FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-10205
Plaintiff-Appellee, D.C. No.
v. CR-04-00241-JAT
LIONEL MENDEZ, ORDER AND
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted
February 16, 2006—San Francisco, California
Filed February 23, 2007
Before: Stephen Reinhardt, Richard A. Paez, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Reinhardt
2083
UNITED STATES v. MENDEZ 2085
COUNSEL
Jon M. Sands & Michael D. Gordon, Federal Public
Defender, Phoenix, Arizona, for the defendant-appellant.
Paul K. Charlton, John Joseph Tuchi & Bill C. Solomon,
United States Attorney, Phoenix, Arizona, for the plaintiff-
appellee.
ORDER
The majority opinion and dissent, filed October 30, 2006,
are hereby withdrawn. The superseding opinion will be filed
concurrently with this order. Further petitions for rehearing or
rehearing en banc may be filed.
OPINION
REINHARDT, Circuit Judge:
Lionel Mendez was pulled over by two police officers for
failure to display a visible license plate or registration tag. He
2086 UNITED STATES v. MENDEZ
was asked to exit the car, patted down for weapons and told
to sit on the curb behind the vehicle while a records check
was conducted. In response to questioning about matters unre-
lated to the purpose of the traffic stop, Mendez told the offi-
cers that he was a felon and that there was a gun in the
vehicle, at which point they arrested him, searched the car and
found the gun. After the district court denied his motion to
suppress the evidence, Mendez entered a conditional plea of
guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). The only issue on appeal is whether
the district court erred when it denied his motion to suppress.
We conclude that it did not.
I. FACTUAL AND PROCEDURAL HISTORY1
At approximately 9:18 p.m. on December 21, 2003, two
Phoenix gang enforcement officers pulled over a car driven
by Mendez because it did not appear to have a license plate
or temporary registration tag. Both officers testified that the
sole purpose of the stop was “no registration.” The officers,
Detectives Jaensson and Bracke, approached the car. Det.
Jaensson told Mendez why they had stopped him and asked
for “his identification or license.” Mendez presented a Cali-
fornia identification card. Det. Jaensson then instructed him to
get out of the vehicle and interlock his hands behind his head.
He proceeded to pat him down for weapons, during which
time he noticed a tattoo on Mendez’s left hand. The pat-down
produced no weapons. Det. Jaensson then instructed Mendez
to sit on the curb behind his car.
Det. Jaensson stayed with Mendez at the curb while Det.
Bracke took the identification card to the patrol car to conduct
a records check. While waiting for Det. Bracke to complete
the records check, Det. Jaensson again noticed the tattoo on
1
Our recitation of the facts is based primarily on the testimony adduced
at the suppression hearing. Detectives Jaensson and Bracke testified;
Mendez did not.
UNITED STATES v. MENDEZ 2087
Mendez’s left hand and recognized it as a gang-affiliated
insignia. Prompted by the gang tattoo, he asked Mendez sev-
eral questions, beginning with “Where are you from?”
According to Det. Jaensson, Mendez responded that he was
“from the Latin Kings,” a gang located in Chicago. Det. Jaen-
sson testified that he next asked Mendez about his other tat-
toos. In response to one of Det. Jaensson’s questions, Mendez
said that he had left the Latin Kings “in good standing,” and
had moved to Arizona “to get away from all that, to turn his
life around.”
While Det. Jaensson was questioning Mendez, Det. Bracke
was at the patrol car conducting a records check, using the
car’s Mobile Data Terminal (“MDT”).2 At this time, he
noticed in the rear window of Mendez’s vehicle a temporary
registration plate that had expired eight days earlier on
December 13th.
After completing the records check, which revealed that
Mendez had a valid driver’s license and no outstanding war-
rants, Det. Bracke returned to the curb with the intention of
informing him that the temporary registration plate in his rear
window had expired. While returning, Bracke overheard
Mendez telling Det. Jaensson that he had come to Arizona
“trying to get away from the gang life.” Det. Bracke also
overhead him say that he had spent time in prison in Illinois.
Upon approaching the curb, Det. Bracke asked Mendez why
he had been imprisoned. Mendez replied that he had been
convicted of a weapons violation. Det. Bracke then asked
whether he had any weapons in the car. According to the two
detectives, Mendez became agitated, told them that he was a
good father and was trying to make a good life for himself in
Arizona. He then added that there was a firearm in the driv-
er’s door handle. At this point, the officers arrested him. Det.
Bracke then searched the vehicle and found a loaded, small
2
The MDT is the computer in the patrol car that the officers use to con-
duct records checks.
2088 UNITED STATES v. MENDEZ
caliber, semi-automatic pistol in the driver’s side armrest. The
entire encounter up to the time of the arrest and search took
approximately eight minutes.
Mendez was indicted on charges of violating 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (felon in possession of a firearm).
