United States v. Williams ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 04-10213
v.
 D.C. No.
CR-03-40081-SBA
JAMAL WILLIAMS, aka Jamal
Abdullah, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted
June 14, 2005—San Francisco, California
Filed August 16, 2005
Before: Richard C. Tallman, Jay S. Bybee, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Tallman
10763
UNITED STATES v. WILLIAMS 10765
COUNSEL
Jerome E. Matthews, Assistant Federal Public Defender, Oak-
land, California, for the defendant-appellant.
Erika R. Frick, Assistant United States Attorney, San Fran-
cisco, California, for the plaintiff-appellee.
10766 UNITED STATES v. WILLIAMS
OPINION
TALLMAN, Circuit Judge:
Jamal Williams appeals the district court’s order denying
his motion to suppress as evidence a gun recovered when the
car in which he was a passenger was stopped for a traffic
infraction, and Williams, after being ordered to get back
inside the car, threw the weapon out of the passenger window.
While it is well established that an officer effecting a lawful
traffic stop may order the driver and the passengers out of a
vehicle, Maryland v. Wilson, 519 U.S. 408, 410 (1997), we
consider for the first time in this circuit whether an officer
may order a passenger who voluntarily gets out of a lawfully
stopped vehicle back into the automobile without violating the
passenger’s Fourth Amendment rights. In upholding the offi-
cer’s discretion to control the situation as he or she deems
necessary to ensure the safety of the officer and the vehicle
occupants, we answer in the affirmative the question explic-
itly left open by the Wilson Court. Id. at 415 n.3 (finding it
unnecessary to consider whether “an officer may forcibly
detain a passenger for the entire duration of the stop”). We
now hold that a passenger’s compliance with an officer’s
command to get back into the car in which the passenger had
just exited is not an unreasonable seizure under the Fourth
Amendment.
I
In the early morning hours of December 20, 2004, Officer
E. Mausz of the Oakland Police Department, alone on patrol
in a marked police cruiser, observed an automobile to be driv-
ing in violation of California Vehicle Code § 24601, which
requires all vehicles “to illuminate with a white light the rear
license plate during darkness and render it clearly legible
from a distance of 50 feet to the rear.” Monica Miller was
driving while Williams rode in the front passenger seat. Offi-
cer Mausz engaged his patrol car’s lights and siren, and
UNITED STATES v. WILLIAMS 10767
attempted to effect a traffic stop. Miller, however, did not
immediately pull over. Instead, she drove a short distance,
passing several safe places to pull over, before eventually
bringing the car to a complete stop in a parking lot.
After the vehicle had stopped, but before Officer Mausz
could approach the driver of the vehicle, Williams opened the
passenger door of the car and got out. Officer Mausz immedi-
ately ordered Williams to get back into the car, and Williams
complied.
Officer Mausz then walked to the driver’s window and
asked Miller for her license or identification. When Miller
explained that she did not have either, Officer Mausz asked
her to step out of the vehicle, and then handcuffed her and
escorted her back to his patrol car. While the officer walked
Miller to his cruiser, he heard a thud outside Miller’s car.
After placing Miller inside his patrol car, Officer Mausz
walked over to the area from which he had heard the noise,
and observed a Taurus revolver approximately six feet away
from the car, lying on top of some recently fallen pine nee-
dles. A backup officer then arrived on the scene and secured
the weapon.
Williams was later charged with being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). Williams
moved to suppress as evidence the gun, arguing that he was
illegally seized during the traffic stop when Officer Mausz
ordered him back into Miller’s car. The district court denied
his motion without a hearing. Williams then pled guilty,
reserving his right to challenge the district court’s ruling. Fed.
R. Crim. P. 11(a)(2).
The district court sentenced Williams to 51 months impris-
onment. We have jurisdiction under 28 U.S.C. § 1291, and
affirm.
