United States v. 2020-11-20 | 19-10243 | USA V. MALIK NGUMEZI | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

MALIK NGUMEZI,
Defendant-Appellant.
No. 19-10243

D.C. No.
3:18-cr-00358-CRB-1

OPINION

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding

Argued and Submitted June 8, 2020
San Francisco, California

Filed November 20, 2020

Before: Eric D. Miller and Danielle J. Hunsaker, Circuit
Judges, and Patrick J. Schiltz,
*
District Judge.

Opinion by Judge Miller

*
The Honorable Patrick J. Schiltz, United States District Judge for
the District of Minnesota, sitting by designation.

2 UNITED STATES V. NGUMEZI

SUMMARY
**

Criminal Law

The panel reversed the district court’s denial of a motion
to suppress a firearm found in a search of the defendant’s
car, vacated his conviction for being a felon in possession of
a firearm, and remanded for further proceedings.

The panel held that police officers who have reasonable
suspicion sufficient to justify a traffic stop—but who lack
probable cause or any other particularized justification, such
as a reasonable belief that the driver poses a danger—may
not open the door to a vehicle and lean inside.

Because opening the car door and leaning into the car
constituted an unlawful search under the Fourth
Amendment, the panel considered what remedy is
appropriate in this case. The panel held that the exclusionary
rule applies to the loaded handgun found under the driver’s
seat because the government made no effort to satisfy its
burden to show that the gun is not “the fruit of the poisonous
tree,” did not invoke the attenuation doctrine, and did not
argue that the inevitable-discovery doctrine applies.

COUNSEL

Steven J. Koeninger (argued) and Jonathan Abel, Assistant
Federal Public Defenders; Steven G. Kalar, Federal Public

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

UNITED STATES V. NGUMEZI 3

Defender; Office of the Federal Public Defender, San
Francisco, California; for Defendant-Appellant.

Briggs Matheson (argued), Assistant United States Attorney;
Merry Jean Chan, Chief, Appellate Section, Criminal
Division; David L. Anderson, United States Attorney;
United States Attorney’s Office, San Francisco, California;
for Plaintiff-Appellee.

OPINION
MILLER, Circuit Judge:
Following a bench trial, Malik Ngumezi was convicted
of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). He appeals the denial of his motion
to suppress the firearm, which was found in a search of his
car. Because we conclude that the search violated the Fourth
Amendment, we reverse the denial of the suppression
motion, vacate the conviction, and remand for further
proceedings.
The search at issue occurred in the early morning hours
of May 6, 2018, after a San Francisco police officer, Kolby
Willmes, saw Ngumezi’s car parked at a gas station with
Ngumezi in the driver’s seat. The car had no license plates,
in apparent violation of section 5200(a) of the California
Vehicle Code. See People v. Dotson, 101 Cal. Rptr. 3d 897,
901 (Cal. Ct. App. 2009). Ngumezi had recently purchased
the car, and a bill of sale was affixed to the lower passenger-
side corner of the windshield.
Willmes approached the car to investigate; because a gas
pump blocked access to the driver side, he went to the
passenger side. According to Ngumezi, Willmes then

4 UNITED STATES V. NGUMEZI

opened the passenger door, leaned into the car, and asked
Ngumezi for his driver’s license and vehicle registration. For
his part, Willmes agrees that he asked for Ngumezi’s license
and registration and does not deny that he first opened the
door and leaned inside. Willmes says that he does not
remember whether he opened the door, or whether he instead
spoke to Ngumezi through an open window.
Ngumezi produced a California identification card but
not a driver’s license. Willmes asked Ngumezi if his license
was suspended, and Ngumezi admitted that it was. Another
officer then ran a license check and confirmed that
Ngumezi’s license was suspended and that Ngumezi had
three prior citations for driving with a suspended license.
San Francisco Police Department policy requires
officers to inventory and tow a vehicle when a driver lacks a
valid license and has at least one prior citation for driving
without a valid license. Consistent with that policy, the
officers prepared to have Ngumezi’s car towed. In
conducting the inventory search, they found a loaded
.45 caliber handgun under the driver’s seat. The officers then
ran a background check and learned that Ngumezi was
prohibited from possessing firearms because of a previous
felony conviction.
Ngumezi was charged with one count of being a felon in
possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). He moved to suppress the firearm as fruit of an
unlawful search. He conceded that “Officer Willmes . . . had
articulable facts and reasonable suspicion to approach the
vehicle” when Willmes saw that it had no plates. But he
argued that once Willmes approached, “he necessarily was
in eyesight of the proof of sale affixed to the front right-side
windshield,” and the bill of sale “dissipated reasonable
suspicion that the car was not registered.” Because

