United States v. Gurule , 929 F.3d 1214 ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
July 11, 2019
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 18-4039
TOMMY GURULE,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:17-CR-00485-DS-1)
Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States
Attorney, with him on the briefs), Office of the United States Attorney, Salt Lake
City, Utah, for Appellant.
Daphne Oberg, Assistant Federal Public Defendant (Kathryn N. Nester, Federal
Public Defender, and Bretta Pirie, Assistant Federal Public Defender, with her on
the brief), Office of the Federal Public Defender, Salt Lake City, Utah, for
Appellee.
Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit
Judges.
TYMKOVICH, Chief Judge.
Tommy Gurule was frisked during a routine traffic stop of a car in which he
was a passenger. When officers discovered a pistol, he was arrested and charged
under 18 U.S.C. § 922(g) as a felon in possession of a firearm. Gurule moved to
suppress both the pistol and his subsequent confession as the products of an
illegal search.
The district court granted this motion, concluding Gurule had been
unlawfully detained during the traffic stop and the officers lacked the necessary
reasonable suspicion to frisk him.
We reverse. We conclude the officers did not violate the Fourth
Amendment when they (1) reasonably detained Gurule and the other occupants of
the car prior to the search; and (2) frisked Gurule after they observed a gun in his
pocket and had otherwise developed the reasonable suspicion he might be armed
and dangerous.
I. Background
On the night of June 29, 2017, an officer from the West Valley City street
crimes unit observed a sedan commit several traffic infractions. The officer
initiated a traffic stop, and the car pulled into the parking lot of a nearby gas
station. The parking lot was poorly lit, with a fence to the vehicles’ right, the
station to their left, and a darkened field beyond.
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The sedan contained three occupants—two in front and one in back. None
possessed a valid driver’s license, and the driver had accumulated multiple
misdemeanor warrants, which she volunteered to the officer upon first contact.
As the officer conducted a records check, one of his colleagues arrived to provide
backup. Upon his arrival, the second officer made idle conversation with the
occupants of the vehicle and focused primarily on securing the scene. The sedan
was outfitted with tinted windows and also contained a great deal of property,
since the driver apparently was living out of her car.
After completing a records check, the driver was informed that a licensed
driver was required to operate the vehicle lawfully. The officer also told the
driver he would not arrest her if she revealed the presence of any contraband in
the sedan. In response, she volunteered that the officers could search her vehicle
to verify her claim that it contained nothing illegal. The officer confirmed her
consent to the search and asked that she contact a licensed driver.
The officers then asked the vehicle’s passengers to exit. Upon leaving the
car, the front-seat passenger consented to a protective frisk. The officers then
asked the back-seat passenger—Tommy Gurule—if they could also perform a
protective frisk. Gurule twice told the officers that he would not consent to a
search, and was directed to sit at a nearby curb.
Gurule had initially engaged officers in a friendly manner—even
volunteering that a bottle of alcohol in the sedan was his, so as not to incriminate
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the driver. As one officer asked repeatedly whether Gurule possessed any
weapons, both officers began expressing concern that he was responding
deceptively. Gurule disputed that he was acting uncooperatively and stated that
he had no weapon. Unsatisfied with this response, one of the officers ordered
Gurule to stand.
As Gurule began to stand, the other officer noted a visible bulge in
Gurule’s right-front pocket. That officer took hold of Gurule’s right arm as a
protective action. He then observed a gun in Gurule’s right-front pocket. Both
officers handcuffed Gurule before confiscating a pistol. Gurule’s equivocal
response to questioning about his criminal history prompted further investigation,
which revealed a prior felony conviction. He was arrested and—in a post-arrest
interview—confessed to knowingly possessing the pistol.
Gurule subsequently filed a motion to suppress both the firearm and his
post-arrest statements, arguing they were fruits of an unlawful detention and
search. After an evidentiary hearing at which both officers testified, the district
court concluded Gurule should have been free to leave the scene on foot before
the protective search. The district court also found that—even had Gurule’s
detention been lawful—the officers had not developed the requisite reasonable
suspicion to frisk him.
