NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 12 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10052

Plaintiff-Appellee, D.C. No. 3:19-cr-00341-CRB-1 v.

WILLIE WILLIAMS, MEMORANDUM*

Defendant-Appellant.

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

Argued and Submitted August 23, 2023 San Francisco, California

Before: BUMATAY, KOH, and DESAI, Circuit Judges. Dissent by Judge BUMATAY.

Willie Williams appeals the district court’s denial of his motion to suppress

evidence found in a search of his car following a traffic stop.1 We have

jurisdiction under 28 U.S.C. § 1291, and we review de novo the legal conclusions

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 In its order denying the motion to suppress, the district court stated that it may provide a longer explanation of its ruling in the event of an appeal, but did not do so. The district court summarily denied Williams’s motion for reconsideration of the denial of the suppression motion. underlying a motion to suppress. See United States v. Nault, 41 F.4th 1073, 1077

(9th Cir. 2022). We vacate and remand.

A seizure violates the Fourth Amendment when an officer “extend[s] a

traffic stop with tasks unrelated to the traffic mission, absent independent

reasonable suspicion.” United States v. Landeros, 913 F.3d 862, 866 (9th Cir.

2019). “This ‘mission’ is limited to ‘address[ing] the traffic violation that

warranted the stop’ and ‘attend[ing] to related safety concerns.’” United States v.

Evans, 786 F.3d 779, 785 (9th Cir. 2015) (quoting Rodriguez v. United States, 575

U.S. 348, 354 (2015)). “Tasks not related to the traffic mission . . . are therefore

unlawful if they ‘add[] time’ to the stop, and are not otherwise supported by

independent reasonable suspicion of wrongdoing.” Id. (quoting Rodriguez, 575

U.S. at 357).

First, the officers’ inquiries about consent to search Williams’s car and

marijuana possession were unrelated to the mission of the traffic stop on June 30,

2019. The officers initiated the stop upon observing that the brake lights of

Williams’s car were not functioning. The government argues that the mission of

the stop was not only to address the traffic violation for non-functioning brake

lights, but also to investigate the possibility that the car was stolen, which Officer

Roche suspected when the DMV database returned no registration information

during his records check.

2 Notably, the officers’ consent and marijuana inquiries came after the

objective evidence revealed that Williams was the car’s registered owner.

Although Williams’s license plate yielded no result in the DMV database, this

database generally indicates if a license plate had been stolen or belonged to a

different car. And by the time of the inquiries, the officers had reviewed

Williams’s registration card, which matched the car’s license plate and listed

Williams as the registered owner of the car. The registration card also indicated a

serial number for the registration sticker that corresponded with the sticker on the

car’s license plate. Further, the registration card confirmed that it was issued on

April 11, 2019; was registered through August 18, 2019; the Vehicle Identification

Number (“VIN”) was WDBJH65F6XA729314; and that the DMV had received a

fee of $252.00 to register the car.

This information was consistent with the tow record that Officer Roche

found during his records check before the consent and marijuana inquiries. This

tow record showed that the car, with the same license plate number and VIN, had

been towed only a few weeks earlier. Officer Roche testified that he was familiar

with the San Francisco Police Department’s policy that a towed car could not have

been released without valid registration. Specifically, this policy states that

“pursuant to California Vehicle Code § 23553[,] . . . a release of a car may not be

issued for any vehicle with an expired registration. After the necessary registration

3 fees have been paid and a DMV receipt is presented, [the] officer shall issue a

vehicle release.” And prior to the officers’ consent and marijuana inquiries,

Sergeant Conway had called Officer Roche to confirm that the car’s VIN “comes

back to a release liability to a Willie Williams.”

Even if, despite this evidence, the officers’ suspicion of a stolen car was not

dispelled by the time of their consent and marijuana inquiries, questions about

consent to search a car and marijuana possession are not sufficiently tailored to

determining whether a car has been stolen. See Rodriguez, 575 U.S. at 354.

