FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30254
Plaintiff-Appellee, D.C. No.
v. 3:10-cr-05038-
JOSHUA TIMOTHY RODGERS, RJB-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted
May 3, 2011—Seattle, Washington
Filed September 7, 2011
Before: Mary M. Schroeder, M. Margaret McKeown, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge McKeown;
Dissent by Judge Callahan
17001
17004 UNITED STATES v. RODGERS
COUNSEL
Mary Anne Royle (argued), Vancouver, Washington, for the
defendant-appellant.
Jenny A. Durkan, United States Attorney, and Jill Otake
(argued), Assistant United States Attorney, U.S. Attorney’s
Office, Seattle, Washington, for the plaintiff-appellee.
OPINION
McKEOWN, Circuit Judge:
Passenger and vehicle searches have played a prominent
role in Fourth Amendment jurisprudence. The Supreme Court
has consistently held that probable cause is necessary to con-
duct a warrantless search of a vehicle. See Carroll v. United
States, 267 U.S. 132, 160-62 (1925); California v. Carney,
471 U.S. 386, 390 (1985). In recent years, the Court has clari-
fied that “[i]f there is probable cause to believe a vehicle con-
tains evidence of criminal activity,” the search may extend to
any area where evidence might be found. See Arizona v. Gant,
129 S. Ct. 1710, 1721 (2009) (citing United States v. Ross,
456 U.S. 798, 820-21 (1982)). In addition, when an arrest is
made, a warrantless search is permitted “if the arrestee is
within reaching distance of the passenger compartment . . . or
it is reasonable to believe the vehicle contains evidence of the
offense of arrest.” Id. at 1723. But the Court has never sanc-
tioned a vehicle search simply because there was probable
UNITED STATES v. RODGERS 17005
cause to arrest a passenger or because a passenger could not
provide identification. The Fourth Amendment requires more.
BACKGROUND
The facts in this appeal are not in dispute. On December
16, 2009, at approximately 3:30 a.m., Police Officer Ryan
Moody was patrolling the area of South 84th Street and South
Hosmer Street in Lakewood, Washington, a high crime loca-
tion known for juvenile prostitution and vehicle theft. During
the course of his duties, Moody performed random license
plate checks on passing vehicles, “[l]ooking for warrants, sus-
pended drivers, [and] stolen vehicles.”1 Moody ran a routine
check on a black Pontiac Grand Am. The registration record
indicated that the car was registered to an individual named
Joshua Rodgers. Moody noticed, however, that “the colors
didn’t match”: the registration listed the car as gold, but the
car observed by Moody was black. Moody testified that he
often encountered license plates that had been removed from
one vehicle and placed on a stolen vehicle of the same make
and model to conceal a car’s stolen status.2 Thus, suspecting
that the car might be stolen, Moody stopped the vehicle and
approached on foot.
Upon reaching the driver’s side of the car, Moody immedi-
ately recognized Rodgers from two prior traffic stops.3 Rod-
gers was cooperative and explained that he had painted his
vehicle but did not have money to update his registration.
Rodgers provided Moody with a valid driver’s license, which
1
The quotations used throughout this section are taken from Moody’s
testimony before the district court. Moody was the only witness to appear,
and the district court adopted his testimony as the court’s findings of fact.
2
The parties agree that the failure to update a vehicle’s registration after
it has been painted is not a citable offense under local or state law.
3
In fact, Moody previously stopped Rodgers’ vehicle for the exact same
reason—the discrepancy between the color listed on the registration and
the car’s physical appearance.
17006 UNITED STATES v. RODGERS
confirmed that he owned the car. Moody also checked to
make sure that the vehicle identification number listed on the
registration record matched the number on Rodgers’ vehicle.
At some point during the stop, Moody looked into Rodgers’
car and noticed a young female in the front passenger seat.
