Willis

dissenting:

In his Report and Recommendation, the magistrate judge found that because defendant Mark Willis had already voluntarily stopped his car, Officers Carl Boehmer and D. Miller did not perform a traffic stop under Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). Because the magistrate judge found that there had been no traffic stop, he specifically declined “to assess the credibility of the officer’s testimony about Willis’s driving.” The magistrate judge further found that the officers did not have a reasonable suspicion of criminal activity that would justify a stop under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). However, the magistrate judge found that the stop was justified by the community caretaking function under Cady v. Dombrowski, 413 U.S. 433 , 93 S.Ct. 2523 , 37 L.Ed.2d 706 (1973). In denying Willis’s motion to suppress, the district court adopted without change the Report and Recommendation.

The majority declines to affirm the district court’s decision based on either Terry or Cady . Instead, it affirms on a ground explicitly rejected by the magistrate judge and the district court — that Officers Boeh-mer…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-10079 Plaintiff-Appellee, D.C. No. v.  CR-03-00157-

MARK LAMOND WILLIS, PMP/LRL

Defendant-Appellant.  OPINION

Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding

Argued and Submitted December 8, 2004—San Francisco, California

Filed December 19, 2005

Before: Alex Kozinski, William A. Fletcher, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee; Dissent by Judge W. Fletcher

16549 UNITED STATES v. WILLIS 16551

COUNSEL

Anne R. Traum, Assistant Federal Public Defender, Las Vegas, Nevada, for the defendant-appellant. 16552 UNITED STATES v. WILLIS Andrew W. Duncan (argued) and Thomas S. Dougherty, Assistant United States Attorneys, Las Vegas, Nevada, for the plaintiff-appellee.

OPINION

BYBEE, Circuit Judge:

Appellant Mark Lamond Willis appeals the denial of his motion to suppress evidence following his conditional guilty plea for violation of 18 U.S.C. §§ 922(g) and 924(a)(2), felon in possession of a…

Appellant Mark Lamond Willis appeals the denial of his motion to suppress evidence following his conditional guilty plea for violation of 18 U.S.C. §§ 922 (g) and 924(a)(2), felon in possession of a firearm and forfeiture of the firearm. Willis moved to suppress the firearm found in his possession as the fruit of an illegal seizure. See U.S. CONST, amend. IV. Finding his arguments unpersuasive, we affirm the district court’s denial of the motion -to suppress evidence and affirm Willis’s conviction.

I

Oh December 19, 2002, around 2:00 a.m., Las Vegas Metropolitan Police Department (“LVMPD”) Officer Carl Boehmer “observed a [white two-door] vehicle turning rapidly onto Las Vegas Boule *712 vard.... ” Officer Boehmer testified that the vehicle’s rapid turn attracted his attention because “[i]t was just a more excessive turn than a citizen should[make].” He followed the vehicle as it made two more quick turns before stopping in front of an apartment building in a high-crime area. Officer Boehmer then watched a male (later identified as Willis) get out of the car, sprint across the street and up the stairs to the second floor of an apartment building, and pound on the door until he…