Rather, such questions are plainly aimed at “detect[ing] crime in general or drug

trafficking in particular,” which Rodriguez prohibits in the absence of independent

reasonable suspicion. Id. at 357. Nor does the government offer any explanation

to the contrary. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th

Cir. 2003) (“Our circuit has repeatedly admonished that we cannot manufacture

arguments for [a party],” and “[a] bare assertion of an issue does not preserve a

claim.” (internal quotation marks and citations omitted)).

The record only further confirms that the officers’ consent and marijuana

inquiries were not in connection to any investigation into whether the car was

stolen, but were instead an investigation into whether Williams was trafficking

drugs. At the evidentiary hearing, Officer Roche was asked “consent has nothing

to do with a bad registration, does it?” and “[t]he request for consent had nothing

4 to do with your records search, did it?” Officer Roche responded, “No.” Officer

Roche was then asked, “And [the] marijuana investigation had nothing to do with

your records check?” Officer Roche again replied, “No.” In addition, Officer

Roche testified that he called Sergeant Conway “to ask him about marijuana and to

see if it was a proper way to conduct—or in order to do a search.” Officer Roche

confirmed that he did so “[b]ecause [he] wanted to s[earch] that drug dealer’s

car[.]” Finally, Officer Roche answered affirmatively when asked whether he

“would have liked to get inside that car because [he] suspected it was involved

with drug dealing[.]”

Second, the officers’ unrelated consent and marijuana inquiries added time

to the stop. As soon as Sergeant Conway confirmed to Officer Roche that the car’s

VIN “comes back to a release liability to a Willie Williams,” Officer Roche

immediately turned to pursuing the questions about consent and marijuana,

abandoning any attempt to continue investigating the car’s registration status.

Officer Roche whispered to Officer Mullins, who was conversing with Williams,

“consent, or any marijuana.” After Williams declined Officer Mullins’s request for

consent to search the car, Officer Mullins appeared to end the stop, telling

Williams, “Then we are just going to give you a . . . .”

But Officer Roche interrupted Officer Mullins to initiate a marijuana

investigation, asking Williams, “Hey, you don’t have any marijuana in the car or

5 anything, do you? No? No pot or nothing?” After Williams produced a small,

closed container of marijuana, Officer Roche asked him to “stand by.” Officer

Roche then walked away, telling Officer Mullins that he was “going to go tactical

real quick.” Officer Roche proceeded to call Sergeant Conway about whether the

marijuana would permit a search of the car. All told, these inquiries added nearly

three minutes to the stop.2

The government and the dissent contend that no time was added because the

inquiries occurred while Officer Roche was waiting for additional information

from Sergeant Conway, who was allegedly continuing to investigate the car’s

registration status. This argument fails for two, independently sufficient reasons.

For one, the government and the dissent are wrong as a factual matter. The

officers’ body camera videos show that Sergeant Conway called Officer Roche

only once. During that call, Sergeant Conway reported the findings of his

investigation into the car’s registration status, which he had undertaken after

overhearing on the radio that the dispatcher found no record in the DMV database.

The conversation was limited to Sergeant Conway asking whether Williams’s car

2 These facts readily distinguish this case from United States v. Taylor, 60 F.4th 1233 (9th Cir. 2023), on which the dissent mistakenly relies. There, the officer asked the defendant whether he had any weapons, which we concluded was a question that was “properly within the mission of the stop.” Id. at 1239. Although the officer “fleetingly mention[ed] drugs in the same breath that he asked about weapons,” the defendant “gave a single answer to the combined question.” Id.

6 was “a [19]99 Mercedes,” and Sergeant Conway conveying that he had confirmed

that the car’s VIN “comes back to a release liability to a Willie Williams.” Not

once did Sergeant Conway indicate that he would continue to investigate or convey

any additional information to Officer Roche.

But even assuming that was the case, the government and the dissent would

still be wrong, because Officer Roche’s call to Sergeant Conway about marijuana

diverted Sergeant Conway away from any investigation into the car’s registration.

