United States v. Gurule
Opinion of the Court
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
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.
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 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.
*1218He 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
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,
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, ___ U.S. ___,
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,
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 *1219that 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."
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, arrest, or investigation will not let people move around in ways that could jeopardize his safety." Brendlin v. California,
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,
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,
Given the circumstances the officers confronted in this case, these principles point towards an inescapable conclusion. So long as law enforcement 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,
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, ___ U.S. ___,
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,
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."
Most importantly, that exercise was, "in the words of the Rodriguez opinion, `fairly characterized as part of [law enforcement's] traffic mission.'"
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,
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,
At any rate, reasonable suspicion "is not, and is not meant to be, an *1221onerous standard." United States v. Pettit,
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,
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,
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.
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."
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, *1222the very fact that the officers asked repeatedly whether Gurule was carrying a weapon suggests contemporaneous concern that he was deceitful.
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., United States v. Manjarrez,
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
In this instance, the driver volunteered she was the subject of at least one out-standing warrant for theft. And the district court found-based on the 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."
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.
*1223III. Conclusion
For the reasons set forth above, we REVERSE the district court's decision granting Gurule's motion to suppress.
Video and audio body-camera footage from both officers was also included in the record. R. 136, 137.
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.
The district court also relied on an unpublished case, United States v. House,
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, , 1147 (10th Cir. 2010) (quoting United States v. White, , 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, , 1132 (10th Cir. 2005) (citing United States v. Sandoval, , 542 (10th Cir. 1994)).
Concurring Opinion
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.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellant, v. Tommy GURULE, Defendant-Appellee.
- Cited By
- 1 case
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- Published