10768 UNITED STATES v. WILLIAMS
II
[1] “The touchstone of our analysis under the Fourth
Amendment is always the reasonableness in all the circum-
stances of the particular governmental invasion of a citizen’s
personal security.” Pennsylvania v. Mimms, 434 U.S. 106,
108-09 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)
(internal quotation marks omitted); see also Wilson, 519 U.S.
at 411. Whether a seizure is reasonable turns “ ‘on a balance
between the public interest and the individual’s right to per-
sonal security free from arbitrary interference by law offi-
cers.’ ” Mimms, 434 U.S. at 109 (quoting United States v.
Brignoni-Ponce, 422 U.S. 873, 878 (1975)). The district
court’s determination that a search was reasonable under the
Fourth Amendment is reviewed de novo. Franklin v. Fox-
worth, 31 F.3d 873, 875 (9th Cir. 1994).
[2] In Wilson, the Supreme Court considered whether
police officers can order a passenger out of a lawfully stopped
vehicle under the Fourth Amendment, balancing the passen-
ger’s liberty interest with the public interest in officer safety.
519 U.S. at 413-14.1 The Wilson Court recognized that the
passenger’s liberty interests are stronger than the interests of
the driver because, although there is probable cause to stop
the driver based on the traffic infraction, “there is no such rea-
son to stop or detain the passengers.” Id. at 413. However, the
Court reasoned that the additional intrusion was minimal
because: “as a practical matter, the passengers are already
stopped by virtue of the stop of the vehicle,” and thus, “[t]he
only change in [the passengers’] circumstances which will
result from ordering them out of the car is that they will be
1
There is no dispute that the initial traffic stop was lawful. The officer
had sufficient cause to believe that the driver was violating Cal. Veh. Code
§ 24601, and properly effected a stop of Miller’s vehicle. United States v.
Garcia, 205 F.3d 1182, 1186-87 (9th Cir. 2000). The only question we
address is whether the officer’s subsequent order to Williams to get back
into the car was reasonable under the Fourth Amendment.
UNITED STATES v. WILLIAMS 10769
outside of, rather than inside of, the stopped car.” Id. at 413-
14.
[3] The Court held, however, that the strong public interest
in officer safety outweighed the minimal intrusion on a pas-
senger’s personal liberty interest. Id. at 413-15. Drawing pri-
marily on the logic of Mimms, the Wilson Court emphasized
the important public interest in maintaining officer safety,
specifically quoting statistics of assaults and homicides on
officers while enforcing traffic laws. Id. at 413; see also
Mimms, 434 U.S. at 110 (“[I]t [is] too plain for argument that
[public concern for] . . . the safety of the officer [ ] is both
legitimate and weighty.”).
[4] Those circuits to address the issue post-Wilson have
agreed that officers may detain passengers during a traffic
stop, whether it is by ordering the passenger to remain inside
the automobile or by ordering the passenger to get back into
an automobile that he or she voluntarily exited. See, e.g.,
Rogala v. District of Columbia, 161 F.3d 44, 53 (D.C. Cir.
1998) (holding that a passenger ordered by police to get back
into the vehicle that she voluntarily exited was not an unrea-
sonable seizure because “a police officer has the power to rea-
sonably control the situation by requiring a passenger to
remain in a vehicle during a traffic stop”) (emphasis in origi-
nal); United States v. Moorefield, 111 F.3d 10, 13 (3d Cir.
1997) (passenger who attempted to voluntarily exit a lawfully
stopped vehicle was not unreasonably seized when the officer
ordered him to get back into the automobile and keep his
hands in the air).2
2
A number of state courts agree. See, e.g., Carter v. State, 494 S.E.2d
108, 109 (Ga. Ct. App. 1997) (officer may order passengers to remain
inside a lawfully stopped vehicle); State v. Webster, 824 P.2d 768, 770
(Ariz. Ct. App. 1991) (officer may order passenger back inside a lawfully
stopped vehicle); see also People v. Gonzalez, 704 N.E.2d 375, 382-83
(Ill. 1998) (“it is reasonable for a police officer to . . . instruct a passenger
to remain at the car, when that passenger, of his own volition, exits the
10770 UNITED STATES v. WILLIAMS
[5] We agree with our sister circuits. The intrusion here is
minimal and the rationale of the Court in Wilson and Mimms
is instructive. As the Wilson Court noted, there is little
infringement on the passenger’s liberty in ordering him or her
out of the car because only the passenger’s location during the
stop is affected. 519 U.S. at 414; see also Mimms, 434 U.S.
