United States v. Tamaran Bontemps ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10195
Plaintiff-Appellee,
D.C. No.
v. 2:18-cr-00099-JAM-1
TAMARAN EDWARD BONTEMPS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted May 11, 2020
San Francisco, California
Filed October 13, 2020
Before: Ryan D. Nelson and Daniel A. Bress, Circuit
Judges, and James S. Gwin, * District Judge.
Opinion by Judge Bress;
Dissent by Judge Gwin
*
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
2 UNITED STATES V. BONTEMPS
SUMMARY **
Criminal Law
The panel affirmed a criminal judgment in a case in
which the district court denied the defendant’s motion to
suppress evidence, and the defendant entered a conditional
guilty plea to being a convicted felon in possession of a
firearm.
Police detained the defendant after observing a bulge
under his sweatshirt that likely indicated a concealed
firearm, which is presumptively unlawful to carry in
California. After searching the defendant, a convicted felon
with an outstanding felony warrant, police determined he
was carrying a loaded gun in a shoulder holster. The panel
held that the district court did not clearly err in crediting an
officer’s testimony that he observed on the defendant a “very
large and obvious bulge” that suggested a concealed firearm.
The panel further held that reasonable suspicion supported
the stop, and that the district court therefore properly denied
the defendant’s motion to suppress evidence found during
the search.
Dissenting, District Judge Gwin wrote that, without
other corroborating evidence, a sweatshirt bulge alone did
not give an objectively reasonable and particularized
suspicion to stop the defendant.
**
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. BONTEMPS 3
COUNSEL
Ann C. McClintock (argued), Assistant Federal Defender;
Heather E. Williams, Federal Defender; Federal Defender’s
Office, Sacramento, California; for Defendant-Appellant.
David Spencer (argued) and Timothy H. Delgado, Assistant
United States Attorney; Camil A. Skipper, Appellate Chief;
McGregor W. Scott, United States Attorney; United States
Attorney’s Office, Sacramento, California; for Plaintiff-
Appellee.
OPINION
BRESS, Circuit Judge:
Police detained Tamaran Bontemps after observing a
bulge under his sweatshirt that likely indicated a concealed
firearm, which is presumptively unlawful to carry in
California. After searching Bontemps, a convicted felon
with an outstanding felony warrant, police determined he
was carrying a loaded gun in a shoulder holster. The
question in this case is whether police had reasonable
suspicion of illegal conduct sufficient to justify the stop. We
hold that the district court did not clearly err in crediting an
officer’s testimony that he observed on Bontemps a “very
large and obvious bulge” that suggested a concealed firearm.
We further hold that reasonable suspicion supported the
stop. The district court therefore properly denied
Bontemps’s motion to suppress evidence found during the
search.
4 UNITED STATES V. BONTEMPS
I
We describe the events surrounding the stop based on the
testimony of Vallejo Police Department Detectives Jarrett
Tonn and Kevin Barreto at a hearing on Bontemps’s motion
to suppress, as well as Tonn’s and Barreto’s police reports
and bodycam footage.
On April 18, 2018, Tonn and Barreto were patrolling
Vallejo in a black police SUV. Barreto drove while Tonn
sat in the front passenger seat. At around 3:51 p.m., the
detectives observed a group of four young African American
men walking eastbound on Robles Way, a two-lane road
with a center turn lane in a mixed residential/commercial
area (at one point Tonn described Robles Way as “a two-lane
road on either side of the small concrete divide,” but the road
was in fact narrower and had no concrete divide).
As the detectives drove past the group, Barreto noticed
that one of the men, Quinton Mills, appeared to be carrying
a concealed handgun in the pouch pocket of his sweatshirt.
