United States v. Sergio Guerrero ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF No. 21-10248
AMERICA,
Plaintiff-Appellee, D.C. Nos.
4:19-cr-01468-CKJ-MSA-1
v. 4:19-cr-01468-CKJ-MSA
SERGIO GUERRERO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted June 16, 2022
San Francisco, California
Filed September 2, 2022
Before: Sidney R. Thomas, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Gould;
Concurrence by Judge Bea;
Dissent by Judge S.R. Thomas
2 UNITED STATES V. GUERRERO
SUMMARY *
Criminal Law
In a per curiam opinion, the panel affirmed the district
court’s denial of Sergio Guerrero’s motion to suppress
because of the consistent conclusions of Judge Gould and
Judge Bea, which represent a majority of the panel, even
though the reasoning of Judge Gould and Judge Bea in their
separate concurrences is different.
The panel noted that one exception to the Fourth
Amendment’s prohibition of searches and seizures
conducted without prior approval by judge or magistrate is a
Terry stop, which allows an officer to briefly detain an
individual when the officer has a reasonable articulable
suspicion that an individual is engaged in a crime, during
which stop an officer may also conduct a limited protective
frisk if the officer has reason to believe the individual has a
weapon. The panel noted that another exception is when an
officer has probable cause to arrest an individual.
Judge Gould concurred on the grounds that Trooper
Amick effected a de facto arrest supported by probable
cause.
Judge Bea concurred on the grounds that Trooper Amick
merely detained Guerrero and did not effectuate a de facto
arrest, but that even if Trooper Amick had arrested Guerrero,
there was probable cause to do so.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GUERRERO 3
Dissenting, Judge Thomas wrote that Trooper Amick’s
stop ripened into an arrest when he held Guerrero
handcuffed, on a roadside, for approximately 40 minutes,
waiting for federal officers to arrive; and that Trooper Amick
had no probable cause to do so.
COUNSEL
J. Ryan Moore (argued), Assistant Federal Public Defender;
Jon M. Sands, Federal Public Defender; Office of the
Federal Public Defender, Tucson, Arizona; for Defendant-
Appellant.
Angela W. Woolridge (argued), Assistant United States
Attorney; Christina M. Cabanillas, Deputy Appellate Chief;
Gary M. Restaino, United States Attorney; United States
Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.
4 UNITED STATES V. GUERRERO
OPINION
PER CURIAM:
After the district court denied his motion to suppress,
Sergio Guerrero pled guilty to smuggling ammunition in
violation of 18 U.S.C. § 554(a). Guerrero timely appealed
the denial of his motion to suppress. This appeal challenges
that denial. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
We review the district court’s denial of a motion to
suppress de novo. United States v. Edwards, 761 F.3d 977,
981 (9th Cir. 2014). We review de novo mixed questions of
law and fact, such as whether a seizure became a de facto
arrest and whether an officer had reasonable suspicion or
probable cause. Id.; Ornelas v. United States, 517 U.S. 690,
699 (1996). We review whether the exclusionary rule
applies de novo and the district court’s underlying factual
findings for clear error. United States v. Crawford, 372 F.3d
1048, 1053 (9th Cir. 2004) (en banc).
The Fourth Amendment prohibits unreasonable searches
and seizures by the government. U.S. Const. amend. IV.
“Searches and seizures ‘conducted outside the judicial
process, without prior approval by judge or magistrate, are
per se unreasonable under the Fourth Amendment—subject
to only a few specifically established and well delineated
exceptions.’” United States v. Brown, 996 F.3d 998, 1004
(9th Cir. 2021) (quoting Minnesota v. Dickerson, 508 U.S.