UNITED STATES V. NGUMEZI 5

reasonable suspicion had dissipated, Ngumezi argued, “no
Fourth Amendment exception permitted the officer’s further
interrogation, pulling the defendant out of the car, or
searching the car.”
The district court denied the motion to suppress. The
court assumed the correctness of Ngumezi’s version of the
facts. It emphasized, however, that the “reasonable suspicion
inquiry is based on what the officer is aware of, and therefore
reasonable suspicion cannot be dispelled by facts unknown
to the officer.” The court noted that Ngumezi did “not allege
that Willmes actually saw the proof of sale, only that it was
in his line of sight.” It concluded that “[w]ithout any
evidence, or indeed even the assertion, that the officer in fact
actually saw the proof of sale, its existence could not have
factored into his analysis of the situation and thus could not
have dispelled his reasonable suspicion.”
After the district court denied the suppression motion,
Ngumezi waived his right to a jury trial and requested a
bench trial on stipulated facts. The court found Ngumezi
guilty and sentenced him to 18 months of imprisonment, to
be followed by two years of supervised release.
On appeal, Ngumezi challenges only the denial of the
motion to suppress, which we review de novo. United
States v. Ped, 943 F.3d 427, 430 (9th Cir. 2019). His
principal argument is that whether or not Officer Willmes
had reasonable suspicion at the time he opened the door,
opening the door and leaning inside constituted a search that
violated the Fourth Amendment because it was not
authorized by any exception to the warrant requirement.
As we have explained, the district court focused on a
different argument—that reasonable suspicion should have
been dispelled because the bill of sale was visible in the

6 UNITED STATES V. NGUMEZI

windshield—and it did not address the argument that
opening the door and leaning inside was an unlawful search.
We can hardly fault the district court for ignoring that issue
because Ngumezi raised it only in a footnote in his reply in
support of his motion to suppress. We have held that “a
perfunctory request, buried amongst the footnotes, does not
preserve an argument on appeal.” Coalition for a Healthy
Cal. v. FCC, 87 F.3d 383, 384 n.2 (9th Cir. 1996). Thus, had
the government argued that the issue was forfeited, we
would have been compelled to agree. In that case, we could
have considered Ngumezi’s argument only if he could show
good cause for not properly raising it in his motion to
suppress. United States v. Guerrero, 921 F.3d 895, 897–98
(9th Cir. 2019) (per curiam); see Fed. R. Crim. P. 12(c)(3).
But the government has not made a forfeiture argument.
Instead, it has addressed the issue on the merits and invited
us to do so as well. We conclude that the government has
forfeited any claim of forfeiture, so we proceed to consider
the merits. United States v. Doe, 53 F.3d 1081, 1083 (9th
Cir. 1995).
In doing so, we assume, as the district court did, that
Ngumezi’s version of the facts is correct. The key facts are
not disputed: Ngumezi says that Willmes opened the car
door and leaned into the car, and Willmes does not
specifically deny that that is what he did. We therefore must
consider whether police officers who have reasonable
suspicion sufficient to justify a traffic stop—but who lack
probable cause or any other particularized justification, such
as a reasonable belief that the driver poses a danger—may
open the door to a vehicle and lean inside. We conclude they
may not.
We begin by examining the Supreme Court’s decision in
New York v. Class, 475 U.S. 106 (1986), which sets out the

