United States v. Guerrero ( 2021 )

United States Court of Appeals
For the First Circuit
No. 21-1244
UNITED STATES OF AMERICA,
Appellant,
v.
JUAN GUERRERO, a/k/a Pawtucket,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Thompson, Lipez, and Kayatta,
Circuit Judges.
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.
December 6, 2021
THOMPSON, Circuit Judge.
Overview
"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 (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 (1985).
Take, for example, "investigative detentions involving
suspects in vehicles," see Michigan v. Long, 463 U.S. 1032, 1047
(1983) — the context of today's case. Because of the perils
associated with such situations, concerns about officer safety
1 The Fourth Amendment guards against "unreasonable searches
and seizures" and requires that warrants be based on "probable
cause." See U.S. Const. amend. IV.
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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.
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.
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United States, for instance. See 517 U.S. 806, 812-14 (1996).
United States v. McGregor signaled that Whren's "reasoning" might
put Lott's actual-fear test in serious jeopardy. See 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
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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,
2 We recap the record evidence in the light most generous to
the judge's ruling, noting only those details necessary to
understand the government's appeal. See McGregor, 650 F.3d at
816.
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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
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
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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
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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. 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 (1990) — regardless
of their subjective fears, see id. at 337 & n.1 (Stevens, J.,
concurring). Whren and Buie, the government continued, strongly
imply that an officer's subjective belief is not constitutionally
relevant when it comes to protective sweeps. But the judge did
not change his mind on the actual-fear issue, pertinently ruling
that "the First Circuit has repeatedly declined to reach the
question of whether Lott survived Whren's broadside against
inquiries into subjective intent" and that cases like Buie
"involving protective sweeps of houses" (as opposed to vehicles)
do not make Lott a legal "dead letter" either.
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This is where we come in, with the government telling us
that we should end Lott's "condition that a lawful protective
sweep" under Long "requires police to demonstrate a subjective
fear for their safety," and Guerrero telling us that we should
find the judge's analysis to be error-free.
Our Take
Standard of Review
The government asks us to critique the judge's legal
conclusion about Lott de novo (i.e., without giving the judge's
analysis any special weight). Convinced that the government did
not develop its argument about Lott's viability in a timely manner,
Guerrero asks us to either consider the government's Lott arguments
waived or limit our review to a search for plain error. We side
with the government, however.
It is true that the government did not raise concerns
about Lott before the judge filed his decision. But Guerrero's
pre-hearing memo did not make Lott-based suppression arguments.
His two-page submission stated in conclusory terms that "[c]ourts
have fashioned a few established and well delineated exceptions to
the warrant requirement, in the case of an automobile search," but
"none . . . apply to this case" — he did not spell out what those
exceptions are. Citing Long, the government briefed the case under
an objective standard. And neither the defense's nor the judge's
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suppression-hearing comments clearly put the government on notice
that the judge had concerns about Lott's actual-fear test — a point
the judge made in his reconsideration ruling. While the government
has the burden of justifying the warrantless search, "it need not
. . . anticipate[] every possible suppression theory, or . . .
adduce[] evidence to rebut legal arguments never articulated in
defendant's suppression motion." See United States v. Vanvliet,
542 F.3d 259, 265 (1st Cir. 2008). Anyhow, Guerrero had a full
opportunity to respond to the government's post-hearing arguments
in his post-hearing memo.
Given all this, we believe de novo review is the way to
go. See, e.g., United States v. Paradis, 351 F.3d 21, 28-29 (1st
Cir. 2003) (applying de novo review to a legal issue after
rejecting a waiver argument).
Cheat Sheet
On the Law-of-the-Circuit Rule
A key part of circuit judging is following the "law of
the circuit" rule, which (as already noted) says that once a panel
decides a legal issue (as the Lott panel did), that ruling usually
binds later panels too — even where the succeeding panel disagrees
with the prior one. See, e.g., San Juan Cable LLC v. P.R. Tel.
Co. ("San Juan Cable"), 612 F.3d 25, 33 (1st Cir. 2010). The
public has a right to expect a reasonable degree of predictability
and certainty. See, e.g., United States v. Barbosa, 896 F.3d 60,
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74 (1st Cir. 2018). And "[w]ithout the law of the circuit
doctrine, the finality of appellate decisions would be threatened
and every decision, no matter how thoroughly researched or how
well-reasoned, would be open to continuing intramural attacks."