The young woman “appeared to be Caucasian” and “seemed
nervous, didn’t want to make eye contact.” Based on her
appearance, Moody thought that the girl was twelve to four-
teen years old. Recalling that Rodgers was 51 years old
according to his license, Moody asked Rodgers about the
young woman. Rodgers responded that she was simply a
friend and that he was giving her a ride to a nearby apartment
complex. This scenario “obviously raised [Moody’s] suspi-
cion more, being that he’s a 51-year-old male, and the way
she appeared [ ] was a 12-to-14-year-old female.” Given the
time of day and the high-crime location, Moody’s “first incli-
nation was that she was probably an underage prostitute.”
Moody also had concerns that the young woman “could have
been a run-away” or “a missing person.”
Suspecting that Rodgers might be “pimping out the
female,” Moody continued to investigate and asked the young
woman for identification. The young woman responded that
she “didn’t have any” ID, but she provided her name, S.F.,4
and indicated that she was 19 years old. S.F. stated that her
birthday was January 7, 1990, which was consistent with her
stated age of 19 years old. Based on her physical appearance,
however, Moody believed that S.F. was lying about her age.
He went back to his police car to run a check on the name
provided by S.F. and discovered that there was an outstanding
arrest warrant on a felony robbery charge for an individual
with the same name and month and day of birth that S.F. pro-
vided. The birth year listed, however, was 1993. Moody
thought the woman in the car was “possibly” the same person
4
Because S.F. is a juvenile, her initials have been used throughout these
proceedings to protect her identity.
UNITED STATES v. RODGERS 17007
named on the warrant, but he still had doubts. Moody testified
that in his experience, people sometimes “provide fake or
false names and, to their surprise, the name that they provided
has a warrant for their arrest.” Moody requested that another
officer respond to the scene. When backup arrived, Moody
removed Rodgers and S.F. from the vehicle and separated
them to further investigate S.F.’s identity and her relationship
to Rodgers. Neither Rodgers nor S.F. was placed in hand-
cuffs, and Moody never testified that he had any concerns for
his safety. Once outside the car, Rodgers claimed that he had
just met S.F. and that a friend of his asked him to give her a
ride.
Moody testified that S.F.’s identity was still not clear to
him, so “based on the fact that [he] felt she lied to [him], pro-
vided a false statement to [him], [he] wanted to check to see
if she had any ID that [he] could actually confirm her identity
with.” S.F. had previously indicated that she “didn’t have
any” identification, and Moody did not see a purse or bag that
could harbor S.F.’s identification. Moody testified, however,
that he believed S.F. had identification because “if she’s
going to stick with a story about being 19 years old,” based
on his training and experience, Moody thought “most 19-
year-olds have some form of identification.” Notably, Moody
did not perform a search of S.F.’s person. While S.F. was
secured by another officer at the rear of the vehicle, however,
Moody proceeded to search the passenger area of Rodgers’
car.
Moody never found any identification. In the center con-
sole of the car, however, Moody located a black case contain-
ing three bags of a crystalline substance later identified as
methamphetamine. The officers placed Rodgers under arrest.
A search of Rodgers’ person uncovered marijuana, twenty
oxycodone pills, and 284 dollars in cash. A full search of
Rodgers’ car led to the discovery of a firearm, used metham-
phetamine pipes, and what appeared to be a ledger. Rodgers
was taken to the Pierce County Jail, where he admitted to sell-
17008 UNITED STATES v. RODGERS
ing narcotics. S.F. was arrested, taken to a juvenile facility,
and booked on the robbery warrant.
A grand jury returned an indictment charging Rodgers with
possession of methamphetamine and oxycodone with intent to
distribute in violation of 21 U.S.C. § 841, with being a felon
in possession of a firearm and an armed career criminal in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and with
possession of a firearm during the commission of a drug traf-
ficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Rod-
gers filed a motion to suppress the physical evidence obtained
from his person and vehicle as well as the statements he made
to the police after his arrest. The district court held an eviden-
tiary hearing, during which Moody was the only witness to
testify. In adopting Moody’s testimony as its findings of fact,
the court credited Moody as “entirely believable.” Although
clear in its praise for Moody, the district court’s oral ruling
was less specific on other findings. Despite denying Rodgers’
motion to suppress and upholding the search, the court never
made any specific finding that the search of Rodgers’ car was
supported by probable cause or any other level of particular-
ized suspicion. Rodgers stipulated to a bench trial, and the
court convicted him on all counts. Rodgers appeals the denial
of his suppression motion, arguing that the initial stop, the
extended duration of the seizure, and the search of his vehicle
all violated the Fourth Amendment. We review de novo the
district court’s denial of the motion to suppress, but review
the court’s underlying findings of fact for clear error. See
United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir.