366, 372 (1993)). One exception is a Terry stop, which
allows an officer briefly to detain an individual when the
officer has a reasonable articulable suspicion that an
individual is engaged in a crime; an officer conducting a
Terry stop may also conduct a limited protective frisk of the
individual if the officer has reason to believe he or she has a
UNITED STATES V. GUERRERO 5
weapon. Id. at 1001; Terry v. Ohio, 392 U.S. 1, 21, 30
(1968). Another exception is when an officer has probable
cause to arrest an individual. Brown, 996 F.3d at 1005. “In
distinguishing between a Terry stop and a full-blown arrest,
we consider whether a reasonable person would believe that
he or she is being subjected to more than a temporary
detention, as well as the justification for the use of such
tactics, i.e., whether the officer had sufficient basis to fear
for his safety to warrant the intrusiveness of the action
taken.” Id. at 1006 (simplified and internal quotation marks
omitted).
We affirm the denial of Guerrero’s motion to suppress
because of the consistent conclusions of Judge Gould and
Judge Bea, representing a majority of the panel, that we
should affirm the denial of the motion to suppress.
Affirmance is required by the conclusions of the judges in
the majority, even though the reasoning of Judge Gould and
Judge Bea in their separate concurrences filed herewith is
different. Subjoined to this brief opinion are (1) the separate
concurrence of Judge Gould; (2) the separate concurrence of
Judge Bea; and (3) the dissent of Judge S.R. Thomas.
GOULD, Circuit Judge, concurring:
I concur in affirming the denial of Guerrero’s motion to
suppress on the grounds that Trooper Amick effectuated a de
facto arrest supported by probable cause.
I
Trooper Amick effectuated a de facto arrest of Guerrero,
which required probable cause. First, Trooper Amick
detained Guerrero for approximately one hour. Terry stops
6 UNITED STATES V. GUERRERO
are brief detentions. Id. at 1005; United States v. Place,
462 U.S. 696, 709 (1983) (“[T]he brevity of the invasion of
the individual’s Fourth Amendment interests is an important
factor in determining whether the seizure is so minimally
intrusive as to be justifiable on reasonable suspicion.”).
Here, Trooper Amick’s detention of Guerrero for
approximately one hour, while not dispositive on its own,
see United States v. Sharpe, 470 U.S. 675, 685 (1985), is a
strong indicator that Guerrero’s detention was not just a
Terry stop, but was actually an arrest.
Second, Trooper Amick handcuffed Guerrero while
awaiting the arrival of federal agents. “Handcuffing as a
means of detaining an individual does not automatically
escalate a stop into an arrest, but it ‘substantially aggravates
the intrusiveness of an otherwise routine investigatory
detention and is not part of a typical Terry stop.’” Reynaga
Hernandez v. Skinner, 969 F.3d 930, 941 (9th Cir. 2020)
(quoting United States v. Bautista, 684 F.2d 1286, 1289 (9th
Cir. 1982)). The circumstances surrounding Guerrero’s
handcuffing are particularly suggestive of intrusiveness
beyond a Terry stop. Guerrero was handcuffed for a
significant amount of time: thirty to forty minutes. Trooper
Amick also handcuffed Guerrero despite the fact that
Guerrero had been cooperative and respectful during the
encounter. See id. at 940. And, Trooper Amick had also
already searched Guerrero’s car for weapons, further
indicating that Guerrero was unlikely to be a threat.
In combination, (1) the length of the detention and
(2) the use of handcuffs under the circumstances
transformed Guerrero’s detention into a de facto arrest. A
reasonable person in Guerrero’s situation would not have
thought that they were free to leave. Instead, Guerrero was
not free to leave, and a reasonable person would have
UNITED STATES V. GUERRERO 7
realized that departure was not possible. This was more than
a brief detention akin to a Terry stop, it was a de facto arrest.
II
Probable cause supported Guerrero’s de facto arrest.
Guerrero’s car had heavily tinted windows. After Guerrero
consented to a search of his car, Trooper Amick found
20,000 rounds of rifle and handgun ammunition in
Guerrero’s car, and the ammunition included rounds suitable
for high-powered assault weapons. I give no weight to the
fact Guerrero was driving southward towards the Mexican
border on Highway 10. Highway 10 leads directly to
Tucson, where Guerrero lived, and he was only stopped
23 miles north of Tucson. In these circumstances, if
standing alone, a natural and reasonable inference would be
that Guerrero was heading home, and no reasonable
inference of criminal activity from this southward travel
could be inferred. But the tinted windows and the massive
amount of ammunition point in another direction: that
Trooper Amick’s stop had opened a window to a crime in
process.