UNITED STATES V. NGUMEZI 7

principles that control this case. In Class, police officers
stopped a car for speeding. Id. at 107–08. During the stop,
an officer opened the door to read the vehicle identification
number printed on the doorjamb. Id. at 108. When he did not
find the VIN there, he decided to search the dashboard,
where the VIN for newer cars is located. Id. Because the VIN
on the dashboard was covered by papers, the officer opened
the door and reached inside to move them out of the way;
while doing so, he saw a gun hidden under the seat. Id.
The Supreme Court held that the officer’s conduct did
not violate the Fourth Amendment. The Court explained that
“a car’s interior as a whole is . . . subject to Fourth
Amendment protection from unreasonable intrusions by the
police.” Class, 475 U.S. at 114–15. And it had no difficulty
in concluding that “the intrusion into that space” by the
officer “constituted a ‘search.’” Id. at 115. Nevertheless, it
held that the search was valid because “the governmental
interest in highway safety served by obtaining the VIN is of
the first order,” and the VIN’s location on the dashboard is
“ordinarily in plain view of someone outside the
automobile,” so the intrusion involved in searching it is
“minimal.” Id. at 117–18. The Court made clear that the
result would have been different had the VIN not been
covered by papers: “If the VIN is in the plain view of
someone outside the vehicle, there is no justification for
governmental intrusion into the passenger compartment to
see it.” Id. at 119.
Class establishes that a physical intrusion into the
interior of a car constitutes a search. Although the search in
Class was justified because of the specific need—finding the
VIN—and its minimal intrusiveness, neither of those
considerations is present here. The government has pointed
to no justification for a search. It has not argued that Willmes

8 UNITED STATES V. NGUMEZI

had probable cause, nor has it suggested that Willmes had
any reason to fear that Ngumezi might be dangerous. See
Michigan v. Long, 463 U.S. 1032, 1049 (1983) (authorizing
a protective search of a vehicle’s passenger compartment
“when police have a reasonable belief that the suspect poses
a danger”). Instead, it relies on the general principle that a
driver has a “diminished” expectation of privacy in a vehicle.
Class, 475 U.S. at 113. That is true, but as the Court made
clear in Class, a driver retains important privacy interests, id.
at 112–14, which is why, in most circumstances, “probable
cause is necessary to conduct a warrantless search of a
vehicle,” United States v. Rodgers, 656 F.3d 1023, 1024 (9th
Cir. 2011).
The government argues that Ngumezi would have had to
speak with Willmes one way or another, and therefore
opening the door and leaning in was “minimally intrusive”
because, as a practical matter, it “did not alter Ngumezi’s
circumstances—it merely facilitated communication.” It
analogizes Willmes’s action to that of shining a flashlight
into a car, which the Supreme Court has held is not a search.
See Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality
opinion). That reasoning is flawed because it ignores that
Willmes entered the interior space of the vehicle when he
leaned in across the plane of the door. As several recent
Supreme Court decisions have confirmed, that physical
intrusion is constitutionally significant: “When ‘the
Government obtains information by physically intruding’ on
persons, houses, papers, or effects, ‘a “search” within the
original meaning of the Fourth Amendment’ has
‘undoubtedly occurred.’” Florida v. Jardines, 569 U.S. 1, 5
(2013) (quoting United States v. Jones, 565 U.S. 400, 406
n.3 (2012)); see Jones, 565 U.S. at 408 n.5 (explaining that
a physical intrusion “conjoined with . . . an attempt to find
something or to obtain information” constitutes a search).