2010); United States v. Turvin, 517 F.3d 1097, 1099 (9th Cir.
2008).
ANALYSIS
A. The Investigatory Stop
[1] The standards that govern investigatory traffic stops are
well known. Police may stop a car to investigate individuals
UNITED STATES v. RODGERS 17009
only where there is “reasonable suspicion” of illegal activity.
See United States v. Montero-Camargo, 208 F.3d 1122, 1129
(9th Cir. 2000) (en banc); see also Terry v. Ohio, 392 U.S. 1
(1968). Here, Moody relied on two independent factors to jus-
tify stopping Rodgers’ car: the color discrepancy between the
car’s registration record and the vehicle’s physical appearance
and Rodgers’ presence in a high-crime area. Rodgers con-
tends that these two objective observations indicate entirely
innocuous conduct and thus cannot give rise to reasonable
suspicion.
[2] We agree that the color discrepancy and high-crime
location, even when considered cumulatively, at best provide
a thin basis for reasonable suspicion that the car was stolen.
The failure to update a vehicle registration to reflect that a car
has been painted is not a citable offense under state or local
law; it is also, of course, not illegal to drive in a high-crime
area. Nevertheless, whether Moody had reasonable suspicion
to stop Rodgers’ vehicle is an exceedingly close question that
we need not answer here. Because we reverse the district
court’s denial of Rodgers’ suppression motion on a separate
ground, we will assume, without deciding, that reasonable
suspicion supported the stop.
B. The Continuing Investigation
[3] Next, Rodgers challenges the duration of the stop,
arguing that even if the initial stop was constitutionally sound,
Moody impermissibly extended its scope and duration. We
disagree. A “period of detention [may be] permissibly
extended [where] new grounds for suspicion of criminal activ-
ity continue[ ] to unfold.” United States v. Mayo, 394 F.3d
1271, 1276 (9th Cir. 2005).
[4] Throughout the stop the situation was evolving, and
new particularized factors arose that supported the continued
detention of both Rodgers and S.F. As the district court
observed, Moody obtained bits and pieces of suspicious infor-
17010 UNITED STATES v. RODGERS
mation over time that required additional investigation.
Moody initially observed an extremely young woman in the
car with Rodgers, a fifty-one-year-old male, at 3:30 in the
morning, in an area known for juvenile prostitution. Based on
the late hour and the stark differences in age, Moody appro-
priately continued to investigate the situation by asking a lim-
ited number of questions to both Rodgers and S.F. Rodgers’
explanation—that S.F. was a friend who needed a ride—failed
to dispel Moody’s suspicion given the late hour. S.F.’s state-
ments about her age, which did not appear consistent with her
appearance, also raised a red flag. See, e.g., United States v.
Torres-Sanchez, 83 F.3d 1123, 1128 (9th Cir. 1996) (holding
that continued detention was justified where the defendants’
answers “failed to dispel [the officer’s] suspicions about ille-
gal activity and actually created new ones”).
[5] Once Moody discovered the outstanding arrest warrant
for S.F., his suspicions escalated further because he now had
additional information to suggest that S.F. had lied about her
identity. Although Moody could have arrested S.F. at that
time and released Rodgers, Moody had ongoing, legitimate
suspicions that Rodgers was engaged in ongoing criminal
activity, particularly juvenile prostitution. Because “new
grounds for suspicion of criminal activity continued to
unfold,” the extended duration of the stop was permissible.
Mayo, 394 F.3d at 1276.
C. The Vehicle Search
[6] We turn next to the search of Rodgers’ car, which is the
crux of this appeal. The Government acknowledges that prob-
able cause was necessary to support the search, and asks us
to rely on the automobile exception to the warrant require-
ment as addressed by the Supreme Court in United States v.