He moved to suppress the handgun, arguing that the officers
improperly interrogated him about matters unrelated to the
traffic stop and failed to diligently investigate the purpose of
the stop. The district court denied the motion, finding that the
detectives “identified specific, objective factors sufficient to
permit them to expand the scope of questioning” and did not
unreasonably prolong the stop. Mendez subsequently entered
a conditional guilty plea, preserving his right to appeal the
court’s ruling on the suppression motion. The district court
sentenced him to fifty-seven months in prison. He appeals.
II. DISCUSSION
Mendez does not contest the legality of the initial traffic
stop. Instead, he argues that the officers’ unrelated question-
ing and the purported extended detention violated his Fourth
Amendment rights because (1) the officers did not observe
additional particularized, objective factors sufficient to create
reasonable suspicion to justify interrogating him about mat-
ters beyond the purpose of the stop, and (2) the officers unrea-
sonably prolonged the stop.3
[1] We agree with the district court that the stop was not
unnecessarily prolonged. Det. Jaensson’s questioning
occurred while Det. Bracke was running a check on Mendez’s
identification. It could not have expanded the duration of the
stop since the stop would, in any event, have lasted until after
the check had been completed. See Berkemer v. McCarty, 468
3
Mendez also claims that the officers’ questioning violated Arizona law.
However, Mendez forfeited his state law claim by failing to raise it before
the district court in his motion to suppress.
UNITED STATES v. MENDEZ 2089
U.S. 420, 437 (1984) (stating that a records check is an
expected part of a traffic stop). Having overheard Mendez’s
answer to Det. Jaensson as he was returning to his vehicle,
Det. Bracke immediately asked his two questions. The arrest
occurred only eight minutes after the stop.
Mendez further argues that the officers were not diligently
investigating the traffic violation because the officers did not
run a check on his car’s vehicle identification or its registra-
tion until after he had been arrested. However, the district
court’s factual determination that the officers were diligently
pursuing the purpose of the traffic stop was not clearly errone-
ous. The record suggests that, until Mendez told the officers
about his prison record and his possession of a weapon, Det.
Bracke may have intended to let him go with a warning about
his expired temporary registration plate and, thus, may have
seen no need to check his registration or vehicle registration
number further.
[2] Mendez’s primary argument, that the officers lacked
reasonable suspicion to support their questioning, is “prem-
ised on the assumption that the officers were required to have
independent reasonable suspicion in order to question [him]
. . . because the questioning constituted a discrete Fourth
Amendment event.” Muehler v. Mena, 544 U.S. 93, 100-01
(2005). In making this claim, Mendez understandably relied
on our precedent holding that, during a traffic stop, a police
officer may only “ask questions that are reasonably related in
scope to the justification for his initiation of contact” and may
expand the scope of questioning beyond the initial purpose of
the stop only if he “articulate[s] suspicious factors that are
particularized and objective.” United States v. Murillo, 255
F.3d 1169, 1174 (9th Cir. 2001); see also United States v.
Chavez-Valenzuela, 268 F.3d 719, 724 (9th Cir. 2001) (“An
officer must initially restrict the questions he asks during a
stop to those that are reasonably related to the justification for
the stop.”); United States v. Perez, 37 F.3d 510, 513 (9th Cir.
1994). The Supreme Court, however, recently decided in
2090 UNITED STATES v. MENDEZ
Muehler, that “mere police questioning does not constitute a
seizure” unless it prolongs the detention of the individual,
and, thus, no reasonable suspicion is required to justify ques-
tioning that does not prolong the stop. Muehler, 544 U.S. at
101 (internal quotation marks omitted). Although Muehler
involved an interrogation during a search of a building, and
made no mention of our precedent regarding questioning dur-
ing traffic stops, its reasoning is equally applicable in the traf-
fic stop context. See id. (noting that in Illinois v. Caballes,
543 U.S. 405, 408 (2005), it “rejected the notion that the shift
in purpose from a lawful traffic stop into a drug investigation
was unlawful because it was not supported by any reasonable
suspicion.” (internal quotation marks omitted)). To the extent
that Chavez-Valenzuela, Murillo, and Perez hold that such
questioning must be supported by separate reasonable suspi-
cion, they have been overruled by Muehler. See Miller v.
Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (holding that
a three-judge panel may depart from Circuit precedent that
has not “been expressly overruled by an en banc court” when
an intervening decision by the Supreme Court or en banc
court has “undercut the theory or reasoning underlying the
prior circuit precedent in such a way that the cases are clearly
irreconcilable”). Thus, because we conclude that the officers’
questioning did not prolong the stop, we are compelled to
hold that the expanded questioning need not have been sup-
ported by separate reasonable suspicion.
III. CONCLUSION
We hold that the officers’ questioning of Mendez did not
extend the duration of a lawful stop. For this reason, we also
hold that the expanded questioning need not have been sup-
ported by separate reasonable suspicion.
AFFIRMED.