at 111 (holding that the intrusion on the driver’s liberty is
minimal where “the only question is whether [the driver] shall
spend that period sitting in the . . . car or standing alongside
it”). We think the difference in ordering the passenger back
inside the car is immaterial.
[6] When Williams attempted to exit the vehicle, the auto-
mobile had already been lawfully stopped with him inside.
The officer’s order to get back into the automobile merely
maintained the status quo by returning the passenger to his
original position as an occupant inside the car. Just as in Wil-
son and Mimms, little is changed upon compliance with the
officer’s order except the position of the passenger. At most,
such an order to re-enter a car that the passenger voluntarily
entered, and just exited, cannot be characterized by anything
but a “mere inconvenience,” Terry, 392 U.S. at 17, that we
think falls far short of a “serious intrusion upon the sanctity
lawfully stopped vehicle at the outset of the stop”); Harris v. Common-
wealth, 500 S.E.2d 257, 261 (Va. Ct. App. 1998) (“officers may . . detain
passengers beside an automobile until the completion of a lawful traffic
stop”). But see, e.g., People v. Dixon, 21 P.3d 440, 445-46 (Colo. Ct. App.
2000) (passenger was unreasonably seized when ordered back into a vehi-
cle that he voluntarily exited). Other state courts have held that an officer
may not detain passengers who voluntarily attempt to exit the automobile
unless it is supported by reasonable suspicion of dangerousness or crimi-
nal activity. Dennis v. State, 693 A.2d 1150, 1152 (Md. 1997), cert.
denied, Maryland v. Dennis, 522 U.S. 928 (1997) (passenger who attempts
to walk away from traffic stop cannot be detained absent reasonable suspi-
cion of dangerousness or criminal activity); Wilson v. State, 734 So. 2d
1107, 1112 (Fla. Ct. App. 1999), review denied, 749 So. 2d 504 (Fla.
1999), cert. denied, 529 U.S. 1124 (2000) (same); Walls v. State, 714
N.E.2d 1266, 1267-68 (Ind. Ct. App. 1999) (same).
UNITED STATES v. WILLIAMS 10771
of the person,” or even a “petty indignity.” Mimms, 434 U.S.
at 111; see also Moorefield, 111 F.3d at 13 (“imposition of
having to remain in the car with raised hands” was “mini-
mal”).
[7] Furthermore, the public concern for officer safety here
is as weighty as it was in Wilson. We have no reason to
believe, nor has Williams provided any evidence to the con-
trary, that traffic stops today present safer encounters for
police officers than they did less than ten years ago when Wil-
son was decided. We are convinced that in this case the con-
tinuing importance of, and the public interest in, promoting
officer safety outweighs the marginal intrusion on personal
liberty. Rogala, 161 F.3d at 53; Moorefield, 111 F.3d at 13;
see also Mimms, 434 U.S. at 111 (“What is at most a mere
inconvenience cannot prevail when balanced against legiti-
mate concerns for the officer’s safety.”).
Williams argues that where a significant portion of the dan-
ger inheres in the fact that occupants can “make unobserved
movements” inside the vehicle, Mimms, 434 U.S. at 110, and
that weapons may be concealed and available within the inte-
rior of the passenger compartment, Wilson, 519 U.S. at 414,
ordering a passenger back into the vehicle makes little sense
from the standpoint of officer safety. See, e.g., Wilson v.
State, 734 So. 2d 1107, 1111 (Fla. Ct. App. 1999), review
denied, 749 So. 2d 504 (Fla. 1999), cert. denied, 529 U.S.