Ross, 456 U.S. 798, 820-22 (1982).5 “Under the automobile
5
In its briefing and at oral argument, the Government relied exclusively
on Ross, 456 U.S. at 820-22, and argued that probable cause, not some less
UNITED STATES v. RODGERS 17011
exception . . . , police may conduct a warrantless search of a
vehicle if there is probable cause to believe that the vehicle
contains evidence of a crime.” United States v. Brooks, 610
F.3d 1186, 1193 (9th Cir. 2010). “Probable cause exists when,
under the totality of the circumstances, ‘there is a fair proba-
bility that contraband or evidence of a crime will be found in
a particular place.’ ” United States v. Luong, 470 F.3d 898,
902 (9th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)).
[7] The Government asserts that Moody had probable
cause to believe that S.F. committed two misdemeanor
offenses under Washington law: obstructing a law enforce-
ment officer in violation of Wash. Rev. Code § 9A.76.020,
demanding standard, was needed to justify the search of Rodgers’ vehicle.
At argument, the Government expressly acknowledged that it was not
relying on Arizona v. Gant, 129 S. Ct. 1710 (2009), and the search inci-
dent to arrest exception to the warrant requirement, which appears to
require a level of suspicion less than probable cause, see United States v.
Vinton, 594 F.3d 14, 25 (D.C. Cir. 2010) (“Presumably, the ‘reasonable to
believe’ standard requires less than probable cause, because otherwise
Gant’s evidentiary rationale would merely duplicate the ‘automobile
exception,’ which the Court specifically identified as a distinct exception
to the warrant requirement.”). Although the Government’s rationale is
hardly clear—was it bench marking probable cause against the outstand-
ing warrant?—in the end it doesn’t matter because the Government did not
preserve the issue. See United States v. Ewing, 638 F.3d 1226,1229-30
(9th Cir. 2011) (holding that the government, as appellee, waived any
argument with respect to the district court’s ruling on defendant’s standing
to challenge the search of his vehicle because the issue was not argued in
the government’s briefs); see also Arizona v. Hicks, 480 U.S. 321, 326 &
n.* (1987) (because the state decided to concede, possibly erroneously,
that police only had reasonable suspicion, not probable cause, to search,
the Court determined that the issue was not preserved and adopted the
state’s concession on that legal question). In addition, as a warrantless
search, the Government bears the burden of proving that a “specifically
established exception[ ] to the warrant requirement” applies. United States
v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001) (internal quotation marks
omitted). It is not our role to engineer a path for the Government to meet
that burden, especially where it has conceded that it is not relying on a cer-
tain exception to the warrant requirement.
17012 UNITED STATES v. RODGERS
and making a false or misleading statement to a public ser-
vant, in violation of Wash. Rev. Code § 9A.76.175. The Gov-
ernment apparently assumes that because probable cause
existed to arrest S.F. (that is, probable cause existed to believe
S.F committed a crime) it follows a fortiori that Moody had
probable cause to search the vehicle for evidence of that
crime.
This approach, however, elides an important distinction
between probable cause to search and probable cause to
arrest. In United States v. Henderson, we explained that
[t]he focus of the arrest inquiry is different from that
of the search inquiry. See Greene v. Reeves, 80 F.3d
1101, 1106 (6th Cir. 1996). Officers have probable
cause for an arrest if at the time of the arrest, “the
facts and circumstances within their knowledge and
of which they [have] reasonably trustworthy infor-
mation [are] sufficient to warrant a prudent man in
believing” that the defendant committed an offense.
Hunter v. Bryant, 502 U.S. 224, 228 (1991) (citing
Beck v. Ohio, 379 U.S. 89, 91 (1964)). Officers have
probable cause for a search when “the known facts
and circumstances are sufficient to warrant a man of
reasonable prudence in the belief that contraband or
evidence of a crime will be found.” Ornelas v.
United States, 517 U.S. 690, 696 (1996). “[T]here
may be probable cause to search without probable
cause to arrest, and vice-versa.” Id. (citing 2 Wayne
R. LaFave, Search & Seizure: A Treatise on the
Fourth Amendment § 3.1 (b) at 9 (3d ed. 1996)).