The central legal point that should govern our resolution
of this case is that probable cause “requires only a
probability or substantial chance of criminal activity, not an
actual showing of such activity.” D.C. v. Wesby, 138 S. Ct.
577, 586 (2018) (quoting Illinois v. Gates, 462 U.S. 213, 243
n.13 (1983)). Further, probable cause “is not a high bar: It
requires only the ‘kind of fair probability on which
reasonable and prudent [people,] not legal technicians, act.’”
Kaley v. United States, 571 U.S. 320, 338 (2014) (quoting
Florida v. Harris, 568 U.S. 237, 244 (2013)). Here, there
was probable cause that Guerrero was smuggling
ammunition in violation of 18 U.S.C. § 554(a), which was
8 UNITED STATES V. GUERRERO
sufficient to support Trooper Amick’s detaining Guerrero
until federal agents arrived.
The extremely high volume of ammunition in the car
called for extra caution and for bringing in federal
authorities. During this era in which the Department of
Justice is actively investigating threats such as domestic
terrorism, it was reasonable for Trooper Amick to want to
defer a decision about Guerrero until after federal authorities
arrived and could make their own assessment. 20,000
rounds of high-powered ammunition could fuel significant
illicit activities of a militia hostile to democracy or other
highly dangerous criminal behavior. Although the
possession of ammunition was not illegal in Arizona, the
extremely large volume of ammunition here raises risks to
society that needed to be assessed more carefully and could
not be done by a lone state trooper. The federal authorities,
with their special expertise and databases, were properly
invited to assess the situation before Guerrero was sent on
his way with the ammunition. It was reasonable for Trooper
Amick to believe this, and reasonableness is indeed the
touchstone of the Fourth Amendment so far as searches and
detentions are concerned. Kansas v. Glover, 140 S. Ct. 1183,
1191 (2020) (“This Court’s precedents have repeatedly
affirmed that ‘the ultimate touchstone of the Fourth
Amendment is reasonableness.’”) (quoting Heien v. North
Carolina, 574 U.S. 54, 60 (2014)).
I concur.
BEA, Circuit Judge, concurring:
I concur in affirming denial of Guerrero’s motion to
suppress. First, Trooper Amick merely detained Guerrero;
UNITED STATES V. GUERRERO 9
he did not effectuate a de facto arrest. Second, even if
Trooper Amick had arrested Guerrero, there was probable
cause to do so.
I
In determining when an investigatory stop becomes an
arrest, courts must consider the “totality of the
circumstances,” United States v. Del Vizo, 918 F.2d 821, 824
(9th Cir. 1990), including “the severity of the intrusion, the
aggressiveness of the officer’s actions, and the
reasonableness of the officer’s methods.” Reynaga
Hernandez v. Skinner, 969 F.3d 930, 940 (9th Cir. 2020). In
evaluating the severity of the intrusion, courts consider “the
brevity of the invasion on the individual’s Fourth
Amendment interests,” United States v. Sharpe, 470 U.S.
675, 685 (1985), and “whether the officers ‘diligently
pursued a means of investigation that was likely to confirm
or dispel their suspicions quickly, during which time it was
necessary to detain the defendant.’” United States v. Torres-
Sanchez, 83 F.3d 1123, 1129 (9th Cir. 1996) (quoting
Sharpe, 470 U.S. at 686). Although “handcuffing is not part
of a typical Terry stop,” United States v. Bautista, 684 F.3d
1286, 1289 (9th Cir. 1982), an officer’s use of handcuffs
does not automatically “escalate a stop into an arrest” if the
use of handcuffs is justified by the circumstances. Reynaga
Hernandez¸ 969 F.3d at 941.
The issue here is whether Trooper Amick’s decision to
prolong the stop until investigators from the Bureau of
Alcohol, Tobacco, and Firearms (ATF) arrived escalated the
stop into an arrest. This court has previously found that a
detention did not become an arrest when the detention was
prolonged to await the arrival of specialized federal officers.