“The reasonableness of a seizure . . . depends on what the police in fact do,”

Rodriguez, 575 U.S. at 357, and so “[i]f an officer can complete traffic-based

inquiries expeditiously, then that is the amount of ‘time reasonably required to

complete [the stop’s] mission,’” id. (quoting Illinois v. Caballes, 543 U.S. 405, 407

(2005)). As such, “the critical question . . . is not whether” the unrelated inquiry

“occurs before or after” the completion of the stop’s mission, “but whether

conducting” that inquiry “prolongs—i.e., adds time to—the stop.” Id. (cleaned

up). Therefore, whether the stop’s mission was ongoing, although apparently

critical to the dissent, is immaterial under Rodriguez because “[w]hat mattered was

the added time, not at what point, in the chronology of the stop, that time was

added.” Landeros, 913 F.3d at 866; see also United States v. Frazier, 30 F.4th

1165, 1180 (10th Cir. 2022) (“Under Rodriguez, it makes no difference whether an

investigative detour occurs before or after the completion of the stop’s traffic-

7 based mission. The question is whether the stop would have ended sooner had the

officer continued to work diligently on the traffic-related tasks rather than pursue

an unrelated investigation.”).

Accordingly, any time that Sergeant Conway spent addressing Officer

Roche’s unrelated marijuana investigation was time the mission’s tasks went

unaddressed, which necessarily prolonged the stop. See Rodriguez, 575 U.S. at

357. Contrary to the dissent’s suggestion, Rodriguez made clear that even de

minimis delays caused by unrelated “[o]n-scene investigation into other crimes”

cannot be tolerated by the Fourth Amendment absent reasonable suspicion. Id. at

356–57; see also Nault, 41 F.4th at 1078 n.2 (recognizing that “courts have found

stops unconstitutional when prolonged by under thirty seconds before officers

developed independent suspicion”); Landeros, 913 F.3d at 867.

The dissent’s argument to the contrary was explicitly rejected by Rodriguez,

which held that an officer may not “incrementally prolong a stop” for an unrelated

inquiry even if he is “reasonably diligent in pursuing the traffic-related purpose of

the stop, and the overall duration of the stop remains reasonable.” 575 U.S. at 357

(cleaned up). An officer thus cannot “earn bonus time to pursue an unrelated

criminal investigation” by “completing all traffic-related tasks expeditiously.” Id.

Our court so recognized in Landeros. There, we acknowledged that our

prior precedent, “which permit[ted] slight prolongations to ask unrelated

8 questions,” cannot survive after Rodriguez, “which requires independent,

reasonable suspicion if [the additional investigation] adds any time to a traffic

stop.” 913 F.3d at 867 (citation omitted). We therefore concluded that Rodriguez

abrogated a Ninth Circuit decision holding that an officer did not unlawfully

prolong a stop when he “took a break from writing a traffic citation to ask the

driver about a methamphetamine laboratory and obtain the driver’s consent to

search his truck.” Id. Even if “the circumstances surrounding the brief pause . . .

were reasonable,” the prolongation was unlawful in the absence of reasonable

suspicion. Id. “Rodriguez squarely rejected such a reasonableness standard for

determining whether prolonging a traffic stop for reasons not justified by the initial

purpose of the stop is lawful.” Id.

Third and finally, “Rodriguez requires that a traffic stop may be extended to

conduct an investigation into matters other than the original traffic violation only if

the officers have reasonable suspicion of an independent offense.” Id. The

government argues that the officers had reasonable suspicion that Williams

possessed firearms or controlled substances. Specifically, the government cites

Officer Roche’s past observations of Williams loitering near the 200 block of

Golden Gate Avenue, a high-crime area, and associating with known criminals,

coupled with the fact that Williams was stopped two to three blocks from the 200

block of Golden Gate Avenue, driving in a trajectory consistent with having left

9 that block.3 But the district court, having concluded that no prolongation occurred,

did not reach whether the officers had reasonable suspicion to justify their

prolongation of the stop. We therefore decline to consider such a fact-intensive

issue in the first instance, see United States v. Prieto-Villa, 910 F.2d 601, 607 (9th

Cir. 1990), and remand for the district court to determine whether the officers’

prolongation was otherwise supported by independent reasonable suspicion.

VACATED and REMANDED.

3 Our precedent casts doubt on the government’s unparticularized theory of suspicion. See United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (“[T]he officer in question ‘must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.’” (quoting Illinois v. Wardlow, 528 U.S. 119, 123–24 (2000))).