241 F.3d 638, 647-48 (9th Cir. 2000).
Both the Supreme Court and this court have highlighted
this distinction. See, e.g., Zurcher v. Stanford Daily, 436 U.S.
547, 556 (1978) (“The critical element in a reasonable search
is not that the owner of the property is suspected of crime but
UNITED STATES v. RODGERS 17013
that there is reasonable cause to believe that the specific
‘things’ to be searched for and seized are located on the prop-
erty to which entry is sought.”); United States v. O’Connor,
658 F.2d 688, 693 n.7 (9th Cir. 1981) (“Probable cause to
arrest concerns the guilt of the arrestee, whereas probable
cause to search an item concerns the connection of the items
sought with the crime and the present location of the items.”);
Millender v. County of Los Angeles, 620 F.3d 1016, 1029 n.6
(9th Cir. 2010) (en banc).
[8] The relevant question with respect to the search is
whether there was “probable cause to believe that the vehicle
contain[ed] evidence of a crime.” Brooks, 610 F.3d at 1193.
We conclude that there was not. A finding of probable cause
must be supported by the objective facts known to the officer
at the time of the search. See Illinois v. Rodriguez, 497 U.S.
177, 188 (1990) (the “factual determinations bearing upon
search and seizure . . . must be judged against an objective
standard” based on “the facts available to the officer at the
moment” (internal quotation marks omitted)). The inquiry is
a particularized one, requiring factual specificity that “evi-
dence of a crime will be found in a particular place.” Gates,
462 U.S. at 238; see also United States v. Struckman, 603
F.3d 731, 739 (9th Cir. 2010). Police “obtain probable cause
because the facts indicate that they will find what they are
looking for in the place to be searched.” United States v.
Johnson, 256 F.3d 895, 906 (9th Cir. 2001) (en banc) (empha-
sis added) (Ferguson, J., writing for a majority on this issue).
What is missing in the search of Rodgers’ vehicle for S.F.’s
identification is any specific particularized fact indicating that
S.F. had identification and that such identification was located
in Rodgers’ car. Although Moody testified extensively about
the facts that he relied upon to justify the extended investiga-
tion of Rodgers and S.F.—the late hour, the high-crime area,
the suspicious relationship between the two, the evasive
answers to questions, the arrest warrant, and S.F.’s false
statement—none of these facts are probative of whether there
17014 UNITED STATES v. RODGERS
was “probable cause to believe that the vehicle contain[ed]
evidence of a crime.” Brooks, 610 F.3d at 1193.
[9] Despite his detailed testimony, Moody did not identify
any particular facts or observations that led him to believe
S.F. had identification and that it was inside Rodgers’ car.
Nor can we find any such facts in the record. There is, for
example, no indication that Moody saw S.F. trying to hide
anything in the car, that S.F. was eyeing anything inside the
car, that S.F. made any furtive movements, or that any papers
or objects appearing to be identification were in plain view.
Indeed, the only relevant fact Moody offered—that he never
saw a purse or bag that might have contained S.F.’s
identification—cuts against a finding of probable cause to
search the car.
[10] When asked during the suppression hearing why he
had reason to believe that S.F. “might have identification,”
Moody’s only response was baffling: “Well, if she’s going to
stick with a story about being 19 years old, I know that, based
on my training an experience, most 19-year-olds have some
form of identification.” But it is undisputed that Moody did
not think S.F. was 19 years old and that she was the passen-
ger, not the driver. Moody’s entire extended investigation was
predicated on his suspicion that S.F. was much younger. The
Government nonetheless expects us to hold that Moody’s reli-
ance on the veracity of the lie—that S.F. was 19 years old—
was somehow reasonable, despite Moody’s belief to the con-
trary. This approach turns the objective facts standard on its
head—a known lie can hardly be an objective fact. Even if we
were to accept the lie as a half-truth, Moody’s rationale is
nothing more than a half-baked hunch, and it is well-
established “that ‘hunches’ are insufficient to establish rea-
sonable suspicion, let alone probable cause.” Johnson, 256
F.3d at 905 (quoting Illinois v. Wardlow, 528 U.S. 119, 123-
UNITED STATES v. RODGERS 17015
24 (2000)). Notably, Moody was never asked what led him to
believe the identification was actually within Rodgers’ car.6
As an alternative rationale, the Government offers that it
was reasonable for Moody to assume that S.F. had identifica-
tion because individuals in Washington can obtain a driver’s
license at sixteen. This backtracking does not fix the gap.