Id.; see also Kisor v. Wilkie, 139 S. Ct. 2400, 2422 (2019)
(commenting that "[a]dherence to precedent is 'a foundation stone
of the rule of law'" (quoting Michigan v. Bay Mills Indian Cmty.,
572 U.S. 782, 798 (2014))).
Our saying "usually binds" in the preceding paragraph is
a tip-off that there are exceptions to when prior panel precedent
controls. One applies when an intervening higher authority — a
directly-on-point Supreme Court opinion, an en banc opinion of
this court, or a statutory enactment — overrules the earlier panel
decision. United States v. Rodríguez, 527 F.3d 221, 225 (1st Cir.
2008). Another applies when Supreme Court precedent "that
postdates the original decision, although not directly
controlling," provides a clear and convincing basis to believe
that the earlier panel would have decided the issue differently.
San Juan Cable, 612 F.3d at 33 (quoting Williams v. Ashland Eng'g
Co., 45 F.3d 588, 592 (1st Cir. 1995)); see also United States v.
Lewis, 963 F.3d 16, 25 (1st Cir. 2020), cert. denied, 141 S. Ct.
2826 (2021). These exceptions are "narrowly circumscribed,"
however. Arevalo v. Barr, 950 F.3d 15, 21 (1st Cir. 2020) (quoting
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Barbosa, 896 F.3d at 74). And the situations in which they operate
are "hen's-teeth-rare." Id. (quoting Barbosa, 896 F.3d at 74).3
This is exactly as it should be, because we here at the First
Circuit
are a court of six [active-status] members, on which it
customarily takes four votes to sit en banc. Were panels
of three too prone to reverse prior precedent, we would
lose the benefits of stability and invite [lawyers and]
litigants to regard our law as more unsettled than it
should be.
Lewis, 963 F.3d at 25.
With these preliminary principles in mind, we take on
the government's bid to get around the law-of-the-circuit rule.
Arguments and Analysis
A heads-up first. Our opinion is somewhat longish. But
length should not be confused for complexity. See Mass. Sch. of
L. at Andover v. Am. Bar Ass'n, 142 F.3d 26, 29, (1st Cir. 1998).
Lott's days were numbered after Buie. Yes, Buie is
3 Not to sound pedantic about this, but because "hens do not
possess teeth," the hen's-teeth-rare expression "impli[es] . . .
that something is rare to the point of non-existence." See Rare
As Hen's Teeth, Idioms by The Free Dictionary,
https://idioms.thefreedictionary.com/as+rare+as+hen%27s+teeth
(last accessed Dec. 3, 2021). But see generally Hens' Teeth Not
So Rare After All, Sci. Daily (Feb. 23, 2006),
https://www.sciencedaily.com/releases/2006/02/060223083601.htm
(noting that "researchers say they have found a naturally occurring
mutant chicken . . . that has a complete set of ivories" and "have
also managed to induce teeth growth in normal chickens — activating
genes that have lain dormant for 80 million years").
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"distinguishable" because it involved a protective sweep of a home
rather than a car. But that distinction actually cuts against
Lott because privacy interests implicated by a home sweep
significantly outweigh those implicated by a car sweep. See
generally California v. Carney, 471 U.S. 386, 392 (1985) (holding
that the Fourth Amendment allows warrantless car searches because
"[a]utomobiles, unlike homes, are subjected to pervasive and
continuing governmental regulation and controls"). Perhaps a
baseball analogy will help (at least for devotees of our national
pastime). Imagine Supreme Court caselaw holds that a single is a
good hit. Now imagine a litigant asks us to consider the status
of a prior circuit opinion holding that a double is not a good
hit. The cases would be "distinguishable," but hardly in a way
that would raise any questions about the correct result. So too
here. But because we take our duty to follow circuit precedent
very seriously — making sure to weigh heavily the strong
presumption against invoking an exception to the law-of-the-
circuit rule — we explore in greater depth below the many
developments that would have influenced the Lott panel to adopt a
different ruling and the specific arguments to the contrary
Guerrero raises.
The government invokes the second law-of-the-circuit
exception, which (to put it in slightly different terms) comes to
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the fore when "recent Supreme Court precedent calls into legitimate
question a prior opinion" by this court. See United States v.