10

FILED

SEP 12 2023

United States v. Williams, No. 22-10052

MOLLY C. DWYER, CLERK

BUMATAY, Circuit Judge, dissenting: U.S. COURT OF APPEALS

The “ultimate touchstone” of the Fourth Amendment is “reasonableness.”

Lange v. California, 141 S. Ct. 2011, 2017 (2021) (simplified). The question here

is whether San Francisco Police Department officers unreasonably prolonged Willie

Williams’s traffic stop—and thus violated his Fourth Amendment rights—by asking

him for consent to search his car and if he possessed marijuana. I agree with the

district court in concluding that they did not. I thus would affirm on that basis and

respectfully dissent.

I.

Officers Cullen Roche and Kerry Mullins pulled Williams over for broken

brake lights. When they ran a search on his license plate through the DMV database,

the database returned no result. This was not normal. Indeed, Officer Roche, in his

four and a half years as a police officer, had never encountered a no-return on a

license plate search until he ran one on Williams’s plate.

Police dispatch also thought this was unusual. Dispatch told Officer Roche

over the radio that the plate had a tow history that matched Williams’s vehicle. But

when Officer Roche asked to confirm that there was no registration information

associated with the plate, dispatch replied, “I don’t know why DMV is coming back

like that. Let me take a look again.”

1 Overhearing that dispatch was “stumped” trying to figure out the license plate

issue, Sergeant John Conway began his own investigation. Sergeant Conway

radioed Officer Roche to tell him that the tow database showed a “release of liability

to a Willie Williams.” Sergeant Conway then took the VIN number from the tow

database—which is separate from the DMV database—and plugged it into the DMV

database. That search showed a license plate that was different from the one on

Williams’s car and that the registration was six months expired. So the investigation

was far from over.

While Sergeant Conway was still investigating these discrepancies, Officers

Roche and Mullins asked Williams if they could search the car and if Williams had

any marijuana. Williams did not consent to the search but showed the officers a

small container of marijuana. Officer Roche then called Sergeant Conway to ask

him about the marijuana Williams had in his car. Sergeant Conway quickly

answered Officer Roche’s questions and then asked his own questions about the

license plate issue. Officer Roche asked Sergeant Conway if he would come to the

stop to help them, and Sergeant Conway did. When Sergeant Conway arrived on

scene, he confirmed that he was “do[ing] a little investigation of [his] own” while

Officers Roche and Mullins were asking Williams other questions. Officer Roche

replied that Conway’s investigation was “a huge help” to him and Officer Mullins.

2 From there, Sergeant Conway and Officers Roche and Mullins continued their

investigation of Williams’s license plate and registration. They asked Williams

about why his license plate did not show a return, and why a search on his VIN

showed a different license plate and expired registration. Ultimately, Sergeant

Conway and Officer Roche concluded that Williams’s registration card was

probably forged and that the car’s registration had expired six months earlier. The

officers conducted an inventory search of the car. That inventory search turned up

a digital scale and a pill bottle with broken pills. And the officers arrested Williams.

II.

The Fourth Amendment prohibits officers from unreasonably prolonging a

traffic stop. “[A] traffic stop can become unlawful if it is prolonged beyond the time

reasonably required to complete the mission” of the stop. Rodriguez v. United

States, 575 U.S. 348, 355 (2015) (simplified). Like all Fourth Amendment inquiries,

this is a question of “reasonableness.” Officers may not extend a stop beyond its

“mission” unless the extension itself is supported by independent reasonable

suspicion. Id. But not every fleeting action beyond these limits violates the Fourth

Amendment. To violate the Fourth Amendment, an officer’s actions must

“measurably extend the duration of the stop.” Id. (simplified). In Rodriguez, the

Supreme Court held that a seven- or eight-minute delay was a measurable extension.

Id. at 352; see also United States v. Landeros, 913 F.3d 862, 867 (9th Cir. 2019)

3 (“several minutes of additional questioning” was an unlawful prolongation). On the

other end of the spectrum, an officer’s “fleeting[] mention [of] drugs”—even if

unrelated to the mission of the stop—doesn’t prolong the stop. United States v.