Nothing in the record supports such a rationale. Moody, in
fact, thought S.F. was twelve or fourteen, well below the driv-
ing age, and Washington law certainly does not require pas-
sengers to carry identification.7 State v. Barwick, 833 P.2d
421, 423 (Wash. Ct. App. 1992), abrogated on other grounds
6
The dissent would uphold the search on one of two widely divergent
theories. Either S.F., pretending to be nineteen would have hidden a fake
ID in Rodgers’ car, or “she may have hidden real identification, such as
a YMCA [or Associated Student Body] card, which might reflect that she
was not, in fact, nineteen.” Dissent at 17020. Either of these scenarios are
possible, but neither is probable and neither is supported by any facts in
the record. (Do Associated Student Body cards even exist anymore? Does
a YMCA card even contain an individual’s age? Library cards certainly
don’t.).
The dissent is predicated on “mights.” But the Fourth Amendment does
not allow us to uphold a search based on imagined circumstances drawn
out of thin air ex post. It requires factual specificity based on the objective
facts known to the officer at the time of the search. All Moody knew that
night was that S.F. had likely lied about her age. Every other assumption
the dissent relies upon to support the search—S.F. could have lied about
having identification, she could have had a fake ID or YMCA card that
could have had her real age on it, and she could have stashed identification
in Rodgers’ car—is nothing more than a hunch crafted in hindsight.
7
We note that the Fourth Amendment does not prevent police from
“ask[ing] people who have legitimately been stopped for identification.”
United States v. Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir. 2007).
Nor is it impermissible for police to arrest an individual for failure to
properly identify herself or produce identification if such conduct violates
state law. See Hiibel v. Sixth Judicial Dist. Court. of Nev., Humboldt
County, 542 U.S. 177, 187-88 (2004). But the Fourth Amendment does
not permit the search of a car for a passenger’s identification where state
law does not require passengers to carry identification and there is no basis
in the record to believe that the identification is located inside the car.
17016 UNITED STATES v. RODGERS
by State v. Cole, 871 P.2d 656, 658 (Wash. Ct. App. 1994).
But, more importantly, an assumption that most sixteen-year-
old passengers have identification does not lead to probable
cause to search every car carrying a teenager absent some
individualized suspicion regarding the teenager, the vehicle in
question, and the crime at issue.
[11] Without any objective facts indicating that S.F.’s
identification was in Rodgers’ car, we cannot endorse the sig-
nificant intrusion of the search.8 “The Supreme Court has
emphasized that probable cause ‘demands’ factual ‘specific-
ity’ and ‘must be judged according to an objective stan-
dard.’ ” Johnson, 256 F.3d at 905 (quoting Terry, 392 U.S. at
21-22 n.18)). The search was unconstitutional. All the physi-
cal evidence seized and Rodgers’ subsequent statements to
police must be suppressed under the exclusionary rule. See
Wong Sun v. United States, 371 U.S. 471, 485 (1963); United
States v. Crawford, 372 F.3d 1048, 1054 (9th Cir. 2004) (en
banc).
REVERSED AND REMANDED.
8
We acknowledge the difficult circumstances police officers face in
making quick judgments and are wary of overanalyzing their investigative
methods, especially when a child’s life could be in danger. But nothing
about the search here addresses that concern. The search of the vehicle for
S.F.’s identification as a means to protect S.F. seems superfluous at best.
Police already had more than enough evidence to arrest S.F. and take her
into custody. Moody knew of the outstanding warrant and had reason to
believe S.F. committed new crimes based on her false statements. As it
turned out, police never recovered any identification, and yet they still
arrested S.F. on the warrant. In addition, there is no indication police
searched S.F.’s person, the most likely place to find identification, before
searching Rodgers’ car. It is difficult to justify the serious invasion of
Rodgers’ privacy in search of evidence that bore no relationship to con-
cerns about S.F.