UNITED STATES V. NGUMEZI 9

Although the intrusion here may have been modest, the
Supreme Court has never suggested that the magnitude of a
physical intrusion is relevant to the Fourth Amendment
analysis. Jones, for example, involved the attachment of a
GPS tracker that was “a small, light object that [did] not
interfere in any way with the car’s operation,” yet the Court
still held that the attachment effected a search. 565 U.S.
at 424–25 (Alito, J., concurring in the judgment). Nor do we
see how courts could administer a test that would require
them to distinguish between Willmes leaning into the
passenger-side area of Ngumezi’s car and, say, an officer
crawling into the back of a car to look under the seats.
Instead, we apply a bright-line rule that opening a door and
entering the interior space of a vehicle constitutes a Fourth
Amendment search. See Class, 475 U.S. at 115.
The government emphasizes that, under Pennsylvania v.
Mimms, 434 U.S. 106 (1977) (per curiam), an officer “may
as a matter of course order the driver of a lawfully stopped
car to exit his vehicle.” Maryland v. Wilson, 519 U.S. 408,
410 (1997); see id. (extending that rule to passengers). In the
government’s view, opening a door and leaning into a car is
less intrusive than ordering a driver to get out of a car, so if
the latter is permissible, then the former must be permissible
as well. Ordering a driver out of a car is indeed an “intrusion
into the driver’s personal liberty”—albeit one that the Court
in Mimms described as a “de minimis” intrusion that “hardly
rises to the level of a ‘petty indignity.’” 434 U.S. at 111
(quoting Terry v. Ohio, 392 U.S. 1, 17 (1968)). But even if
opening a door and leaning into the car is a lesser intrusion
on the driver’s liberty, it is a greater intrusion on the driver’s
privacy interest in the car’s interior. Indeed, the Court
emphasized in Mimms that a driver ordered out of a car “is
being asked to expose to view very little more . . . than is
already exposed,” something that is not true when an officer

10 UNITED STATES V. NGUMEZI

enters the vehicle. Id. The rule in Mimms does not support
Willmes’s action here.
The government also relies on United States v. Brown,
334 F.3d 1161 (D.C. Cir. 2003), and United States v.
Stanfield, 109 F.3d 976 (4th Cir. 1997), which both upheld
the opening of car doors by police during traffic stops. But
in both cases, the courts identified particularized reasons for
the officers to fear danger. In Brown, the court pointed to
several factors “support[ing] both the officers’ suspicion of
criminal activity and their fear of physical harm,” including
that the officers were responding to a reported shooting, that
passengers in the car made furtive movements as the officers
approached, and that the car’s windows “were darkly tinted,
preventing the officers from having a clear view of the car’s
occupants.” 334 F.3d at 1168–69. Similarly, in Stanfield, the
court described the car as one “with windows so heavily
tinted that [the officers] are unable to view the interior of the
stopped vehicle,” and it characterized the inspection as one
“to ascertain whether the driver is armed, whether he has
access to weapons, or whether there are other occupants of
the vehicle who might pose a danger to the officers.”
109 F.3d at 981. And, crucially, in both cases the court
emphasized that the inspection was conducted “without
breaking the plane of the car’s surface.” Brown, 334 F.3d
at 1169; accord Stanfield, 109 F.3d at 981. That fact
distinguishes the officers’ conduct in those cases from the
physical entry into the car that occurred here.
Cases in which courts have upheld an entry into a car
also have involved some particularized justification. For
example, in United States v. Ryles, 988 F.2d 13 (5th Cir.
1993), an officer stopped a car for suspected drunk driving,
determined that the driver lacked a valid license, and then
opened the door and looked in the car to see whether the