Barreto made a U-turn so that the officers could get a closer
look. At this point, the men were walking eastbound on the
south side of the street, and the officers were driving five to
seven miles per hour westbound. Detective Barreto slowed
the vehicle further as they approached the group. Although
Barreto already “wasn’t going fast,” he “slowed down fairly
rapidly” “so [the officers] could look at them.” 1
From the passenger seat, Detective Tonn could “very
clearly” see the four men on the sidewalk, who were not
1
The dissent contends that Tonn and Barreto testified inconsistently.
That is not the case. As the district court recognized, Tonn merely began
his account once the officers had already made their first U-turn and were
driving westbound.
UNITED STATES V. BONTEMPS 5
“very far away” on the other side of the street. Tonn
observed that Bontemps, who was walking in front with
Mills, also “had obvious indicators of having a firearm.”
According to Tonn, based on his “training and experience as
a police officer,” both Bontemps and Mills had “bulges in
parts of their body” that were “consistent with carrying a
firearm in public.”
In particular, Bontemps, who was wearing a light gray
sweatshirt that was partially zipped up, “had a very obvious
bulge on his left side just above the waist area, kind of
halfway maybe between his waist and his left armpit.” Due
to this “very large and obvious bulge in Mr. Bontemps’
sweatshirt on his left side above his waist,” as well as
Detective Tonn’s training and his encounters with
“numerous people with firearms,” Tonn believed Bontemps
was carrying a concealed gun.
After the SUV passed by the group, the detectives turned
around and pulled up behind the four men, exited the vehicle,
and ordered the group to stop and sit on the curb. All four
complied. Mills had his hands in his front pocket, where
Detective Barreto suspected he was concealing a firearm.
Barreto unholstered his service pistol, held it by his side, and
told Mills to remove his hands from the pocket. Barreto then
ordered Mills to keep his hands up, reached into Mills’s
sweatshirt pocket, and removed a 9mm Glock 19 handgun
with a live round in the chamber. (A later search uncovered
a twenty-two-round magazine with nine live rounds in
Mills’s pants pocket.)
As Barreto was dealing with Mills, Bontemps became
argumentative and began yelling at the officers and cars
passing by. As the situation escalated and the officers called
for backup, Detective Tonn deployed his Taser on Bontemps
to subdue him. Tonn, who also had his gun drawn, ordered
6 UNITED STATES V. BONTEMPS
the men to lie on their stomachs. The detectives then
handcuffed and searched Bontemps, uncovering a loaded
.40 caliber Glock 22 handgun concealed in a shoulder holster
on the left side of his body. The handgun’s serial number
had been drilled off, rendering it unreadable. When officers
ran Bontemps’s information, they discovered he was on
felony probation for carrying a loaded firearm in public and
had an outstanding warrant for a probation violation.
In May 2018, a grand jury returned an indictment
charging Bontemps with one count of being a convicted
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Bontemps moved to suppress the evidence
gathered during the stop, including his concealed firearm, on
the ground that officers lacked reasonable suspicion to stop
him. The district court held a hearing at which both
Detectives Tonn and Barreto testified. Defense counsel
cross-examined both officers at the hearing.
The district court denied Bontemps’s suppression
motion, finding that reasonable suspicion justified the stop.
The court determined that the stop began when the detectives
exited the SUV and ordered the group to stop and sit on the
curb. The court then concluded that “the detectives had an
objectively reasonable, articulable suspicion at the stop’s
inception” based on the “visible bulge above Bontemps’s
waist.”
In reaching this conclusion, the district court cited
Detective Tonn’s police report, which stated that he
observed “‘a bulge on [Bontemps’s] left waist/side area,’
and ‘feared Bontemps was armed.’” The court also credited
Detective Tonn’s testimony that “he could see the bulge in
Bontemps’s jacket from the car,” and that, “based on his
training and experience,” Tonn “believed Bontemps was
carrying a firearm.” Finally, the court pointed to Detective
UNITED STATES V. BONTEMPS 7
Barreto’s bodycam footage that confirmed “there was a
bulge on the left side of Bontemps’s jacket, and that the
bulge was visible from inside the patrol car.”