See United States v. O’Looney, 544 F.2d 385 (9th Cir. 1976);
United States v. Moore, 638 F.2d 1171 (9th Cir. 1980).
10 UNITED STATES V. GUERRERO
In O’Looney, police suspected the defendant of illegally
exporting firearms to the Irish Republican Army. O’Looney,
544 F.2d at 388. The defendant granted the police
permission to search his vehicle, which revealed evidence
that he was connected to another individual who was also
suspected of being involved in illegal firearms exportation.
Id. at 388. After the consensual search of his vehicle, the
defendant was transported in a police car to the police
station. Id. at 389. Police questioned the defendant at the
station for about twenty minutes, and after determining that
no violation of local law had been committed, placed the
defendant in an interrogation room to wait for ATF agents.
Id. The court held that the defendant was not arrested while
he was held in the interrogation room to await ATF agents
because “[i]t was not unreasonable to detain [the defendant]
temporarily at the station to await the arrival of federal
officers who are more familiar with the federal firearms laws
and more experienced in their enforcement,” particularly in
light of the “secrecy and intrigue surrounding the purchase
of an otherwise legal weapon.” Id.O’Looney is directly on point with the present case. In
both cases, the defendant was suspected of using a legal
object for an illegal purpose, namely for transporting
firearms outside of the United States. In both cases, the
defendant was temporarily detained by a state law
enforcement officer until ATF officers could arrive to
question the defendant about a federal crime. The major
factual difference between the present case and O’Looney is
that Guerrero was placed in handcuffs, and the defendant in
O’Looney was not. But the defendant in O’Looney was
transported to a police station, in a police car, and held in an
interrogation room—conditions that arguably constitute a
greater intrusion into an individual’s liberty than the use of
handcuffs. Thus, although Guerrero was detained for an
UNITED STATES V. GUERRERO 11
extended period and placed into handcuffs, he was not
subject to a de facto arrest under the law of this circuit. See
also Moore, 638 F.2d at 1173–74 (holding that appellants
were not arrested when placed in the rear seat of a police car
because it was necessary to secure appellants while awaiting
the arrival of customs officers and the means of securing
them was reasonable under the circumstances).
II
Even if the stop had constituted a de facto arrest, it was
nevertheless supported by probable cause. I agree in
substantial part with Judge Gould’s analysis of the facts
constituting probable cause, but I separately write to
emphasize some particular details.
Probable cause “exists when . . . a prudent person would
have concluded that there was a fair probability that [the
defendant] had committed a crime.” United States v. Lopez,
482 F.3d 1067, 1072 (9th Cir. 2007). The court considers the
totality of circumstances because “the whole is often greater
than the sum of its parts.” D.C. v. Wesby, 138 S. Ct. 577,
586 (2018).
Guerrero was in possession of 7,000 rounds of 9mm
ammunition and 13,000 rounds of 7.62x39mm ammunition.
9mm ammunition is used in handguns, and 7.62x39mm
ammunition is used in AK-47 assault rifles, as well as certain
light machine guns. Significant weight should be given to
the fact that Guerrero possessed a large quantity of
ammunition fit for use in high-powered assault weapons.
Moreover, the large quantity of ammunition suggests that
Guerrero intended the ammunition for commercial, rather
than personal, use. But Guerrero was transporting this
ammunition in a passenger car rather than a commercial
vehicle. The incongruity between the commercial quantity
12 UNITED STATES V. GUERRERO
of ammunition and noncommercial type of vehicle
strengthens the inference of illegal activity.
In addition, Guerrero told Trooper Amick he was
returning home after visiting his mother. Carrying 20,000
rounds of ammunition in the back of one’s vehicle is not
consistent with an ordinary trip to one’s mother’s house. It
is reasonable for this seemingly out-of-the-ordinary pattern
of events to raise further suspicion.
When asked who owned the car, Guerrero first said it
belonged to his sister “Jaqueline” then corrected himself and
said it belonged to his sister “Martha.” The dissent places
little weight on the fact that Guerrero initially named the
wrong sister, noting that Guerrero gave only one inconsistent
answer. I disagree with this assessment of the facts.