Taylor, 60 F.4th 1233, 1239 (9th Cir. 2023). And when we conduct this inquiry, the

“officers’ subjective motivations are irrelevant.” Id. at 1240.

Williams argues that the questions about consent to search his car and whether

he had marijuana prolonged the traffic stop. That’s wrong because the investigation

of his vehicle registration discrepancy was still ongoing at the time and so these

questions didn’t measurably extend the stop. While Officers Roche and Mullins

posed these questions to Williams, Sergeant Conway was still diligently

investigating the vehicle registration issue. Officer Roche testified that he knew that

“Sergeant Conway was looking into [the vehicle registration] issue” at the time.

Indeed, the record shows that Sergeant Conway continued to investigate the issue by

cross-referencing the information in the tow and DMV databases while Officers

Roche and Mullins were on scene with Williams. The record also shows that

Sergeant Conway didn’t arrive on scene until nearly five and half minutes after the

marijuana and consent questions were asked and then continued to lead the vehicle

ownership investigation.

The majority takes pains to explain why Williams’s registration plausibly

made sense despite the unusual circumstances. But the majority does so with the

4 benefit of hindsight clarity—a luxury the officers never had. In any event, the

majority’s Monday-morning quarterbacking doesn’t negate the need or legitimacy

of the registration investigation.

The majority also tries to get around the fact that Sergeant Conway continued

his investigation while the officers questioned Williams by focusing on Officer

Roche’s intentions throughout the stop. But our inquiry “is that of ‘objective’

reasonableness.” Taylor, 60 F.4th at 1243 (quoting Florida v. Jimeno, 500 U.S.

248, 251 (1991)). That means “the officers’ subjective motivations, whatever they

may have been, could not change the objective reasonableness of their actions.” Id.;

see also Whren v. United States, 517 U.S. 806, 814 (1996) (“[T]he Fourth

Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in

certain circumstances, whatever the subjective intent.”). So the stop would still be

lawful “even if the officer made the stop only because he wished to investigate a

more serious offense.” United States v. Magallon-Lopez, 817 F.3d 671, 675

(9th Cir. 2016). Officer Roche’s personal motivations are thus “irrelevant.” Taylor,

60 F.4th at 1239.

At one point, Officer Roche did ask Sergeant Conway about whether

Williams’s possession of marijuana was enough to search the car. This exchange

lasted about a minute. Williams argues that this discussion unlawfully prolonged

the stop. But he doesn’t show that the stop would have been measurably shorter if

5 this discussion hadn’t happened. And it takes pure speculation to argue otherwise.

And even if this discussion were unrelated to the mission of investigating the vehicle

registration, such an exchange more resembles the “fleeting[] mention [of] drugs”

not measurably prolonging a stop in Taylor, 60 F.4th at 1239, than the seven- or

eight- minute delay criticized in Rodriguez, 575 U.S. at 352, or the “several

minute[]” prolongation encountered in Landeros, 913 F.3d at 867. Contrary to the

majority’s view, neither the Supreme Court nor the Ninth Circuit has adopted a view

that any de minimis delays violate the Fourth Amendment. The majority, besides

citing those cases, fails to point to any language holding otherwise. And I’m aware

of no case that has held that discussions between officers about different

investigative approaches can unreasonably prolong a stop. Indeed, courts should

want officers to discuss proper protocols with their supervisors to avoid infringing

citizens’ rights.

Turning back to “what the police in fact [did],” Rodriguez, 575 U.S. at 357,

the record supports the district court’s conclusion that the officers didn’t prolong the

stop. At the very least, the record shows that the district court’s view was not clearly

erroneous. See United States v. Magdirila, 962 F.3d 1152, 1156 (9th Cir. 2020).

The district court also noted that it would provide a “longer explanation” of its ruling

in the event of an appeal. Rather than reverse the prolongation ruling, we should

have granted the district court that simple courtesy.

6 As an alternative, the government provided strong arguments on why

independent reasonable suspicion supported the marijuana and consent questions.

Because the majority remands on this question, I avoid using it as an alternative basis

for affirmance here.

7