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,

(11th Cir. 2021)

(Rosenbaum, J., concurring in the judgment).1 The Fourth

Amendment's core command is reasonableness. See United States v.

Rodriguez-Morales,

(1st Cir. 1991) (citing

Delaware v. Prouse,

(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,

(7th Cir. 1988) (Posner, J., for the court); see

also United States v. Hensley,

(1985).

Take, for example, "investigative detentions involving

suspects in vehicles," see Michigan v. Long,

(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. - 2 - 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."

.

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

(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

(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.

- 3 - United States, for instance. See

(1996).

United States v. McGregor signaled that Whren's "reasoning" might

put Lott's actual-fear test in serious jeopardy. See

(1st Cir. 2011). But because the government did not

press the matter there, we did not take up the topic. See

(remarking that other cases — Ivery,

, and United

States v. Nee,

(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

— 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

- 4 - 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,

(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,

. - 5 - 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

(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

- 6 - 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

- 7 - 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

. 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

(1990) — regardless

of their subjective fears, see

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.

- 8 - 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

- 9 - 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,

(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,

(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"),

(1st Cir. 2010). The

public has a right to expect a reasonable degree of predictability

and certainty. See, e.g., United States v. Barbosa,

, - 10 - 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,

(2019)

(commenting that "[a]dherence to precedent is 'a foundation stone

of the rule of law'" (quoting Michigan v. Bay Mills Indian Cmty.,

(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,

(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,

(quoting Williams v. Ashland Eng'g

Co.,

(1st Cir. 1995)); see also United States v.

Lewis,

(1st Cir. 2020), cert. denied,

(2021). These exceptions are "narrowly circumscribed,"

however. Arevalo v. Barr,

(1st Cir. 2020) (quoting

- 11 - Barbosa,

). And the situations in which they operate

are "hen's-teeth-rare."

(quoting Barbosa,

).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,

.

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,

, (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"). - 12 - "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,

(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

- 13 - the fore when "recent Supreme Court precedent calls into legitimate

question a prior opinion" by this court. See United States v.

Rodriguez-Pacheco,

(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,

(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

(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."

. And courts "judge[]" their

decisions "against an objective standard: would the facts

- 14 - available to" them "'warrant [persons] of reasonable caution in

the belief' that the action[s] taken w[ere] appropriate?"

at

21-22 (quoting Carroll v. United States,

(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,

(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,

(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

. 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."

. - 15 - 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

at 1050 (quoting Terry,

).

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

(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.

(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."

(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

(emphasis added).

Turning to the case's facts, Lott said that the

circumstances known to the officers before the search — e.g., the

- 16 - 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."

. But in

the next breath Lott stated that other "reasons fatally undercut"

the search's "validity."

. 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."

(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

.

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,

(citing Lott,

); Ivery,

(citing Lott,

-

84); United States v. Diaz,

(1st Cir. 2008) (citing

Ivery,

, and noting that Ivery discusses Lott,

); McGregor,

(citing Ivery, 427 F.3d

- 17 - at 72, and noting that Ivery discusses Lott,

).

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

(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

(emphases added

and citing Lott,

). From there, Ivery saw no

error with the judge's finding "that the officers testified

credibly" about their "actual[]" safety concerns.

(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-

- 18 - 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

. 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

. And they may do so

despite the special privacy involved with a house, see

,

and despite their having no safety "worrie[s]" — they could look

just as a precaution, see

at 337 & n.1 (Stevens, J.,

concurring). "This," Buie asserted, "is no more and no less than

was required in Terry and Long." See

.

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

. 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

- 19 - Amendment," Whren proclaimed — but the Court has "repeatedly held

and asserted the contrary."

(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

.

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

, 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

(2011) (emphases added and

quoting Whren,

). 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

- 20 - officials." See

, 736 (2011) (emphases added except

for "whatever," and first quoting Indianapolis v. Edmond,

(2000), then quoting Scott v. United States,

(1978), and then quoting Whren,

). 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

(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,

; "promot[ing] evenhanded, uniform

enforcement of the law," see

by avoiding "arbitrarily variable

protection" of constitutional rights, see Devenpeck v. Alford,

(2004); and "allow[ing] the police to determine in

advance whether the conduct contemplated will implicate the Fourth

Amendment," see Torres v. Madrid,

(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

- 21 - the officer is not plumbed." Bolton v. Taylor,

(1st

Cir. 2004) (citing Whren,

) (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,

(1st Cir.

2005), and United States v. Winston,

(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

n.8. This claim, Lawlor wrote, "miss[ed] the mark."

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.

And bowing to Whren,

Lawlor held that "an officer's subjective belief or intention is

irrelevant to Fourth Amendment analysis."

(emphasis added and

parenthetically discussing Whren,

).

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

(emphases added and citing

- 22 - Lawlor,

n.8, which in turn cited Whren,

). 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."

(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,

(emphases added and quoting Brigham City v. Stuart,

(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,

(2018) — we cannot see a good reason why

subjective fears should be relevant in protective searches of

autos. See generally Buie,

(extending Terry

and Long by letting officers with an objectively credible fear of

danger do a visual protective home sweep to minimize that danger).

- 23 - 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,

(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,

(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,

(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,

(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,

(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,

(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,

(4th Cir. 2013)

(Terry situation).

- 25 - • The reasonable-suspicion analysis "is an objective inquiry."

United States v. McCraney,

(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,

(10th Cir. 2011)

(Terry situation).4

All of this raises the unacceptable specter of Fourth Amendment

protections varying among jurisdictions, see al-Kidd,

(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,

(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,

(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,

(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,

(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

(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

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

(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

(second quote), 30 (first quote, emphasis added). But that is

exactly the kind of dive into objective reasonableness Buie

demands. See

. 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,

(1973), and

Caniglia v. Strom,

(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

(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,

(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."

(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,

n.5 (citing Gant,

, 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,

(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,

. 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,

(9th Cir. 1983), as the

two cases saying subjective motives count. See

.

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,

. 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,

(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,

(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 -