United States v. Gurule

FILED
United States Court of Appeals
Tenth Circuit

July 11, 2019
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v. No. 18-4039
TOMMY GURULE,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:17-CR-00485-DS-1)

Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States
Attorney, with him on the briefs), Office of the United States Attorney, Salt Lake
City, Utah, for Appellant.

Daphne Oberg, Assistant Federal Public Defendant (Kathryn N. Nester, Federal
Public Defender, and Bretta Pirie, Assistant Federal Public Defender, with her on
the brief), Office of the Federal Public Defender, Salt Lake City, Utah, for
Appellee.

Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit
Judges.

TYMKOVICH, Chief Judge.
 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 18 U.S.C. § 922(g) as a felon in possession of a firearm. Gurule moved to

suppress both the pistol and his subsequent confession as the products of an

illegal search.

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.

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 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

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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. He 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

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 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, 657 F.3d 1040, 1044 (10th Cir. 2011)

(quoting United States v. Caro, 248 F.3d 1240, 1243 (10th Cir. 2001)). 1 But we

review de novo the district court’s legal conclusions, including “the ultimate

determination of reasonableness under the Fourth Amendment.” Id. (same).

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, 135 S. Ct. 1609, 1614

(2015). It is well-established that the “touchstone” of this inquiry “is always the

reasonableness in all the circumstances of the particular governmental invasion of

a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S. 106, 108–09

(1977) (citing Terry v. Ohio, 392 U.S. 1, 19 (1968)) (internal quotation marks

omitted). “Reasonableness” in this context will hinge “on a balance between the

public interest and the individual’s right to personal security free from arbitrary

1
Video and audio body-camera footage from both officers was also
included in the record. R. 136, 137.

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interference by law officers.” Id. at 109. (quoting United States v. Brignoni-

Ponce, 422 U.S. 873, 878 (1975)).

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. “Against this important interest,” courts must weigh “the intrusion into

the driver’s personal liberty . . . by the order to get out of the car.” Id. at 111.

Ultimately, the Court concluded this intrusion was “at most a mere inconvenience

[that] cannot prevail when balanced against legitimate concerns for the officer’s

safety.” Id.

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 that 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.” 519 U.S. 408, 413–14, 14–15 (1997).

For this reason, the Court concluded that “[t]he risk of harm to both the police

and the [vehicle’s] occupants is minimized if the officers routinely exercise

unquestioned command of the situation.” Id. at 414. (quoting Michigan v.

Summers, 452 U.S. 692, 702–03 (1981)).

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,

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arrest, or investigation will not let people move around in ways that could

jeopardize his safety.” Brendlin v. California, 551 U.S. 249, 258 (2007). Indeed,

the Court explained that no “sensible person” would “expect a police officer to

allow people to come and go freely from the physical focal point of an

investigation.” Id. at 257.

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, 555 U.S. 323, 333 (2009)

(citing Brendlin, 551 U.S. at 258).

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, 264 F.3d 1215, 1223 (10th Cir. 2001) (en

banc), or to exit the vehicle, depending upon the circumstances. United States v.

Dennison, 410 F.3d 1203, 1210–11 (10th Cir. 2005) (“[A]n officer making a

traffic stop may order both the driver and passengers to exit the vehicle pending

completion of the stop because the additional intrusion on the passenger is

minimal.” (citations and quotation marks omitted)).

Given the circumstances the officers confronted in this case, these

principles point towards an inescapable conclusion. So long as law enforcement

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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, 555 U.S. at 333. 2

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, 135

S. Ct. 1609 (2015)—Gurule argues the officers also unconstitutionally extended

the traffic stop as against the vehicle’s driver. In Rodriguez the Supreme Court

observed that “the tolerable duration of police inquiries in the traffic-stop context

is determined by the seizure’s ‘mission’—to address the traffic violation that

warranted the stop, and attend to related safety concerns.” Id. at 1614 (citations

omitted). Gurule contends the lead officer extended the permissible duration of

the stop by questioning the driver about the contents of her car.

2
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.

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 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, 848 F.3d 971, 974 (11th Cir.

2017), an officer learned during the course of a valid traffic stop “that [the driver]

did not have a driver’s license, so [he] could not legally operate the vehicle. In

an attempt to find someone who could, [the officer] asked [the passenger] if he

had a driver’s license.” Id. at 974. The passenger, like Gurule here, did not have

one either.

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.” Id. In finding no fault with the

encounter, the court held: “All of [law enforcement’s] actions were taken in the

lawful discharge of [its] duties, which included enforcement of the law requiring

that any person driving a vehicle be licensed to do so.” Id. (emphasis added).

Most importantly, that exercise was, “in the words of the Rodriguez

opinion, ‘fairly characterized as part of [law enforcement’s] traffic mission.’” Id.

