UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF No. 21-10248 AMERICA, Plaintiff-Appellee, D.C. Nos. 4:19-cr-01468-CKJ-MSA-1 v. 4:19-cr-01468-CKJ-MSA SERGIO GUERRERO, Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted June 16, 2022 San Francisco, California

Filed September 2, 2022

Before: Sidney R. Thomas, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge Gould; Concurrence by Judge Bea; Dissent by Judge S.R. Thomas 2 UNITED STATES V. GUERRERO

SUMMARY *

Criminal Law

In a per curiam opinion, the panel affirmed the district court’s denial of Sergio Guerrero’s motion to suppress because of the consistent conclusions of Judge Gould and Judge Bea, which represent a majority of the panel, even though the reasoning of Judge Gould and Judge Bea in their separate concurrences is different.

The panel noted that one exception to the Fourth Amendment’s prohibition of searches and seizures conducted without prior approval by judge or magistrate is a Terry stop, which allows an officer to briefly detain an individual when the officer has a reasonable articulable suspicion that an individual is engaged in a crime, during which stop an officer may also conduct a limited protective frisk if the officer has reason to believe the individual has a weapon. The panel noted that another exception is when an officer has probable cause to arrest an individual.

Judge Gould concurred on the grounds that Trooper Amick effected a de facto arrest supported by probable cause.

Judge Bea concurred on the grounds that Trooper Amick merely detained Guerrero and did not effectuate a de facto arrest, but that even if Trooper Amick had arrested Guerrero, there was probable cause to do so.

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

Dissenting, Judge Thomas wrote that Trooper Amick’s stop ripened into an arrest when he held Guerrero handcuffed, on a roadside, for approximately 40 minutes, waiting for federal officers to arrive; and that Trooper Amick had no probable cause to do so.

COUNSEL J. Ryan Moore (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Defendant- Appellant. Angela W. Woolridge (argued), Assistant United States Attorney; Christina M. Cabanillas, Deputy Appellate Chief; Gary M. Restaino, United States Attorney; United States Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee. 4 UNITED STATES V. GUERRERO

OPINION PER CURIAM:

After the district court denied his motion to suppress, Sergio Guerrero pled guilty to smuggling ammunition in violation of 18 U.S.C. § 554(a). Guerrero timely appealed the denial of his motion to suppress. This appeal challenges that denial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review the district court’s denial of a motion to suppress de novo. United States v. Edwards, 761 F.3d 977, 981 (9th Cir. 2014). We review de novo mixed questions of law and fact, such as whether a seizure became a de facto arrest and whether an officer had reasonable suspicion or probable cause. Id.; Ornelas v. United States, 517 U.S. 690, 699 (1996). We review whether the exclusionary rule applies de novo and the district court’s underlying factual findings for clear error. Unit