UNITED STATES v. RODGERS 17017
CALLAHAN, Circuit Judge, dissenting:
The police acted admirably, reasonably, and lawfully
throughout the events giving rise to this case. Accordingly, I
respectfully dissent.
The initial stop of the car was lawful. Officer Moody testi-
fied that there was a stark difference between the color listed
on the car registration records and the actual color of the car.
Officer Moody, an experienced police officer, thought this
discrepancy to be suggestive that the car was stolen. Further,
the stop was made at 3:30 a.m., in a high-crime area that had
a prevalence of car thefts. These factors were more than suffi-
cient to support a finding of reasonable suspicion. See United
States v. Malone, 886 F.2d 1162, 1165 (9th Cir. 1989)
(“Wholly lawful conduct may justify a reasonable suspicion
of criminal activity.”) (internal citation omitted).
For a search to be lawful under United States v. Ross, 456
U.S. 798 (1982), there must be “probable cause to believe that
contraband [or evidence] is concealed somewhere within” the
car. Id. at 800. As the majority notes, probable cause to search
is evaluated in light of the totality of the circumstances.
United States v. Pinela-Hernandez, 262 F.3d 974, 978 (9th
Cir. 2001). Thus, context is key. Here, when the search is con-
sidered in context, it was supported by probable cause, and
thus justified under Ross.
In the wee hours of the morning and in a high crime area
known for juvenile prostitution, Officer Moody had stopped
Rodgers, a man in his fifties who was driving a young girl.
The girl appeared to be only twelve or fourteen years old, and
she was “nervous” and “didn’t want to make eye contact.”
She told Officer Moody that she did not have any identifica-
tion. Meanwhile, the older man told Officer Moody that the
girl was “a friend” of his, which — under the circumstances
— aroused Officer Moody’s suspicions. Understandably,
Officer Moody was concerned that the girl was an underage
17018 UNITED STATES v. RODGERS
prostitute and the man was “pimping [her] out,” or that the
girl was a runaway or a missing person. He simply did not
know. So, he continued to investigate.
He asked the girl her name and birthdate, and the girl said
that she was nineteen years old and provided a birthdate con-
sistent with that age. Based on his observations about the
girl’s youthful appearance, Officer Moody thought she was
lying, and he ran a police records check on the information
she gave him. He discovered that there was an outstanding
arrest warrant on a robbery charge for a sixteen year-old with
the same name, month, and day of birth that the girl had pro-
vided. Officer Moody thought the young girl was “possibly”
the same person named in the warrant, which would make her
sixteen years old. He did not know her true identity or her
relationship to the older man, and he reasonably believed that
she had already lied to him once. Under these circumstances,
Officer Moody did what any reasonable officer would do, and
what any parent or concerned member of the public would
want an officer to do when a young girl’s life may be in dan-
ger: he continued to investigate.
He called for backup, and when another officer arrived on
the scene, Officer Moody asked him to estimate the age of the
young girl. The other officer said he thought the girl was only
twelve years old. At this point, the girl and the older man were
told to exit the car, and upon further police questioning the
man changed his story and said he had just met the girl (as
opposed to his earlier statement that she was “a friend” of
his), and that he was giving her a ride at another friend’s
request.
At this point, Officer Moody had serious concerns as to the
girl’s age, identity, and the reason(s) for her presence in the
car. He did know that she was riding in a car with a much
older man, in the early morning hours and in an area known
for juvenile prostitution, and that the older man had changed
his story about his relationship with the girl. He also knew
UNITED STATES v. RODGERS 17019
that from all appearances, the girl had lied about her age, thus
committing the crimes of making a false statement to a police
officer and obstructing a law enforcement officer.
Officer Moody thought that, despite what the girl had told
him earlier, she did have some identification with her because
“if she’s going to stick with a story about being 19 years old,
I know that, based on my training and experience, most 19-
year-olds have some form of identification.” On the other
hand, she might be as young as 12, and in that case she might
have identification in the form of an “ASB card”1 or “YMCA
card.” Identification for the girl, whether false or real, would
be evidence of her crimes of making a false statement or
obstruction. Identification could also offer insight as to
whether the girl needed police protection. Under these cir-
cumstances, Officer Moody reasonably searched the “lunge
area of the car” — the area in which she could have hidden
her identification — for identification, and found the evidence
that Rodgers now seeks to suppress.