Although Guerrero’s naming of the wrong sister could
reasonably be interpreted as a benign mistake, it could also
be indicative of nervousness, increasing a reasonable
officer’s suspicion of illegal activity. Also, as discussed
above, multiple aspects of Guerrero’s story were
inconsistent, including the fact that he was returning from
his mother’s house with a large amount of ammunition, and
the fact that he was carrying a commercial quantity of
ammunition in a personal vehicle. When taken together,
these inconsistencies increase the reasonable possibility of
criminal activity.
The dissent gives little weight to Guerrero’s use of tinted
windows, to Guerrero’s proximity to the border, and to
Guerrero’s southward direction of travel. Although each of
these facts, standing alone, may offer only a slight basis for
suspicion, the probable cause analysis must be based on a
totality of the circumstances. Wesby, 138 S. Ct. at 586. The
question is not whether Guerrero’s tinted windows or
proximity to the border were independently sufficient to
UNITED STATES V. GUERRERO 13
create probable cause for arrest, but whether Guerrero’s
proximity to the border, use of tinted windows, proffering of
inconsistent statements, and possession of a large quantity of
assault-rifle ammunition in a passenger vehicle heading
south all combine to create a fair probability that Guerrero
was engaging in illegal activity. I believe that they do.
On a final note, Judge Gould’s concerns about domestic
terrorism are misplaced. The language in his concurrence
regarding “illicit activities of a militia hostile to democracy”
undoubtedly refers to the January 6, 2021, attack on the
United States Capitol. But the events in the present case took
place in April of 2019, nearly two years prior to the events
of January 6, 2021. There is nothing in the record to suggest
that Trooper Amick was concerned about domestic terrorism
at the time of the detention, and such a concern would not be
reasonable under the circumstances.
For these reasons, I concur.
S.R. THOMAS, Circuit Judge, dissenting:
I respectfully dissent from the panel majority’s
affirmance. I would reverse the district court. Trooper
Amick’s stop ripened into an arrest when he held Guerrero
handcuffed, on a roadside, for approximately 40 minutes,
waiting for federal officers to arrive. Trooper Amick had no
probable cause to do so. Thus, I agree with the Magistrate
Judge’s findings and recommendations, and would reverse
the district court’s denial of the suppression motion.
14 UNITED STATES V. GUERRERO
I
There are two aspects to this stop that make it
unreasonably intrusive in light of the circumstances. The
first is Trooper Amick’s unjustified use of handcuffs. The
second is Trooper Amick’s decision to cease his
investigation for 40 minutes to wait for more experienced
officers to arrive.
During a Terry stop “police may not carry out a full
search of the person or of his automobile or other effects.
Nor may the police seek to verify their suspicions by means
that approach the conditions of arrest.” Florida v. Royer,
460 U.S. 491, 499 (1983) (plurality opinion). For a brief
investigatory stop to retain its character as a Terry stop, it
must “last no longer than is necessary to effectuate the
purpose of the stop . . . . [and] the investigative methods
employed should be the least intrusive means reasonably
available to verify or dispel the officer’s suspicion in a short
period of time.” Id. at 500.
An officer’s use of handcuffs does not automatically
“escalate a stop into an arrest” where handcuff use is
justified by the circumstances, including:
1) where the suspect is uncooperative or takes
action at the scene that raises a reasonable
possibility of danger or flight; 2) where the
police have information that the suspect is
currently armed; 3) where the stop closely
follows a violent crime; and 4) where the
police have information that a crime that may
involve violence is about to occur.
UNITED STATES V. GUERRERO 15
Reynaga Hernandez v. Skinner, 969 F.3d 930, 940 (9th Cir.
2020) (quoting Washington v. Lambert, 98 F.3d 1181, 1189
(9th Cir. 1996)).