Rodriguez-Pacheco, 475 F.3d 434, 442 (1st Cir. 2007) (emphasis and
quotation marks omitted). Success under this exception is even
rarer than under the first (i.e., the directly-overrules
exception). See United States v. Wurie, 867 F.3d 28, 34 (1st Cir.
2017) (calling the second exception the "less common" of the two).
Anyway, to hear the government tell it, Whren and Buie, "both of
which postdate Lott," while not controlling, "'call[] into
legitimate question' Lott's viability" when "taken together."
Guerrero does not agree that this exception applies. But we do.
To trace our path to this conclusion, we begin at the
beginning (so to speak) — repeating some of what we said in our
"Overview" section above.
Way back in 1968, the Supreme Court held in Terry v.
Ohio that officers may briefly detain a person based on reasonable
suspicion that he committed, is committing, or will soon commit a
crime — "even though there is no probable cause to make an arrest."
See 392 U.S. 1, 22, 30 (1968). Not only may they take reasonable
investigative measures, but they may also frisk the person for
weapons if they have reasonable suspicion that he is "armed and
presently dangerous." Id. at 30. And courts "judge[]" their
decisions "against an objective standard: would the facts
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available to" them "'warrant [persons] of reasonable caution in
the belief' that the action[s] taken w[ere] appropriate?" Id. at
21-22 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).
More specifically, Terry explained, when it comes to a weapons
frisk "the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
that of others was in danger." Id. at 27. And lest there be any
doubt, the Court later explained that
[n]othing in Terry can be understood to allow a
generalized "cursory search for weapons" or, indeed, any
search whatever for anything but weapons. The "narrow
scope" of the Terry exception does not permit a frisk
for weapons on less than reasonable belief or suspicion
directed at the person to be frisked.
Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). The sole "purpose
of this limited search is not to discover evidence of crime, but
to allow the officer to pursue his investigation without fear of
violence." Adams v. Williams, 407 U.S. 143, 146 (1972).
So too, because of the increased dangers in Terry stops
of cars, Long held in 1983 that officers can do a protective car
frisk (as it is sometimes called) if they develop some reasonable
suspicion that a suspect could immediately access weapons. See
463 U.S. at 1049, 1051. Among other things, Long voiced concern
that absent a protective search, "if the suspect is not placed
under arrest, he will be permitted to reenter his automobile, and
he will then have access to any weapons inside." Id. at 1052.
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But echoing Terry, Long said that courts assess the officers'
actions based on what is "objectively reasonable" — i.e., whether
"'a reasonably prudent man in the circumstances'" would believe
that the "suspect is 'dangerous.'" See id. at 1050 (quoting Terry,
392 U.S. at 27).
Fast-forward to our 1989 Lott decision, which is also a
car-frisk case. Lott acknowledged that "Terry and Long speak in
terms of an objective test ('reasonableness') for determining the
validity of an officer's frisk for weapons." See 870 F.2d at 783(emphasis added). But (a very big "but," actually) Lott did not
view either decision as okaying a car frisk where — even though
the situation "might pass an objective test" — the officers at the
scene had no "actual[]" safety concerns. Id. at 783-84 (first two
emphases added). Officers "cannot have a reasonable suspicion
that a person is armed and dangerous," Lott declared, "when [they]
in fact ha[ve] no such suspicion." Id. at 784 (bold emphasis and
bracketed material added). And if they do not "have an actual
suspicion that weapons are present" — if they were driven, say, by
an unconstitutional desire to find contraband — no "ex post facto
reconstruction based upon an argument of objective reasonableness
can validate the search." See id. (emphasis added).
Turning to the case's facts, Lott said that the
circumstances known to the officers before the search — e.g., the
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driver's running stop signs, driving away from an attempt to stop
him, having bloody wrists, and making statements about the wounds
that clashed with his passenger's story — "might be sufficient to
justify" a "search of the car under Long." Id. at 784-85. But in
the next breath Lott stated that other "reasons fatally undercut"
the search's "validity." Id. at 785. For one, the officers did
not frisk either defendant "upon exiting the car (or at any
subsequent time) until the[] arrest[s]" — if they "truly feared
that the two were armed and dangerous . . . they would have made
sure, by a Terry frisk, that the defendants were not armed and
then have proceeded to search the car." Id. (first emphasis
added). Furthermore, the officers "directed" the search "towards
finding contraband" — the police conceded that the search "was not
. . . for weapons only," making it "improper under Terry and Long."