(emphasis added). It was “after [law enforcement] discovered that neither man

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had a driver’s license, and while the continued detention was still lawful, that [the

officer] asked [the driver] for permission to search the vehicle.” Id. As the court

observed, efforts aimed at preventing unlicensed drivers “from driving off without

a license is lawful enforcement of the law, not unlawful detention.” Id. “What

prolonged the stop was not [law enforcement’s] desire to search the vehicle but

the fact that [the] occupants of it could not lawfully drive it away.” Id. at

974–75.

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, 890 F.3d 901, 905 (10th Cir. 2018). Within the

context of a traffic stop, this is true not only for the driver but also for any

passengers. Johnson, 555 U.S. at 332.

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, 751 F.3d 1139, 1142 (10th Cir. 2014). The primary

justification for a frisk, of course, is officer safety. Id. (citing Terry, 392 U.S. at

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27). We accordingly recognize the officer-safety rationale can overcome even

“limited specific information leading [law enforcement] to believe that an

individual was armed or dangerous.” Id. (quoting United States v. McRae, 81

F.3d 1528, 1536 (10th Cir. 1996)).

At any rate, reasonable suspicion “is not, and is not meant to be, an onerous

standard.” United States v. Pettit, 785 F.3d 1374, 1379 (10th Cir. 2015) (quoting

United States v. Kitchell, 653 F.3d 1206, 1219 (10th Cir. 2011)). It requires

“considerably less” than a preponderance of the evidence and “obviously less”

than probable cause. Id. (quoting United States v. Esquivel-Rios, 725 F.3d 1231,

1236 (10th Cir. 2013)). So long as officers develop “a particularized and

objective basis for suspecting an individual may be involved in criminal activity,

[they] may initiate an investigatory detention even if it is more likely than not that

the individual is not involved in any illegality.” Id. at 1379–80. (citing United

States v. Johnson, 364 F.3d 1185, 1194 (10th Cir. 2004)) (emphasis added).

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, 557 F.3d 1129, 1133 (10th Cir.

2009)). We evaluate each factor alleged to support an inference of reasonable

suspicion separately and in the aggregate. Id. at 1380. (citing United States v.

Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998)). Although individual

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factors—when analyzed separately—might admit of innocent explanation, we may

nonetheless hold they create reasonable suspicion in the aggregate. See id.

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, 629 F.3d 749, 753 (7th Cir. 2011) (observing “it is

irrelevant that” the officer “decided to frisk” the defendant “before directing him

to exit the car”). Thus, by the time the search had therefore begun, at least one

officer had seen the gun, such that both officers were justified in securing it for

the duration of the vehicle search. Garcia, 751 F.3d at 1141.

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.

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 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.” 434 U.S. at 112.

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, the very fact that

the officers asked repeatedly whether Gurule was carrying a weapon suggests

contemporaneous concern that he was deceitful. 3

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.,

3
The district court also relied on an unpublished case, United States v.
House, 463 F. App’x 783 (10th Cir. 1999), for the proposition that even actual
knowledge that a suspect was armed would not create reasonable suspicion that he
might be “armed and dangerous.” See R. 69. (emphases added). But we have
explicitly rejected the notion that officers must assess “armed” and “dangerous”
in disjunctive fashion: “[A]n officer’s suspicion that an individual is dangerous
can affect that officer’s suspicion that an individual is armed, and vice versa.”
Garcia, 751 F.3d at 1143 n.7.

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United States v. Manjarrez, 348 F.3d 881, 886–87 (10th Cir. 2003) (“The purpose

of the limited pat-down search is not to discover evidence of a crime, but to allow

the officer to pursue his investigation without fear of violence.”) (citations and

quotation marks omitted). Nor does the presence of an additional officer

necessarily vitiate this concern. See United States v. Fager, 811 F.3d 381, 389

(10th Cir. 2016) (“[I]f [the defendant] harbored a desire to use his weapon against

the officers, he may very well have used it regardless of whether the backup

officer was keeping an eye on him. . . .”).

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 id. (quoting Dennison, 410 F.3d at 1213). 4

In this instance, the driver volunteered she was the subject of at least one

outstanding warrant for theft. And the district court found—based on the

4
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, 609 F.3d 1140, 1147 (10th Cir. 2010) (quoting United States v.
White, 584 F.3d 935, 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, 403 F.3d
1120, 1132 (10th Cir. 2005) (citing United States v. Sandoval, 29 F.3d 537, 542
(10th Cir. 1994)).

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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.” 364 F.3d at 1193. The stop transpired at night,

(10:30 PM), and the government emphasizes both the darkness of the gas-station

parking lot, as well as the proximity of a darkened field just beyond where the

vehicles had stopped. In addition, one officer observed that the general area

“regularly sees a high volume of drug activity as well as property crimes[,]

including stolen vehicles.” R. 108–09.

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.

III. Conclusion

For the reasons set forth above, we REVERSE the district court’s decision

granting Gurule’s motion to suppress.

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United States v. Gurule, No. 18-4039, Bacharach, J., concurring.

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. Id. at 9–10. Given

Mr. Gurule’s forfeiture, I would decline to say how we would decide the

merits. I otherwise agree with the majority opinion.