United States v. Willy

• Citation: 40 F.4th 1074
• Decision Date: 26 July 2022
• Docket Number: 21-30006
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Marc Anthony WILLY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

40 F.4th 1074

UNITED STATES of America, Plaintiff-Appellant,

v.Marc Anthony WILLY, Defendant-Appellee.

No. 21-30006

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2022 Seattle, Washington

Filed July 26, 2022

Richard C. Burson (argued), Assistant United States Attorney; Joseph H. Harrington, Acting United States Attorney; United States Attorney's Office, Yakima, Washington; for Plaintiff-Appellant.

Jeremy B. Sporn (argued), Federal Defenders of Eastern Washington and Idaho, Yakima, Washington, for Defendant-Appellee.

Before: Jay S. Bybee and Morgan Christen, Circuit Judges, and James V. Selna,^* District Judge.

Dissent by Judge Christen

BYBEE, Circuit Judge:

This case requires us to determine whether there was probable cause to arrest Marc Anthony Willy for displaying a weapon in a manner that "warrant[ed] alarm for the safety of other persons." Wash. Rev. Code § 9.41.270(1). Willy was arrested after two people separately reported that a man in a truck had displayed a firearm while asking them questions about an alleged kidnapping in the area. After his arrest, a search of Willy's vehicle and person recovered illegal firearms and a modified CO2 cartridge. Willy was charged with making and possessing a destructive device in violation of the National Firearms Act, 26 U.S.C. § 5861. The district court granted Willy's motion to suppress all evidence and statements obtained after his arrest because his arrest was not supported by probable cause. We affirm.

I. BACKGROUND

On May 12, 2019, the Yakima County's Sheriff's Office received a call from a witness ("Reporting Party 1") stating that a man had pulled up outside of his home in a vehicle and displayed a firearm. Dispatch relayed this information to Deputy Curtis Thaxton, who interviewed Reporting Party 1 at his residence. Reporting Party 1 told Deputy Thaxton that a white male in a green truck pulled up on the street in front of his house and began talking about being abducted and kept somewhere in the area. The man said he was trying to find the place where he was kept. During the conversation, the man pulled out a semiautomatic pistol, racked the slide, and then put it down. Reporting Party 1 expressed concern about the man's mental state. He provided Deputy Thaxton with the truck's license plate number, and the vehicle came back as registered to Marc Willy. Thaxton showed Reporting Party 1 Willy's Department of Licensing photo, and he identified Willy as the man with whom he had spoken. Reporting Party 1 said that Willy made no threats to him, nor had Willy pointed the pistol at him at any time.

About ten minutes after leaving Reporting Party 1's residence, Deputy Thaxton responded to another report from dispatch. The second call had come from Reporting Party 2, who lived about three miles from the previous caller. Deputy Thaxton spoke to the second witness over the phone because Reporting Party 2 had already left her residence. Reporting Party 2 stated that a man with a name like "Willis" pulled up to her gate in a green truck when she was leaving her house and told her that he had been kidnapped and held in a camouflaged trailer or van in the area and that he was trying to find it. While they were talking, the man told her he was armed and then displayed a pistol and put it away. Reporting Party 2 told the man she did not know the place he was looking for, and he drove away. Reporting Party 2 said that she was not was not directly threatened, nor was Willy argumentative or hostile.

Deputy Thaxton resumed patrol and testified that at this point he was concerned that Willy was "a danger to himself or others in the area," because

the way he was rambling on, that things weren't completely coherent what was going on; that he would possibly use it if confronted with somebody else, that he had made contact with somebody else; that once the gun's out—normal people just don't walk around displaying firearms out to people when they pull up.

Thaxton believed Willy "had already committed the violation of carry, exhibit, draw a dangerous weapon or firearm with an intent to create an affront or alarm to another." See Wash. Rev. Code § 9.41.270.¹ Deputy Thaxton located the green truck pulling into a gas station. Once he confirmed the license plate matched the one given to him by Reporting Party 1, Deputy Thaxton turned on his emergency lights and conducted a "high-risk stop." With his firearm drawn, Deputy Thaxton ordered Willy out of the vehicle. Willy complied with all of Deputy Thaxton's orders. While making Willy turn around, Deputy Thaxton saw a pistol holstered on his hip. Deputy Thaxton removed the gun, put Willy in handcuffs, and escorted him to the back seat of the police vehicle.

