Mendez

On a December evening in 2003, appellant Lionel Mendez was pulled over by two police officers for failure to display a visible license plate or registration tag. He was asked to exit the vehicle, patted down for weapons and, although there were three small children in the car, told to sit on the curb behind the vehicle while a records check was conducted. In response to questioning about matters unrelated to the purpose of the traffic stop, Mendez ultimately told the officers that there was a gun in the car, at which point they arrested him, searched the car and found the gun. After the district court denied his motion to suppress the evidence, Mendez entered a conditional plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922 (g)(1) and 924(a)(2). The only issue on appeal is whether the district court erred when it denied his motion to suppress. We conclude that it did, vacate Mendez’s conviction and remand.

I. FACTUAL AND PROCEDURAL HISTORY

At approximately 9:18 p.m. on December 21, 2003, two Phoenix gang enforcement officers pulled over a car driven by Mendez because they mistakenly thought that it did not have a license plate or…

dissenting:

Here we go again. The Supreme Court has told us repeatedly that the Fourth Amendment protects against unreasonable searches and seizures. United States v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002); Ohio v. Robinette, *1177 519 U.S. 33, 39 , 117 S.Ct. 417 , 136 L.Ed.2d 347 (1996); Florida v. Jimeno, 500 U.S. 248, 250 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991). It does not declare inviolate the sanctity of a suspect’s personal security when a police officer has reasonable concerns for his safety. In Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), the Court recognized that an officer may take reasonable measures to thwart the ability of a suspect deemed to be potentially armed and dangerous from harming the officer or innocent bystanders. Id. at 23 , 88 S.Ct. 1868 ; see also Michigan v. Long, 463 U.S. 1032, 1034, 1047 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983); United States v. Willis, 431 F.3d 709, 717 (9th Cir.2005); United States v. $109,179 in U.S. Currency, 228 F.3d 1080, 1086 (9th Cir.2000); United States v. Portillo, 633 F.2d 1313, 1320 (9th Cir.1980).

The Supreme Court says we must look to the “totality of the…

I. FACTUAL AND PROCEDURAL HISTORY1

At approximately 9:18 p.m. on December 21, 2003, two Phoenix gang enforcement officers pulled over a car driven by Mendez because they mistakenly thought that it did not have a license plate or temporary registration tag.2 Both offi- cers testified that the sole purpose of the stop was “no regis- tration.” The officers, Detectives Jaensson and Bracke, approached the car and saw that there were three small chil- dren inside. Det. Jaensson told Mendez why they had stopped him and asked for “his identification or license.” Mendez presented a California identification card. Det. Jaensson then instructed him to get out of the vehicle and interlock his hands behind his head. He proceeded to pat him down for weapons, during which time he noticed a tattoo on his left hand. Mendez complied without incident. The pat-down produced 1 Our recitation of the facts is based primarily on the testimony adduced at the suppression hearing. Detectives Jaensson and Bracke testified; Mendez did not. 2 The dissent describes the area in which Mendez was stopped as a “gang area.” However, any such determination “requires careful examina- tion by the court, because such…