UNITED STATES V. NGUMEZI 11

passenger, “who would ultimately be driving” the vehicle,
was impaired. Id. at 15. The court held that the inspection
was permissible in those circumstances but expressly
rejected the suggestion “that a police officer may in all
circumstances constitutionally intrude into the interior of a
vehicle simply because he has temporarily lawfully detained
the vehicle because of a traffic violation.” Id. at 16; see also,
e.g., United States v. Meredith, 480 F.3d 366, 367 (5th Cir.
2007) (upholding opening of door for “minimally necessary
visual inspection” of driver who claimed to be unable to exit
the vehicle after being ordered to do so); United States v.
Cotton, 721 F.2d 350, 352 & n.1 (11th Cir. 1983) (officer
permissibly opened door to effect arrest when faced with a
clear possibility of danger). We are aware of no authority
upholding an entry in circumstances similar to this case.
Because the opening of the car door and leaning into the
car constituted an unlawful search, we must consider what
remedy is appropriate. The exclusionary rule generally
applied in Fourth Amendment cases requires courts to
suppress any evidence obtained as a “‘direct result of an
illegal search or seizure,’” as well as “‘evidence later
discovered and found to be derivative of an illegality,’ the
so-called ‘fruit of the poisonous tree.’” Utah v. Strieff, 136 S.
Ct. 2056, 2061 (2016) (quoting Segura v. United States,
468 U.S. 796, 804 (1984)). Here, the evidence sought to be
suppressed is the gun that was found under the seat. Officer
Willmes did not see the gun while he was leaning into the
car; he found it only in the subsequent inventory search,
which was conducted because Ngumezi’s suspended license
required his car to be impounded. Ngumezi contends that the
gun is nevertheless the fruit of the unlawful search because
if Willmes had not leaned into the car, Ngumezi “might have
been less intimidated” and could have directed Willmes to
the bill of sale on the windshield, dispelling any suspicion

12 UNITED STATES V. NGUMEZI

and ending the encounter before the officers learned of his
suspended license. The “fruit of the poisonous tree” doctrine
does not require a particularly tight causal chain between the
illegal search and the discovery of the evidence sought to be
suppressed. See, e.g., United States v. Johns, 891 F.2d 243,
245 (9th Cir. 1989). Even so, we have some doubt whether
it can accommodate a chain with quite so many speculative
links as Ngumezi’s. We need not resolve that question,
however, because “[t]he government has the burden to show
that the evidence is not ‘the fruit of the poisonous tree,’” and
here the government has made no effort to do so. United
States v. Twilley, 222 F.3d 1092, 1097 (9th Cir. 2000)
(quoting Johns, 891 F.2d at 245). Nor has it invoked the
closely related “attenuation” doctrine, which would allow it
to avoid suppression by showing that “the connection
between unconstitutional police conduct and the evidence is
remote.” Strieff, 136 S. Ct. at 2061.
In addition, despite what would seem to be a plausible
argument that the gun would have been discovered even
without the constitutional violation, the government has not
argued that the inevitable-discovery doctrine applies. See
Nix v. Williams, 467 U.S. 431 (1984). It is the government’s
burden to show inevitable discovery, so its failure to make
the argument prevents us from upholding the denial of the
suppression motion on that theory. See United States v.
Ruckes, 586 F.3d 713, 719 (9th Cir. 2009).
Instead, as the government confirmed at oral argument,
it has made only one argument against exclusion—namely,
that we should not apply the exclusionary rule because the
benefits of deterrence do not outweigh the social costs of
suppression. The government emphasizes two points: that
Willmes’s conduct was not “flagrantly illegal” and that
suppression would let a guilty defendant go free. We find

UNITED STATES V. NGUMEZI 13

neither persuasive. First, although the flagrancy of the
government’s conduct is relevant to the attenuation doctrine,
see Strieff, 136 S. Ct. at 2063, lack of flagrancy is not a
freestanding basis for avoiding the application of the
exclusionary rule—at least not where, as here, it falls short
of establishing that the officer had an “objectively
‘reasonable good-faith belief’” in the lawfulness of his
conduct, United States v. Lustig, 830 F.3d 1075, 1080 (9th
Cir. 2016) (quoting Davis v. United States, 564 U.S. 229,
238 (2011)). Second, while it is true that applying the
exclusionary rule in this case will mean that a guilty
defendant goes free, that is true of applying the exclusionary
rule in essentially every case. Nothing about this case calls
for a remedy other than “[t]he typical remedy for a Fourth
Amendment violation,” which “is the exclusion of evidence
discovered as a result of that violation from criminal
proceedings against the defendant.” United States v. Garcia,
974 F.3d 1071, 1075 (9th Cir. 2020).
We reverse the denial of the suppression motion, vacate
Ngumezi’s conviction, and remand for further proceedings.
See United States v. Cano, 934 F.3d 1002, 1010 (9th Cir.
2019).
REVERSED, VACATED, AND REMANDED.