In this case, Trooper Amick placed Guerrero in
handcuffs following initial questioning. The record is
undisputed that Guerrero was “super cooperative,” “very
respectful,” and “nothing but courteous” throughout their
encounter. During the Trooper’s consensual search of
Guerrero’s car, Guerrero obeyed instructions to stand
approximately 30 feet from the vehicle. Guerrero’s
demeanor was entirely consistent with lawful behavior. The
Trooper had no information Guerrero was armed; indeed, he
had already searched the car for weapons. The stop did not
follow a violent crime; Guerrero was stopped for a window
tint violation. And Trooper Amick had no information that
a crime of violence was about to occur. In sum, the
handcuffing was not justified under Lambert.
The second aspect of the detention that indicates the
Terry stop had transformed into a de facto arrest is the length
of the detention. A Terry stop must “last no longer than is
necessary to effectuate the purpose of the stop[.]” Royer,
460 U.S. at 500. “[T]he brevity of the invasion of the
individual’s Fourth Amendment interests is an important
factor in determining whether the seizure is so minimally
intrusive as to be justifiable on reasonable suspicion.”
United States v. Place, 462 U.S. 696, 709 (1983); see also
United States v. Jennings, 468 F.2d 111, 115 (9th Cir. 1972)
(holding that, after an initial investigative inquiry on the
street is completed, continued detention of an individual for
fingerprinting and photographing is constitutionally invalid
without probable cause to arrest). “[I]n assessing the effect
of the length of the detention, [a court] take[s] into account
16 UNITED STATES V. GUERRERO
whether the police diligently pursue[d] their investigation.”
Place, 462 U.S. at 709. 1
In this case, Trooper Amick’s initial investigation of the
tinted window violation resolved quickly. The Trooper’s
subsequent investigation of his suspicion of smuggling
activity took approximately 20 minutes. Following the
Trooper’s call to the federal authorities, Guerrero was
detained in handcuffs for an additional 40 minutes, without
Trooper Amick conducting any further investigation. Thus,
the Trooper did not “diligently pursue a means of
investigation that was likely to quickly dispel his suspicion”
of smuggling goods from the United States. United States v.
Torres-Sanchez, 83 F.3d 1123, 1129 (9th Cir. 1996) (quoting
United States v. Sharpe, 470 U.S. 675, 686 (1985)). Indeed,
the Trooper put his investigation on hold for an additional
40 minute detention after completing the search of the
vehicle. In other words he chose a means of further
investigation—waiting for federal officers—that
necessitated considerable delay.
In short, the confluence of the handcuffs and 40 minute
delay after completion of the initial investigation exceeded
the scope of a brief investigatory detention. At no point was
Guerrero free to leave. Thus, under these circumstances, the
extended detention constituted a de facto arrest.
1
Although there is no bright line rule as to the detention time
deemed to be unreasonable, see Place, 462 U.S. at 709, the American
Law Institute’s Model Code for Pre-Arraignment Procedure states that a
Terry detention should be “for such period as is reasonably necessary for
the accomplishment of the purposes authorized . . . but in no case for
more than twenty minutes.” § 110.2(1) (1975); see Place, 462 U.S.
at 709 n.10.
UNITED STATES V. GUERRERO 17
II
Trooper Amick lacked probable cause for the arrest.
“Probable cause to arrest exists when . . . . [given the facts]
known to the arresting officers, a prudent person would have
concluded that there was a fair probability that [the
defendant] had committed a crime.” United States v. Lopez,
482 F.3d 1067, 1072 (9th Cir. 2007) (citations omitted).
Although it “is not a high bar,” D.C. v. Wesby, 138 S. Ct.