See id.; see also id. at 782-83.
Successor First Circuit panels have read Lott as holding
that officer-safety concerns in a car-frisk scenario must be
subjectively felt and objectively reasonable. See (in
chronological order) Nee, 261 F.3d at 85 (citing Lott, 870 F.2d at
783, 785); Ivery, 427 F.3d at 72 (citing Lott, 870 F.2d at 783-
84); United States v. Diaz, 519 F.3d 56, 62 (1st Cir. 2008) (citing
Ivery, 427 F.3d at 72, and noting that Ivery discusses Lott, 870
F.2d at 783-84); McGregor, 650 F.3d at 820 (citing Ivery, 427 F.3d
- 17 -
at 72, and noting that Ivery discusses Lott, 870 F.2d at 783-84).
Ivery is worth reviewing for a moment.
The Ivery defendant challenged the district judge's
ruling that "the officers actually feared for their safety" and
that their "suspicions were reasonable under the circumstances."
See 427 F.3d at 72-73 (emphases added). Starting with the basics,
Ivery held that Lott "impose[d]" the following "requirement[s] for
a permissible warrantless search for weapons" in a car-frisk
context: "(1) the officers must have actually harbored a suspicion
that the suspect was armed; and (2) that suspicion must have been
reasonable under the circumstances." See id. at 72 (emphases added
and citing Lott, 870 F.2d at 873-74). From there, Ivery saw no
error with the judge's finding "that the officers testified
credibly" about their "actual[]" safety concerns. Id. (emphasis
added). And after adopting the perspective of a "reasonable"
officer at the site, Ivery also ruled that the accumulated facts
— e.g., the defendant's "presence in a high-crime neighborhood,"
his "nervousness," his "concealment of the car's rear floorboard,"
and his "possession of objects suggesting illegal conduct" — made
the officers' concerns objectively "reasonable" too, just as the
judge had ruled. See id. at 73 (emphasis added).
With the actual-fears issue percolating through our
Circuit, the Supreme Court decided Buie and Whren — the two post-
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Lott Supreme Court decisions the government says require us to
"overrul[e]" Lott's actual-fear requirement. On to them then.
Buie held that officers making an in-home arrest under
a warrant could perform a warrantless "protective sweep" — defined
as a "quick" and "cursory visual inspection of those places in
which a person might be hiding" — to make sure no threat lurks
within. See 494 U.S. at 327. They may do so when there are
"articulable facts" that would justify "a reasonably prudent
officer in believing" that a dangerous third party might be in
"the area to be swept." See id. at 334. And they may do so
despite the special privacy involved with a house, see id. at 333,
and despite their having no safety "worrie[s]" — they could look
just as a precaution, see id. at 337 & n.1 (Stevens, J.,
concurring). "This," Buie asserted, "is no more and no less than
was required in Terry and Long." See id. at 334.
Whren held that courts may not discredit a traffic stop
backed by probable cause simply because the officers acted
pretextually — i.e., using a traffic infraction as cover to
subjectively investigate some other crime. See 517 U.S. at 810,
813. Beyond a few exceptions not relevant here (administrative
inspections and inventory searches, for instance), "[n]ot only"
has the Supreme Court "never held . . . that an officer's motive
invalidates objectively justifiable behavior under the Fourth
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Amendment," Whren proclaimed — but the Court has "repeatedly held
and asserted the contrary." Id. at 812 (emphases added). In other
words, according to Whren, the legality of their actions in that
situation turns on objective justifications, not on subjective
motivations. See id. at 813.
And Buie and Whren are hardly aberrations. In more
recent decisions, the Supreme Court has repeatedly (and
forcefully) played up how the Fourth Amendment's basic test is
objective. A case in point is Nieves v. Bartlett, which said that
"[i]n the Fourth Amendment context, . . . we have almost uniformly
rejected invitations to probe subjective intent." See 139 S. Ct.
1715, 1724 (2019) (emphases added and quotation marks omitted).