After securing Willy's pistol in the patrol car, Deputy Thaxton noticed that the gun had the serial number scratched off. Deputy Thaxton read Willy his Miranda rights, and Willy indicated that he was willing to talk to Deputy Thaxton. Willy told Deputy Thaxton that he had been abducted and kept at a location for several days and that he had escaped but police had not done anything to help him. When asked about the scratched off serial number, Willy stated that he bought the gun already in that condition three or four years previously at a gun show in Spokane.

Willy consented to a search of his truck and stood by the patrol car while Deputy Thaxton started the search. As Deputy Thaxton moved to the passenger-side door, Willy told him that there was a sawed-off shotgun on the rear floorboard of the truck. Deputy Thaxton recovered a non-functional short-barrel shotgun from the vehicle. After the vehicle search, Deputy Thaxton took Willy to Yakima County Jail for booking. When Thaxton searched Willy, he recovered a CO2 cartridge that had crimp marks around the neck and two pieces of fuse coming out of the neck. ATF agents later determined that the device qualified as a "destructive device" under 26 U.S.C. § 5845(f).

Deputy Thaxton conferred with the prosecutor's office and told them his reasons for arresting Willy. The prosecutor recommended charging Willy with possessing an altered-number pistol and a short-barrel shotgun. In his "Declaration of Probable Cause," in support of those two charges, Deputy Thaxton wrote that "[Willy] displayed a black semi auto pistol [to Reporting Witness 1] and loaded it (racked the slide). [Willy] never threatened anyone with it and didn't point it towards him." He also wrote that Reporting Witness 2 said "[Willy] told her he was armed and displayed a black pistol" and that "[Willy] never threatened her with it or pointed it at her." Willy was ultimately charged with violating § 9.41.270 and altering the serial number on the pistol. The record does not disclose any resolution of the state charges.

A federal grand jury in the Eastern District of Washington returned a three-count indictment charging Willy with receiving and possessing an improvised explosive device—the altered CO2 cartridge—in violation of 26 U.S.C. § 5861(c), receiving and possessing an improvised explosive device which was not registered to him in violation of 26 U.S.C. § 5861(d), and making an improvised explosive device in violation of 26 U.S.C. § 5861(f). Willy filed a motion to suppress the evidence. A hearing on the motion was held, during which Deputy Thaxton testified. The district court granted the motion to suppress, finding that although Deputy Thaxton had reasonable suspicion to conduct an investigatory stop, Thaxton lacked probable cause to make the arrest. The evidence was "tainted by the illegality of the arrest." The government filed a timely notice of appeal.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291. We review de novo the district court's ruling on a motion to suppress and for clear error any underlying findings of historical fact. United States v. Torres , 828 F.3d 1113, 1118 (9th Cir. 2016). We must "give due weight to inferences drawn from th[e] facts by resident judges and local law enforcement officers." Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The district court's interpretation of state law, including state statutes, is reviewed de novo. Brunozzi v. Cable Commc'ns, Inc. , 851 F.3d 990, 995 (9th Cir. 2017).

III. DISCUSSION

The Fourth Amendment, applicable to the United States and made applicable to the states by the Fourteenth Amendment, protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. U.S. Const. amend. IV ; see Terry v. Ohio , 392 U.S. 1, 8, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Fourth Amendment provides that a warrant for arrest "shall [not] issue, but upon probable cause." In this case, Willy was arrested for violating § 9.41.270—only later was he charged with altering the serial number on the pistol (the basis for a second state charge actually filed against him) or possessing the crimped CO2 cartridge (the basis for the federal charges). The evidence supporting the federal charges was seized after Willy's arrest during a search at the jail. Thus, the "constitutional validity of the search ... depend[s] upon the constitutional validity of [Willy's] arrest." Beck v. Ohio , 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Accordingly,

[w]hether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, [Deputy Thaxton] had probable cause to make it—whether at that moment the facts and circumstances within [his] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.

Id. ; see also United States v. Lopez , 482 F.3d 1067, 1072 (9th Cir. 2007).

Deputy Thaxton testified that, even before he found Willy at a service...