Bontemps entered a conditional guilty plea that reserved
his right to appeal the district court’s denial of his motion to
suppress. The district court entered judgment and sentenced
Bontemps to 57 months’ imprisonment. Bontemps timely
appealed.
II
A
Under Terry v. Ohio, 392 U.S. 1 (1968), “an officer may,
consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.” Illinois
v. Wardlow, 528 U.S. 119, 123 (2000). We review
determinations of reasonable suspicion de novo, but “factual
findings underlying those determinations are reviewed for
clear error, giving ‘due weight to inferences drawn from
those facts by resident judges and local law enforcement.’”
United States v. Guzman-Padilla, 573 F.3d 865, 881 (9th
Cir. 2009) (quoting Ornelas v. United States, 517 U.S. 690,
699 (1996)).
In California, evidence that a person is concealing a
firearm provides an adequate basis to suspect illegal activity,
and thus grounds to initiate a Terry stop. Circuit precedent
is clear on this point. In Foster v. City of Indio, 908 F.3d
1204 (9th Cir. 2018) (per curiam), we held that “[w]here
state law makes it generally unlawful to carry a concealed
weapon without a permit, a tip that a person is carrying a
concealed firearm raises a reasonable suspicion of potential
criminal activity” under Terry. Id. at 1215. That is so “even
8 UNITED STATES V. BONTEMPS
if the tip does not state that the person is carrying the firearm
illegally or is about to commit a crime.” Id.Under California law, which Bontemps does not
challenge here, it is generally illegal to carry a concealed
firearm in public. See Cal. Penal Code § 25400. In Foster,
we held that “[g]iven the insignificant number of concealed
carry permits issued in California, a reasonable officer could
conclude that there is a high probability that a person
identified in a 911 call as carrying a concealed handgun is
violating California’s gun laws.” 908 F.3d at 1216. We
concluded the officer in Foster could therefore reasonably
make a Terry stop based on this information. Id. at 1217.
We held similarly in another more recent case. See United
States v. Vandergroen, 964 F.3d 876, 881–82 (9th Cir. 2020)
(holding that officers had reasonable suspicion to justify a
stop based on a 911 call reporting that the defendant had a
gun “on him” because “possessing a concealed weapon” is
“presumptively unlawful in California”).
Under our case law, the reasonable suspicion analysis is
different in a jurisdiction that has different rules for carrying
concealed weapons. See United States v. Brown, 925 F.3d
1150, 1153–54 (9th Cir. 2019) (holding that a tip that an
individual “had a gun” in Washington did not support a
reasonable suspicion of wrongdoing because carrying a
firearm is “presumptively lawful in Washington”). But
Bontemps was carrying a concealed (not to mention loaded)
weapon in California, and such conduct is “presumptively a
crime” in that State. Vandergroen, 964 F.3d at 881.
That is not the end of the matter, however, because there
is still the question whether officers had reasonable
suspicion that Bontemps was concealing a firearm. The
district court found they did, based on Detective Tonn’s
testimony that Bontemps had a “very large and obvious
UNITED STATES V. BONTEMPS 9
bulge” on his sweatshirt that likely indicated a concealed
firearm. Our existing case law in this area supports the
district court’s decision below. That is because our prior
cases “have given significant weight to an officer’s
observation of a visible bulge in an individual’s clothing that
could indicate the presence of a weapon.” United States v.
Flatter, 456 F.3d 1154, 1157–58 (9th Cir. 2006) (citing
United States v. Alvarez, 899 F.2d 833, 835, 839 (9th Cir.
1990); United States v. Allen, 675 F.2d 1373, 1383 (9th Cir.
1980); and United States v. Hill, 545 F.2d 1191, 1193 (9th
Cir. 1976)). We have also noted that “[i]n assessing the
totality of the circumstances” for reasonable suspicion,
“relevant considerations may include: observing a visible
bulge in a person’s clothing that could indicate the presence
of a weapon.” Thomas v. Dillard, 818 F.3d 864, 877 (9th
Cir. 2016) (citing Flatter, 456 F.3d at 1157).