Another is Kentucky v. King, which said that the Court has "never
held, outside limited contexts such as an 'inventory search or
administrative inspection . . ., that an officer's motive
invalidates objectively justifiable behavior under the Fourth
Amendment.'" See 563 U.S. 452, 464 (2011) (emphases added and
quoting Whren, 517 U.S. at 812). Still another is Ashcroft v. al-
Kidd, which stated that because "Fourth Amendment reasonableness
'is predominately an objective inquiry,'" the Court "ask[s]
whether 'the circumstances, viewed objectively, justify [the
challenged] action'" — and if yes, "that action was reasonable
'whatever the subjective intent' motivating the relevant
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officials." See 563 U.S. 731, 736 (2011) (emphases added except
for "whatever," and first quoting Indianapolis v. Edmond, 532 U.S.
32, 47 (2000), then quoting Scott v. United States, 436 U.S. 128,
138 (1978), and then quoting Whren, 517 U.S. at 814). And showing
that the Court has said what it meant and meant what it has said,
there is this passage in Florida v. Jardines: "[al-Kidd and Whren]
merely hold that a stop or search that is objectively reasonable
is not vitiated by the fact that the officer's real reason for
making the stop or search has nothing to do with the validating
reason." See 569 U.S. 1, 10 (2013) (second emphasis added).
According to our judicial superiors, the advantages of
an objective inquiry are many — including: "recogniz[ing] that
the Fourth Amendment regulates conduct rather than thoughts," see
al-Kidd, 563 U.S. at 736; "promot[ing] evenhanded, uniform
enforcement of the law," see id., by avoiding "arbitrarily variable
protection" of constitutional rights, see Devenpeck v. Alford, 543
U.S. 146, 154 (2004); and "allow[ing] the police to determine in
advance whether the conduct contemplated will implicate the Fourth
Amendment," see Torres v. Madrid, 141 S. Ct. 989, 998 (2021)
(quotation marks omitted).
With Whren on the books, we have said that "[w]hether a
reasonable suspicion exists" to justify a Terry frisk "is treated
as an objective inquiry: the actual motive or thought process of
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the officer is not plumbed." Bolton v. Taylor, 367 F.3d 5, 7 (1st
Cir. 2004) (citing Whren, 517 U.S. at 813) (emphasis added). And
with Buie and Whren in mind, we have held that judges should test
the lawfulness of a protective sweep of a home on an objective
standard only. United States v. Lawlor, 406 F.3d 37 (1st Cir.
2005), and United States v. Winston, 444 F.3d 115 (1st Cir. 2006),
jump out as obvious examples.
Lawlor rejected an argument that because the officers
did not act like "they feared an attack from within the house,"
the protective sweep crossed a constitutional line. See 406 F.3d
at 43 n.8. This claim, Lawlor wrote, "miss[ed] the mark." Id.What matters is that the police were "justified in entering the
house to conduct a protective sweep and that the sweep itself was
appropriate in scope," Lawlor added. Id. And bowing to Whren,
Lawlor held that "an officer's subjective belief or intention is
irrelevant to Fourth Amendment analysis." Id. (emphasis added and
parenthetically discussing Whren, 517 U.S. at 813).
Winston held much the same. Faced with an argument that
the officers "did not actually fear for their safety" but rather
used the protective sweep simply as "a pretext to search [the
defendant's] house," Winston repeated that "subjective intentions
are not relevant as long as the protective sweep was objectively
reasonable." See 444 F.3d at 120 (emphases added and citing
- 22 -
Lawlor, 406 F.3d at 43 n.8, which in turn cited Whren, 517 U.S. at
813). We federal judges are poorly equipped by training and
experience "to second guess the agents as to how to conduct a
protective sweep," Winston remarked — though "w[e] are able" to
assess "whether their actions were objectively reasonable given
the circumstances and constraints within which they operated."
Id. (emphasis added).
Where this leaves us is clear. We as a panel can and
must give up Lott's actual-fear requirement.
Lott's actual-fear test runs counter to the strong
modern trend in the caselaw — started by the Supreme Court and
faithfully applied by us in other contexts — "'repeatedly
reject[ing]' a subjective approach" because "[l]egal tests based
on reasonableness are generally objective." See King, 563 U.S. at
464 (emphases added and quoting Brigham City v. Stuart, 547 U.S.