Contrary to the majority view, the above facts do support
a finding of probable cause for the search. Identification such
as drivers’ licenses, “ABS” cards, and “YMCA” cards are
obviously small enough to be easily stashed in car compart-
ments and alcoves. Here, Officer Moody correctly suspected
that the girl and her older male companion were hiding the
girl’s true age, and he was reasonable in suspecting that they
were hiding their relationship and their plans for the late hour.
Believing that the girl had already lied about her age, it was
certainly reasonable for Officer Moody to suspect that she had
also lied about not having identification with her. Accord-
ingly, he reasonably searched the lunge area of the car.
The majority notes that Officer Moody did not observe a
1
This term is not defined in the record, but presumably Officer Moody
was referring to an identification card issued by a school, an “Associated
Student Body” card.
17020 UNITED STATES v. RODGERS
bag or a purse where identification could be stashed, but the
lack of a bag or purse only heightened the possibility that the
girl may have hidden her identification in the car. Given that
the girl was pretending to be nineteen, she may have hidden
false identification to support that story, which would be evi-
dence of her crimes of making a false statement or obstruc-
tion. Or, she may have hidden real identification, such as a
YMCA card, which might reflect that she was not, in fact,
nineteen. That would also be evidence of her crimes. Officer
Moody already thought the girl was lying about her age, so it
makes sense that he disbelieved her comment that she did not
have any identification on her.2
Probable cause does not require airtight certainty. See
United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006)
2
The majority dismisses these scenarios as mere “hunches” and asks,
“Do Associated Student Body cards even exist anymore? Does a YMCA
card even contain an individual’s age?” Majority at 17015. I do not know
the answers to these questions — and neither does the majority — but in
any case they are not dispositive. Officer Moody testified about his belief
that the young girl may have had an ASB or YMCA card that would shed
light on her true identity, and this belief was reasonable under the circum-
stances (particularly since it appears that neither the majority nor myself
knows enough about ASB and YMCA cards to suggest otherwise). Officer
Moody also testified to his belief that the girl might have identification
because she was “stick[ing] to a story about being 19 years old.” Notably,
the district court found Officer Moody to be “entirely believable.”
Contrary to what the majority states, what Officer Moody “knew” that
night was more than just that the girl had lied about her age. Majority at
17014-15. As I stated earlier, context is key. A girl and an older man were
traveling together at a late hour in an area known for underage prostitu-
tion; the girl looked incredibly young and was lying about her age; the
older man was changing his story about who the girl was and why she was
with him; identification cards are easily stashed in small places; and there
was no purse or bag anywhere near the girl (which might suggest an alter-
nate place to keep identification). These facts and others, as well as infer-
ences that logically flow from them, reasonably suggested to Officer
Moody that he would find identification for the girl in the lunge area of
the car. Officer Moody’s search of the lunge area was supported by proba-
ble cause.
UNITED STATES v. RODGERS 17021
(en banc). In close cases where a child’s life may be in dan-
ger, police officers should receive the benefit of the doubt —
not hindsight admonitions from the bench. Here, the facts
known to Officer Moody at the time of the search were suffi-
cient to support probable cause, and the search was lawful
under Ross.
In addition, although the Government did not rely on Ari-
zona v. Gant, 556 U.S. 332 (2009), we can affirm on any
grounds supported by the record. Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).
Here, Gant authorizes the search because it was reasonable
for Officer Moody to believe that the lunge area of the car
contained some identification for the young girl, and identifi-
cation would be evidence of two crimes for which she was
arrested (i.e., making a false statement and obstruction).
Moreover, the identification might reveal whether the girl was
a minor, and in need of protection. Even if the probable cause
standard were not met here — which it is, as explained above
— the facts are sufficient to support the “reasonable to
believe” standard set forth in Grant.
For the reasons set forth above, I respectfully dissent.