II. Analysis
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The government contends that (1) the officers were permitted to detain
Gurule until completion of the traffic stop; and (2) the protective search was
lawful since—during the detention—officers developed reasonable suspicion that
Gurule was armed and dangerous. We agree.
We accept the district court’s factual findings “unless they are clearly
erroneous.” United States v. Burleson, 657 F.3d 1040, 1044 (10th Cir. 2011)
(quoting United States v. Caro, 248 F.3d 1240, 1243 (10th Cir. 2001)). 1 But we
review de novo the district court’s legal conclusions, including “the ultimate
determination of reasonableness under the Fourth Amendment.” Id. (same).
A. The Traffic-Stop Detention
Traffic stops are seizures subject to the Fourth Amendment’s requirement
for reasonableness. See, e.g., Rodriguez v. United States, 135 S. Ct. 1609, 1614
(2015). It is well-established that the “touchstone” of this inquiry “is always the
reasonableness in all the circumstances of the particular governmental invasion of
a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S. 106, 108–09
(1977) (citing Terry v. Ohio, 392 U.S. 1, 19 (1968)) (internal quotation marks
omitted). “Reasonableness” in this context will hinge “on a balance between the
public interest and the individual’s right to personal security free from arbitrary
1
Video and audio body-camera footage from both officers was also
included in the record. R. 136, 137.
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interference by law officers.” Id. at 109. (quoting United States v. Brignoni-
Ponce, 422 U.S. 873, 878 (1975)).
In Mimms, the Supreme Court recognized “the safety of the officer” as a
“legitimate and weighty” interest in support of detention during a traffic stop. Id.
at 110. “Against this important interest,” courts must weigh “the intrusion into
the driver’s personal liberty . . . by the order to get out of the car.” Id. at 111.
Ultimately, the Court concluded this intrusion was “at most a mere inconvenience
[that] cannot prevail when balanced against legitimate concerns for the officer’s
safety.” Id.
The Supreme Court has employed a similar logic in permitting police
officers to order passengers from stopped cars. In Maryland v. Wilson, the
Court—while acknowledging the personal-liberty interests of “passengers [are] in
one sense stronger than that for the driver”—also recognized that the “danger to
an officer from a traffic stop is likely to be greater when there are passengers in
addition to the driver in the stopped car.” 519 U.S. 408, 413–14, 14–15 (1997).
For this reason, the Court concluded that “[t]he risk of harm to both the police
and the [vehicle’s] occupants is minimized if the officers routinely exercise
unquestioned command of the situation.” Id. at 414. (quoting Michigan v.
Summers, 452 U.S. 692, 702–03 (1981)).
For much the same reason, the Supreme Court has observed it is
“reasonable for passengers to expect that a police officer at the scene of a crime,
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arrest, or investigation will not let people move around in ways that could
jeopardize his safety.” Brendlin v. California, 551 U.S. 249, 258 (2007). Indeed,
the Court explained that no “sensible person” would “expect a police officer to
allow people to come and go freely from the physical focal point of an
investigation.” Id. at 257.
Moreover, the Court has further acknowledged that passengers may be
detained for the duration of an otherwise-valid traffic stop: “The temporary
seizure of driver and passengers ordinarily continues, and remains reasonable, for
the duration of the stop. Normally, the stop ends when the police have no further
need to control the scene. . . .” Arizona v. Johnson, 555 U.S. 323, 333 (2009)
(citing Brendlin, 551 U.S. at 258).
Employing much the same calculus in balancing these interests, our court
has likewise held police officers may lawfully order passengers to remain in a
stopped vehicle, United States v. Holt, 264 F.3d 1215, 1223 (10th Cir. 2001) (en
banc), or to exit the vehicle, depending upon the circumstances. United States v.
Dennison, 410 F.3d 1203, 1210–11 (10th Cir. 2005) (“[A]n officer making a
traffic stop may order both the driver and passengers to exit the vehicle pending
completion of the stop because the additional intrusion on the passenger is
minimal.” (citations and quotation marks omitted)).
