FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH, D.C. NO. 2:17-CR-00485-DS-1.
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
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.
TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit
TYMKOVICH, CHIEF JUDGE.
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.
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
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.
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
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
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.
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
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
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
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.
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 ...