398, 404 (2006)). And with post-Lott decisions holding officers'
subjective fears irrelevant in protective sweeps of homes — where
privacy expectations are at their apex, see Collins v. Virginia,
138 S. Ct. 1663, 1670 (2018) — we cannot see a good reason why
subjective fears should be relevant in protective searches of
autos. See generally Buie, 494 U.S. at 334, 337 (extending Terry
and Long by letting officers with an objectively credible fear of
danger do a visual protective home sweep to minimize that danger).
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Critically too, while scrapping Lott's actual-fear
analysis will align our precedent with post-Lott Supreme Court
precedent, not doing so could frustrate the goal of "evenhanded
law enforcement" — which, the Court tells us, "is best achieved by
the application of objective standards of conduct, rather than
standards that depend upon the subjective state of mind of the
officer." See Horton v. California, 496 U.S. 128, 138 (1990)
(emphases added). If we let Lott's actual-fear inquiry stay, this
court (as best we can tell) will stand alone among the Circuits.
Opinions from the Fifth, Eighth, and D.C. Circuits reject the
importance of an officer's subjective fear in reviewing the
constitutionality of a Long-based search (a few choice quotes):
• "This Court . . . has never held that an officer's objectively
reasonable concern for safety does not justify a protective
[search] for weapons where the officer has no actual fear for
his safety." United States v. Baker, 47 F.3d 691, 694 (5th
Cir. 1995) (refusing to follow Lott).
• Long's reasonableness test "is an objective one" — which "does
not depend upon the searching officer actually fearing the
suspect is dangerous" — and so makes "such a search . . .
valid if a hypothetical officer in the same circumstances
could reasonably believe the suspect is dangerous." United
- 24 -
States v. Plummer, 409 F.3d 906, 909 (8th Cir. 2005)
(quotation marks omitted).
• "Because the [pertinent] test is objective, an officer's
actual subjective motives . . . are irrelevant to the Fourth
Amendment analysis of [a] traffic stop and protective search
of the car." United States v. Vinton, 594 F.3d 14, 21 (D.C.
Cir. 2010) (citation and quotation marks omitted).
And decisions from many other Circuits also apply an objective
test to Fourth Amendment issues (again, just a sampling):
• "The Supreme Court has long rejected any attempt to inject
subjectivity into the Fourth Amendment context." United
States v. Weaver, 9 F.4th 129, 145 (2d Cir. 2021) (en banc)
(Terry situation).
• "[T]he 'reasonable suspicion' analysis is objective;
subjective motive or intent is not relevant." United States
v. Goodrich, 450 F.3d 552, 559 (3d Cir. 2006) (Terry
situation).
• "The reasonable suspicion standard is an objective one, and
the officer's subjective state of mind is not considered."
United States v. George, 732 F.3d 296, 299 (4th Cir. 2013)
(Terry situation).
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• The reasonable-suspicion analysis "is an objective inquiry."
United States v. McCraney, 674 F.3d 614, 620 (6th Cir. 2012)
(Long situation).
• "[A]s is typically the case in the Fourth Amendment context,
the subjective beliefs and knowledge of the officer are
legally irrelevant" — since "reasonableness remains the
Amendment's touchstone, the constitutional inquiry turns on"
the "objective[] reasonable[ness]" of the officer's actions.
United States v. Rochin, 662 F.3d 1272, 1274 (10th Cir. 2011)
(Terry situation).4
All of this raises the unacceptable specter of Fourth Amendment
protections varying among jurisdictions, see al-Kidd, 563 U.S. at
746 (Kennedy, J., concurring) (cautioning against such a scenario)
— and between similarly dangerous sets of circumstances
(protective sweeps of homes and autos) as well, see Devenpeck, 543
U.S. at 154 (ditto).5
Guerrero tries to distinguish both sets of cases, insisting
4
that because the courts there considered the "totality of the
circumstances," these decisions in no way undermine Lott's
reliance on the officers' subjective beliefs. But cutting against
his theory is that each opinion used an objective test, as the
above snippets show.
We know that "[t]he law of the circuit rule does not depend
5
on whether courts outside the circuit march in absolute lockstep
with in-circuit precedent." See United States v. Lewis, 517 F.3d
20, 24 (1st Cir. 2008). We simply mention the out-of-circuit
opinions to explain our evenhanded-law-enforcement and
arbitrarily-variable-protection concerns.