Given the circumstances the officers confronted in this case, these
principles point towards an inescapable conclusion. So long as law enforcement
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retains the “need to control the scene”—here, for at least the duration of a consent
search of the vehicle—the longstanding interest in officer safety outweighs any
additional intrusion created by investigatory detention to a passenger’s personal
liberty. See Johnson, 555 U.S. at 333. 2
Gurule argued before the district court the officers unreasonably extended
his detention by requiring that he remain at the scene of the traffic stop beyond
the point at which it was clear he had no warrants and was not dangerous. But, as
we have discussed, our precedent establishes that a passenger may be detained for
the duration of an otherwise-lawful traffic stop.
For the first time on appeal—relying upon Rodriguez v. United States, 135
S. Ct. 1609 (2015)—Gurule argues the officers also unconstitutionally extended
the traffic stop as against the vehicle’s driver. In Rodriguez the Supreme Court
observed that “the tolerable duration of police inquiries in the traffic-stop context
is determined by the seizure’s ‘mission’—to address the traffic violation that
warranted the stop, and attend to related safety concerns.” Id. at 1614 (citations
omitted). Gurule contends the lead officer extended the permissible duration of
the stop by questioning the driver about the contents of her car.
2
In his answer brief, Gurule argues for the first time that the search of the
vehicle was coerced. Aple. Br. 23–27. We decline to consider the merits of this
claim, as Gurule presented as undisputed fact before the district court in his
Memorandum in Support of Motion to Suppress that “the driver consented to a
search of the vehicle.” See R. 10.
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Although not preserved below, if we did reach the merits, this argument
likewise cannot support Gurule’s theory that he was unlawfully detained as a
derivative consequence of the driver’s detention. None of the vehicle’s occupants
possessed a valid driver’s license, and the efforts on the part of law enforcement
to help locate a licensed driver cannot be characterized as unconstitutionally
extending this traffic stop.
In a similar case, United States v. Vargas, 848 F.3d 971, 974 (11th Cir.
2017), an officer learned during the course of a valid traffic stop “that [the driver]
did not have a driver’s license, so [he] could not legally operate the vehicle. In
an attempt to find someone who could, [the officer] asked [the passenger] if he
had a driver’s license.” Id. at 974. The passenger, like Gurule here, did not have
one either.
In Vargas, the officer “went even further in his attempt to end the detention
and . . . asked [both driver and passenger] if they knew someone with a license
they could call to drive the vehicle away.” Id. In finding no fault with the
encounter, the court held: “All of [law enforcement’s] actions were taken in the
lawful discharge of [its] duties, which included enforcement of the law requiring
that any person driving a vehicle be licensed to do so.” Id. (emphasis added).
Most importantly, that exercise was, “in the words of the Rodriguez
opinion, ‘fairly characterized as part of [law enforcement’s] traffic mission.’” Id.
(emphasis added). It was “after [law enforcement] discovered that neither man
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had a driver’s license, and while the continued detention was still lawful, that [the
officer] asked [the driver] for permission to search the vehicle.” Id. As the court
observed, efforts aimed at preventing unlicensed drivers “from driving off without
a license is lawful enforcement of the law, not unlawful detention.” Id. “What
prolonged the stop was not [law enforcement’s] desire to search the vehicle but
the fact that [the] occupants of it could not lawfully drive it away.” Id. at
974–75.
The same logic would apply here. Accordingly, we conclude the district
court erred in finding the officers unlawfully detained Gurule prior to the pat-
down search.
B. The Pat-Down Search
During a valid investigatory detention, officers may conduct a limited
protective search (commonly called a pat-down search or frisk) if they develop an
articulable and reasonable suspicion that the subject is armed and dangerous.
United States v. Hammond, 890 F.3d 901, 905 (10th Cir. 2018). Within the
context of a traffic stop, this is true not only for the driver but also for any
passengers. Johnson, 555 U.S. at 332.