577, 586 (2018), it requires more than “[m]ere suspicion,
common rumor, or even strong reason to suspect,” a crime is
being committed, Lopez, 482 F.3d at 1072. Rather than
viewing each fact in isolation, a court reviews the totality of
circumstances because “the whole is often greater than the
sum of its parts.” Wesby, 138 S. Ct. at 588. And, where
innocent facts form the basis for an officer’s suspicion, “the
relevant inquiry is not whether particular conduct is
‘innocent’ or ‘guilty,’ but the degree of suspicion that
attaches to particular types of noncriminal acts.” Id. (citation
omitted). “Probable cause is an objective standard.” Lopez,
482 F.3d at 1072.
There are five facts which the probable cause
determination is defended: (1) the amount of ammunition;
(2) the type of ammunition; (3) the tinted window violation;
(4) the car’s proximity to the border and south-bound route;
and (5) Guerrero’s contradictory answers to Trooper
Amick’s questions. I agree with this assessment of the
relevant facts with one exception. Guerrero gave only one
contradictory answer. He first told Trooper Amick the car
belonged to his sister “Jacqueline” but then he corrected
himself and said it belonged to “Martha.” The Magistrate
Judge determined that Trooper Amick did not find this
misstatement unusual or suspicious, and the district court
adopted this finding. Although the probable cause inquiry is
18 UNITED STATES V. GUERRERO
objective, Lopez, 482 F.3d at 1072, like the district court, I
place little weight on this fact.
The suspicion inquiry hinges on three facts: Guerrero’s
possession of 20,000 rounds of rifle and handgun
ammunition, the tinted automobile windows, and Guerrero’s
southbound travel in the general direction of Mexico. As the
last two facts are almost entirely benign, I begin with those.
Guerrero was stopped traveling southeasterly on
Highway 10 about 23 miles from Tucson, and almost
90 miles from the Mexican border. The district court
characterized this corridor as a “common smuggling route,”
However, highway 10 is the artery connecting Arizona’s two
largest cities, Tucson and Phoenix. The Supreme Court has
listed proximity to the border as a factor in assessing
reasonable suspicion. See United States v. Brignoni-Ponce,
422 U.S. 873, 884 (1975). However, it has also cautioned
against placing much weight on heavily trafficked highways
with “a large volume of legitimate traffic.” Id. at 882. In
this case, the fact that Guerrero was north of Tucson, a city
with a metro area of over a million people and his home,
renders the direction of this travel relatively innocuous. The
officer’s examination of Guerrero’s driver’s license verified
that he lived in Tucson. Had Guerrero been on the south side
of Tucson heading towards the border, or on a back road,
perhaps this fact would be more suggestive of intent to
smuggle goods out of the country. But he was on a busy
Interstate north of Tucson, proceeding in the direction of his
home in Tucson, and some 90 miles away from the Mexican
border.
Turning to the tinted windows, it is noteworthy that
Guerrero did nothing further to conceal the ammunition,
which tends to undermine the significance of this fact.
Guerrero did not cover the ammunition with a tarp or
UNITED STATES V. GUERRERO 19
otherwise attempt to hide it and, when asked, freely gave his
consent for Trooper Amick to search his car—which
rendered any benefit from the window tint fruitless. In sum,
the fact of tinted windows does not independently support
probable cause, and adds little to a collective analysis.
The only question then is what reasonable inferences can
be drawn from the fact that Guerrero legally possessed
20,000 rounds of ammunition. There was no suggestion that
he possessed the ammunition illegally, and Guerrero made
no effort to conceal it. When an officer becomes suspicious
on the basis of noncontraband materials, an officer does not
have probable cause of criminal activity unless the officer
has more information about how the suspect intends to use
the item. See United States v. Tate, 694 F.2d 1217, 1221 (9th
Cir. 1982), vacated on other grounds, 468 U.S. 1206 (1984).
Here, there was no additional information or other
indication of illegal activity. As the Magistrate Judge
pointed out, “Defendant freely told Trooper Amick that he
was carrying that amount of ammunition.” The Magistrate
Judge further noted that the “Defendant’s demeanor was
perfectly consistent with lawful behavior.” Significantly,
Trooper Amick never asked Guerrero what he was doing
with 20,000 rounds of ammunition or asked any other
questions about it. And the possession of it was
unquestionably legal.
Given the negligibly suspicious value of the surrounding
facts, here, the “whole is [not] greater than the sum of its
parts.” See Wesby, 138 S. Ct. at 588 (citing Arvizu, 543 U.S.
at 277–78). Although probable cause is not a high bar, a
reasonable officer in Trooper Amick’s shoes would have, at
20 UNITED STATES V. GUERRERO
most, a “strong reason to suspect” smuggling, which is not
enough under our case law.
For these reasons, I respectfully dissent.