- 26 -
The bottom line then is that given the Supreme Court
cases in vogue after Lott, we believe the Lott panel would (if it
had the chance) reverse its view of the actual-fear issue 180
degrees.
And nothing Guerrero argues persuades us differently.
Guerrero suggests that neither Buie nor Whren count when
discussing the law-of-the-circuit rule because they predate McGregor
(applying Lott) and United States v. Orth, 873 F.3d 349 (1st Cir.
2017) (also applying Lott). Lott's continued viability was not at
issue in either case, however. So Lott remains the key panel
precedent. And (to state the obvious) Buie and Whren postdate Lott.
Also going nowhere is Guerrero's claim that Lawlor and
Winston contribute nothing to the analysis. Specifically, he says
that while Lawlor held that the police can protectively sweep a
residence if adequate facts would lead a reasonably prudent officer
to have safety concerns, the judge here found the officers actually
And staying with these concerns for a second, Guerrero (as
the government notes) could have faced state rather than federal
weapons charges. See R.I. Gen Laws §§ 11-47-5(a)(1), 11-47-2(5).
And if he had and then asked a Rhode Island judge to suppress the
ammo, that judge would have viewed matters through an objective
standard only. See State v. Santos, 64 A.3d 314, 320-21 (R.I.
2013) (discussing Long and affirming the lawfulness of the
"protective" vehicle "search" because the officer "was reasonable
in her belief that [the defendant] might be armed and dangerous");
see also id. at 323 (repeating that the officer's "objectively
reasonable safety concerns justified her protective search of the
area near the passenger seat" (emphasis added)).
- 27 -
had no such concerns. But what matters is whether their subjective
fears should have made a difference. And on that point Lawlor
said with conspicuous clarity "that an officer's subjective belief
or intention is irrelevant to Fourth Amendment analysis." See 406
F.3d at 43 n.8 (emphases added and parenthetically discussing
Whren). Similarly, Guerrero claims that while Winston applied an
objective test to assess the legality of a protective home sweep,
Winston's ruling relied on the actual facts that the agents knew.
But what he misses is that Winston said that "[r]egardless" of
whether the "agents . . . actually fear[ed] for their safety,"
their "subjective intentions are not relevant as long as the
protective sweep was objectively reasonable." See 444 F.3d at 120(emphases added).
Guerrero next suggests that our Paradis opinion shows
that Buie in no way makes Lott's actual-fear standard passé.
Paradis ruled an apartment sweep illegal, saying that the officers
had "no reasonable basis to conclude that there was a risk to
officers or others" because they "had already been through the
entire apartment" before starting the sweep. See 351 F.3d at 29(second quote), 30 (first quote, emphasis added). But that is
exactly the kind of dive into objective reasonableness Buie
demands. See 494 U.S. at 327, 335-36. Significantly too, Paradis
did not involve a situation where, as in Lawlor and Winston, the
- 28 -
defendant claimed the officers' subjective beliefs trumped any
reasonably objective fear that prompted the sweep — the very type
of claim Lawlor and Winston rejected. So Paradis does not assist
Guerrero in any way.
Citing Cady v. Dombrowski, 413 U.S. 433 (1973), and
Caniglia v. Strom, 141 S. Ct. 1596 (2021), Guerrero also contends
that a constitutional difference exists between protective car
sweeps and protective home sweeps. Not so, we say — for some
straightforward reasons.
Decided in the 1970s, Cady held that officers can
sometimes search autos without a warrant while performing
"community caretaking functions." See 413 U.S. at 441 (observing
that officers often "investigate vehicle accidents in which there
is no claim of criminal liability and engage in what . . . may be
described as community caretaking functions, totally divorced from
the detection, investigation, or acquisition of evidence relating
to the violation of a criminal statute"). Cady did not involve a
protective sweep of an auto under Long, which did not appear in
the U.S. Reports until the 1980s — well before Buie in the 1990s.
And if Cady really means that we should treat autos and homes
differently for protective-sweep purposes, Buie — which extended
Long's logic from autos to homes — should have come out the other
way and invalidated the protective sweep there. Yet Buie does not
- 29 -
even mention Cady. The short of it is that Cady holds no sway
here.