Because a frisk is a search for the purposes of the Fourth Amendment, it is
subject to the reasonableness requirement the Supreme Court outlined in Terry.
United States v. Garcia, 751 F.3d 1139, 1142 (10th Cir. 2014). The primary
justification for a frisk, of course, is officer safety. Id. (citing Terry, 392 U.S. at
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27). We accordingly recognize the officer-safety rationale can overcome even
“limited specific information leading [law enforcement] to believe that an
individual was armed or dangerous.” Id. (quoting United States v. McRae, 81
F.3d 1528, 1536 (10th Cir. 1996)).
At any rate, reasonable suspicion “is not, and is not meant to be, an onerous
standard.” United States v. Pettit, 785 F.3d 1374, 1379 (10th Cir. 2015) (quoting
United States v. Kitchell, 653 F.3d 1206, 1219 (10th Cir. 2011)). It requires
“considerably less” than a preponderance of the evidence and “obviously less”
than probable cause. Id. (quoting United States v. Esquivel-Rios, 725 F.3d 1231,
1236 (10th Cir. 2013)). So long as officers develop “a particularized and
objective basis for suspecting an individual may be involved in criminal activity,
[they] may initiate an investigatory detention even if it is more likely than not that
the individual is not involved in any illegality.” Id. at 1379–80. (citing United
States v. Johnson, 364 F.3d 1185, 1194 (10th Cir. 2004)) (emphasis added).
When assessing reasonable suspicion, we “defer to all reasonable
inferences made by law enforcement officers in light of their knowledge and
professional experience distinguishing between innocent and suspicious actions.”
Id. at 1379. (citing United States v. Winder, 557 F.3d 1129, 1133 (10th Cir.
2009)). We evaluate each factor alleged to support an inference of reasonable
suspicion separately and in the aggregate. Id. at 1380. (citing United States v.
Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998)). Although individual
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factors—when analyzed separately—might admit of innocent explanation, we may
nonetheless hold they create reasonable suspicion in the aggregate. See id.
1. Timing of the Frisk
The parties contest the precise moment at which the search commenced.
Gurule contends the search began when he was ordered to his feet and one officer
grabbed hold of his right arm. The government, by contrast, argues the search did
not commence until the officer physically manipulated Gurule’s right-front
pocket—at which point one officer had already observed not only the bulge but
also the gun itself.
The government has the stronger argument. The frisk did not begin until
after Gurule was already on his feet and officers had seen the gun. We evaluate
the circumstance under an objective standard, and even if the officers intended to
frisk Gurule after he was on his feet, that does not matter for our analysis. See
United States v. Tinnie, 629 F.3d 749, 753 (7th Cir. 2011) (observing “it is
irrelevant that” the officer “decided to frisk” the defendant “before directing him
to exit the car”). Thus, by the time the search had therefore begun, at least one
officer had seen the gun, such that both officers were justified in securing it for
the duration of the vehicle search. Garcia, 751 F.3d at 1141.
But even had we accepted Gurule’s argument that the frisk began when he
was ordered to his feet, the totality of the circumstances created more than the
requisite reasonable suspicion for officers to conduct the protective frisk.
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2. Reasonableness of the Frisk
Several factors support a finding of reasonableness. As previously noted,
the officers did not frisk Gurule until after they had noticed an unusual bulge in
Gurule’s right-front pocket. As the Supreme Court observed in Mimms, a visible
and suspicious “bulge” in a driver’s pocket may alone “permit[] the officer to
conclude that [the suspect] was armed and thus posed a serious and present
danger to the safety of the officer.” 434 U.S. at 112.
Gurule contends the district court made no factual finding that either
officer noticed the bulge. But this claim ignores both uncontested testimony
about what officers observed, as well as footage from both body cameras
indicating a plainly-visible bulge. E.g., R. 116-18. Moreover, the very fact that
the officers asked repeatedly whether Gurule was carrying a weapon suggests
contemporaneous concern that he was deceitful. 3
The government also emphasizes the vulnerability that attends the act of
turning one’s back on multiple subjects while searching an unfamiliar vehicle.
