UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-2917 D.C. No. Plaintiff - Appellant, 2:20-cr-00095- ART-BNW-1 v. OPINION LARRY SENG IN,

Defendant - Appellee.

Appeal from the United States District Court for the District of Nevada Anne R. Traum, District Judge, Presiding

Argued and Submitted September 9, 2024 San Francisco, California

Filed December 30, 2024

Before: Ronald M. Gould and Patrick J. Bumatay, Circuit Judges, and J. Michael Seabright, District Judge. *

Opinion by Judge Gould

* The Honorable J. Michael Seabright, United States District Judge for the District of Hawaii, sitting by designation. 2 USA V. IN

SUMMARY **

Criminal Law

The panel reversed the district court’s order granting Larry Seng In’s motion to suppress a gun found in his car during a traffic stop, and remanded for trial. In argued that the officers’ actions, in particular their decision to handcuff him, escalated a valid Terry stop into an unlawful de facto arrest because the officers handcuffed him before they had probable cause to believe that he was prohibited from possessing the gun. Considering the totality of the circumstances, the panel held that the traffic stop did not turn into a de facto arrest. The officers had a sufficient and reasonable basis to fear for their safety, justifying their decision to handcuff In so that their safety was assured during their investigation.

COUNSEL Peter H. Walkingshaw (argued), Assistant United States Attorney; Robert L. Ellman, Appellate Chief; Jason M. Frierson, United States Attorney; United States Department of Justice, Office of the United States Attorney; Reno, Nevada; Daniel D. Hollingsworth and Adam M. Flake, Assistant United States Attorneys, United States Department

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. IN 3

of Justice, Office of the United States Attorney; Las Vegas, Nevada; for Plaintiff-Appellant. Lauren Torre (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Federal Public Defender for the District of Nevada, Las Vegas, Nevada; for Defendant-Appellee.

OPINION GOULD, Circuit Judge:

Larry Seng In (“In”) was charged in a federal indictment with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) after a gun was found in his car during a traffic stop. In moved to suppress the gun in district court, contending that it was obtained as a result of an unlawful de facto arrest. In did not challenge the officers’ initial traffic stop as an unlawful Terry stop. Instead, In argued that the officers’ actions, in particular their decision to handcuff him, escalated a valid Terry stop into an unlawful de facto arrest because the officers handcuffed him before they had probable cause to believe that he was prohibited from possessing the gun. The district court referred the motion to a magistrate judge. The magistrate judge held an evidentiary hearing and prepared a report and recommendation to the district court, concluding that In was not subject to a de facto arrest without probable cause because the intrusive means of effecting the Terry stop, including handcuffing, were justified under the circumstances. The district court rejected the magistrate judge’s recommendation and granted In’