Issued last term, Caniglia said that "[w]hat is
reasonable for vehicles is different from what is reasonable for
homes," see 141 S. Ct. at 1600, and held that "Cady's
acknowledgement of these 'caretaking' duties" does not "create[]
a standalone doctrine that justifies warrantless searches and
seizures in the home," see id. at 1598. But Caniglia took care to
describe the police's community-caretaking duties as "noncriminal"
functions, see id. (emphasis added) — i.e., "conducted for non-
law-enforcement purposes," see id. at 1600 (Alito, J., concurring)
(emphasis added). Perhaps that explains why Caniglia cited neither
Long nor Buie, both of which are criminal cases. Consequently,
like Cady, Caniglia has no effect on this case.
Pulling out all the stops, Guerrero argues that the
officers could not protectively sweep the BMW because they had him
and the passenger "under officer control at all relevant times."
As support, he relies on Arizona v. Gant, 556 U.S. 332 (2009).
Gant held that officers "may search a vehicle incident to a recent
occupant's arrest only if the arrestee is within reaching distance
of the passenger compartment at the time of the search or it is
reasonable to believe the vehicle contains evidence of the offense
of arrest." Id. at 351 (emphases added). But the simple response
- 30 -
is that "Gant explicitly limited its holding to a search-incident-
to-arrest setting," thus keeping Long's standard for protective
sweeps "intact," see McGregor, 650 F.3d at 826 n.5 (citing Gant,
556 U.S. at 346-51, and at 352 (Scalia, J., concurring)) — meaning
Guerrero scores no points with Gant.
Insisting that Lott is not an outlier, Guerrero cites a
Tenth Circuit case — United States v. Wald, 216 F.3d 1222 (10th
Cir. 2000) — that he says (to quote his brief) acknowledges a
"circuit[] . . . split on the issue of whether a particular
officer's actual motivation is relevant to the reasonableness
analysis." That Circuit, remember, holds that an officer's
subjective beliefs do not count for Terry frisks. See Rochin, 662
F.3d at 1274. But going back to the "split," before concluding
that the officers there had no "objectively reasonable suspicion
that [the defendant] was armed and dangerous," Wald listed Lott
and United States v. Prim, 698 F.2d 972 (9th Cir. 1983), as the
two cases saying subjective motives count. See 216 F.3d at 1227.
Lott obviously does not help Guerrero's the-First-Circuit-hardly-
stands-alone thesis. And as it turns out, neither does Prim — a
case he spends some time on.
Released months before Long, Prim said — in a Terry
context, without citing any authority — that "[a]lthough the
existence of reasonable suspicion or probable cause is judicially
- 31 -
viewed under an objective standard, it is a standard applied to
the actual and/or perceived belief of the law enforcement officer
as he either stops and detains or engages in search and seizure."
See Prim, 698 F.2d at 975. Years later, the Ninth Circuit wrote
— in another Terry situation, citing Prim and Lott — that "an
objectively reasonable concern for safety does not justify a Terry
search if the officer did not subjectively entertain that concern."
See United States v. Newberry, 8 F.3d 32 (Table), at *1 (9th Cir.
1993) (unpublished). But more recently, the Ninth Circuit held —
in a protective-car-sweep scenario under Long, citing Whren but
not Prim or Newberry — that the officer's "subjective intentions"
are irrelevant. See United States v. Cain, 349 F. App'x 169, 170
(9th Cir. 2009) (ruling that the "conditions . . . objectively
justified the performance of a protective search by an officer in
[the deputy's] situation" (emphasis added)). So Prim is not the
difference-maker that Guerrero thinks it is.
In something of a final pitch, Guerrero claims that
abandoning Lott's actual-fear requirement will "create[] a serious
and recurring threat to the privacy of countless individuals."
But Supreme Court caselaw outlined above already defines the scope
of privacy in the protective-sweep setting: if an officer's
decision to search is not objectively reasonable, the search cannot
- 32 -
stand — regardless of what the officer's subjective motives were.
Which makes Guerrero's concern not well founded.
Wrap Up
In fidelity to the Supreme Court cases highlighted
earlier, we abrogate Lott to the extent it is inconsistent with
this opinion, reverse the judge's evidence suppression, and remand
for further proceedings.
- 33 -