The very fact of a search creates a need to detain individuals safely. See, e.g.,
3
The district court also relied on an unpublished case, United States v.
House, 463 F. App’x 783 (10th Cir. 1999), for the proposition that even actual
knowledge that a suspect was armed would not create reasonable suspicion that he
might be “armed and dangerous.” See R. 69. (emphases added). But we have
explicitly rejected the notion that officers must assess “armed” and “dangerous”
in disjunctive fashion: “[A]n officer’s suspicion that an individual is dangerous
can affect that officer’s suspicion that an individual is armed, and vice versa.”
Garcia, 751 F.3d at 1143 n.7.
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United States v. Manjarrez, 348 F.3d 881, 886–87 (10th Cir. 2003) (“The purpose
of the limited pat-down search is not to discover evidence of a crime, but to allow
the officer to pursue his investigation without fear of violence.”) (citations and
quotation marks omitted). Nor does the presence of an additional officer
necessarily vitiate this concern. See United States v. Fager, 811 F.3d 381, 389
(10th Cir. 2016) (“[I]f [the defendant] harbored a desire to use his weapon against
the officers, he may very well have used it regardless of whether the backup
officer was keeping an eye on him. . . .”).
This danger is only heightened when at least one of the subjects has
accumulated multiple arrest warrants. Officers are “entitled to infer a common
purpose or enterprise” between drivers and passengers when one, as here, knows
of the other’s “arrest warrants and would want to conceal evidence of any
wrongdoing.” See id. (quoting Dennison, 410 F.3d at 1213). 4
In this instance, the driver volunteered she was the subject of at least one
outstanding warrant for theft. And the district court found—based on the
4
We have observed that—“[i]n conjunction with other factors[—]criminal
history contributes powerfully to the reasonable suspicion calculus.” E.g., United
States v. Simpson, 609 F.3d 1140, 1147 (10th Cir. 2010) (quoting United States v.
White, 584 F.3d 935, 951 (10th Cir. 2009)). But this commonsense principle is
not without limits and must operate—as here—in conjunction with other factors:
“To be sure, this [c]ourt has held that a prior criminal history is by itself
insufficient to create reasonable suspicion.” United States v. Santos, 403 F.3d
1120, 1132 (10th Cir. 2005) (citing United States v. Sandoval, 29 F.3d 537, 542
(10th Cir. 1994)).
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testimony of one officer—that the vehicle’s backseat contained a great deal of
property. R. 63. The combination of these circumstances could reasonably lead
officers to conclude they should exercise special caution in conducting the search,
given the possibility that criminal activity was once again afoot.
The time and the place of the traffic stop lastly contribute to the
reasonableness of the pat-down search. In Johnson, we observed that “the nature
of the area in which a detention takes place is a relevant consideration in the
[reasonable-suspicion] analysis.” 364 F.3d at 1193. The stop transpired at night,
(10:30 PM), and the government emphasizes both the darkness of the gas-station
parking lot, as well as the proximity of a darkened field just beyond where the
vehicles had stopped. In addition, one officer observed that the general area
“regularly sees a high volume of drug activity as well as property crimes[,]
including stolen vehicles.” R. 108–09.
Even had one officer not seen the gun in Gurule’s right-front pocket, we
conclude these circumstances—when taken together—would create the requisite
reasonable suspicion to justify the frisk.
III. Conclusion
For the reasons set forth above, we REVERSE the district court’s decision
granting Gurule’s motion to suppress.
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United States v. Gurule, No. 18-4039, Bacharach, J., concurring.
The majority opinion properly recognizes that Mr. Gurule forfeited
his Rodriguez argument. Majority Op. at 9. Nonetheless, the majority states
how it would decide this issue if it had been preserved. Id. at 9–10. Given
Mr. Gurule’s forfeiture, I would decline to say how we would decide the
merits. I otherwise agree with the majority opinion.