willmes had probable cause, nor has it suggested that Willmes had any reason to fear that Ngumezi might be dangerous. See Michigan v. Long , 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (authorizing a protective search of a vehicle's passenger compartment "when police have a reasonable belief that the suspect poses a danger"). Instead, it relies on the general principle that a driver has a "diminished" expectation of privacy in a vehicle. Class , 475 U.S. at 113, 106 S.Ct. 960. That is true, but as the Court made clear in Class , a driver retains important privacy interests, id. at 112–14, 106 S.Ct. 960, which is why, in...