1124 (2000) (risk of “passenger access to weapons potentially
concealed inside a car[ ] would be increased if passengers
were forced back inside the vehicle”) (emphasis in original).
That argument, however, fixates on only one rationale for
the rule announced in Wilson, and ignores a substantial por-
tion of the Court’s full reasoning. Concluding that an officer
may order a passenger out of the car, the Wilson Court enun-
ciated two specific rationales why the rule was justified by the
concern for officer safety. First, the Court explained that
“[o]utside the car, the passengers will be denied access to any
10772 UNITED STATES v. WILLIAMS
possible weapon that might be concealed in the interior of the
passenger compartment.” Wilson, 509 U.S. at 414; see also
Mimms, 434 U.S. at 110 (“a face-to-face confrontation dimin-
ishes the possibility [ ] that the driver can make unobserved
movements; this, in turn, reduces the likelihood that the offi-
cer will be the victim of an assault”). Second, noting the use-
fulness of its prior reasoning in holding that “officers had the
authority to require [an occupant of a home] to re-enter the
house and to remain there while [police] conducted their
search” pursuant to a warrant, the Wilson Court recognized
the value of giving officers control over the movements of
people involved in a traffic stop as helpful in limiting the risk
of danger to the police and the occupants of the car. Wilson,
519 U.S. at 414 (explaining that even where “no special dan-
ger to the police is suggested by the evidence in th[e] record”
certain situations are sufficiently volatile such that “[t]he risk
of harm to both the police and the occupants is minimized if
the officers routinely exercise unquestioned command of the
situation”) (quoting Michigan v. Summers, 452 U.S. 692, 702-
03 (1981)).
[8] That second rationale is particularly applicable here.
Giving officers the authority to control all movement in a traf-
fic encounter is sensibly consistent with the public interest in
protecting their safety. Wilson, 519 U.S. at 414; Rogala, 161
F.3d at 53 (“[I]t follows from Maryland v. Wilson that a
police officer has the power to reasonably control the situa-
tion by requiring a passenger to remain in a vehicle during a
traffic stop[.]”) (emphasis in original). Allowing a passenger,
or passengers, to wander freely about while a lone officer
conducts a traffic stop presents a dangerous situation by split-
ting the officer’s attention between two or more individuals,
and enabling the driver and/or the passenger(s) to take advan-
tage of a distracted officer. Cf. Ruvalcaba v. Los Angeles, 64
F.3d 1323, 1327 (9th Cir. 1995) (noting that “it may be more
dangerous to have the driver outside the vehicle while one or
more other passengers are left inside . . . making it difficult,
if not impossible, for the officer to keep a close watch on
UNITED STATES v. WILLIAMS 10773
these passengers”). Balancing the competing interests does
not require us to ignore real dangers to officers, especially in
light of the minimal intrusion. Mimms, 434 U.S. at 111.
[9] In the final calculus, we think it best left to the discre-
tion of the officers in the field who confront myriad circum-
stances we can only begin to imagine from the relative safety
of our chambers. We hold that under the Fourth Amendment
it is reasonable for an officer to order a passenger back into
an automobile that he voluntarily exited because the concerns
for officer safety originally announced in Wilson, and specifi-
cally the need for officers to exercise control over individuals
encountered during a traffic stop, outweigh the marginal
intrusion on the passenger’s liberty interest.
III
We refuse to address the government’s alternative argu-
ment that Williams lacks standing to challenge the suppres-
sion of the gun because he willfully abandoned his interest in
the firearm by allegedly tossing it out of the passenger win-
dow. Not only did the government fail to raise that argument
to the district court, ALLTEL Information Servs., Inc. v.
F.D.I.C., 194 F.3d 1036, 1043 n.9 (9th Cir. 1999) (arguments
not raised before the district court are deemed waived), but
because we conclude that ordering Williams to get back
inside the automobile was not an unreasonable seizure, the
government’s argument is moot.
AFFIRMED.