Hernandez

dissenting.

I respectfully dissent. I disagree with the majority’s conclusion that the officer “had an insufficient basis for a Terry stop.”

It is undisputed that when the officer approached, Rogelio Hernandez exited his vehicle, exhibited nervousness, and walked toward the officer while asking, “What is going on?” At that point, the officer either asked or directed Hernandez to return to his vehicle. Because the record is unclear on this point, the majority opinion cites Florida v. Royer, 460 U.S. 491, 497 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983) to support its conclusion that Hernandez was seized when he returned to his vehicle. However, as the majority opinion acknowledges parenthetically, the issue in Royer was whether consent to a search was voluntary. Id. at 496-97 , 103 S.Ct. 1319 . Significantly, in Royer the seizure occurred before consent to search was requested. See id. at 494 , 103 S.Ct. 1319 . However, this case is more akin to cases where pedestrians were directed to a particular location to ensure officer safety. See United States v. Summer, 268 F.3d 683, 687 (9th Cir.2001) (analogizing an individual in a parked car to a pedestrian). In such a circumstance,…

MEMORANDUM *

The district court found that it was ambiguous whether the officer asked or ordered defendant to return to his truck. Thus, the government did not carry its burden of proving that defendant returned to his truck voluntarily. See Florida v. Royer, 460 U.S. 491, 497 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983) (“[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given.... ”). Defendant was therefore seized when he went back to his truck.

In United States v. Williams, 419 F.3d 1029 , — (9th Cir.2005), we held that “a passenger’s compliance with an officer’s command to get back into the car in which the passenger had just exited is not an unreasonable seizure under the Fourth Amendment.” Id. at 1031 . Williams , however, concerned a passenger in a car *707 that the officer “had already ... lawfully stopped with him inside.” Id. at 1033 . Williams adopted the rationale of other circuits which have held that “officers may detain passengers during a traffic stop.” Id. at 1032 . The passenger there had thus already been lawfully detained and the order to return to…