Bontemps points out that none of our prior cases found
reasonable suspicion based solely on a bulge suggestive of a
firearm. But none of these cases presented that question,
either. And none suggested that a bulge indicative of a
firearm would be insufficient to justify a Terry stop in a
jurisdiction like California.
Bontemps initially argued on appeal that a bulge alone is
necessarily unreliable because the bulge could be anything
(his examples: candy, a gift, or a “post-mastectomy
prosthetic”). But Bontemps ultimately acknowledged at oral
argument what is, of course, true: that in some circumstances
a bulge could be an obvious indicator of a concealed
firearm—for example, a bulge underneath a tight-fitting shirt
that clearly reflects the distinct outline of a large gun.
Precedent suggests—and common sense confirms—
what we now hold here: a bulge that appears to be a
concealed firearm can form the basis for a Terry stop in a
10 UNITED STATES V. BONTEMPS
jurisdiction where carrying a concealed weapon is
presumptively unlawful. This holding accords not only with
our past cases discussed above but also with the basic mode
of analysis under Terry, in which courts “look at the ‘totality
of the circumstances’ of each case to see whether the
detaining officer has a ‘particularized and objective basis’
for suspecting legal wrongdoing.” United States v. Arvizu,
534 U.S. 266, 273 (2002) (quoting United States v. Cortez,
449 U.S. 411, 417 (1981)).
By contrast, Bontemps’s suggestion that a bulge could
never provide reasonable suspicion for a Terry stop to
investigate a potential concealed weapon is not justified
under Terry. The reasonable suspicion standard “is not a
particularly high threshold to reach” and reflects a
“‘commonsense, nontechnical conception that deals with the
factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians,
act.’” United States v. Valdes-Vega, 738 F.3d 1074, 1078
(9th Cir. 2013) (en banc) (alterations omitted) (quoting
Ornelas, 517 U.S. at 695). One can easily imagine bulges
that are likely indicative of concealed firearms, especially to
a police officer’s trained eye. An ironclad rule precluding
Terry stops in those circumstances absent further indicia of
wrongdoing would improperly hamstring officers in their
investigation of patently unlawful activity.
Such a rule would also run counter to our precedent
involving Terry stops for concealed weapons. We have
previously held, as explained above, that a reliable 911 tip
“that a person is carrying a concealed firearm raises a
reasonable suspicion of potential criminal activity” under
Terry. Foster, 908 F.3d at 1215. Since that is the case,
Terry’s reasonable suspicion standard should likewise
permit this result based on an officer’s own observation,
UNITED STATES V. BONTEMPS 11
grounded in law enforcement experience, that a person is
potentially carrying a concealed weapon under his clothing
due to the bulge that a firearm creates. See Arvizu, 534 U.S.
at 273.
Finally, that a bulge can give rise to reasonable suspicion
of a concealed firearm inheres in how illicit weapons are
typically held on the person. A concealed weapon is
necessarily obscured by something, typically clothing. A
rule that always required more than a suggestive bulge, or
that required the concealed weapon to be revealed, would
run counter to Terry’s fact-based standard and pose obvious
safety concerns. See also Pennsylvania v. Mimms, 434 U.S.
106, 112 (1977) (per curiam) (upholding under Terry a pat-
down after a vehicle stop because “[t]he bulge in the jacket
permitted the officer to conclude that Mimms was armed and
thus posed a serious and present danger to the safety of the
officer”).
B
Even if a bulge indicating a concealed weapon can be
sufficient to justify a Terry stop, there remains the issue
whether the officers in this case had reasonable suspicion to
detain Bontemps based on the particular bulge that Detective
Tonn observed on Bontemps’s sweatshirt. See United States
v. Elsoffer, 671 F.2d 1294, 1299 n.10 (11th Cir. 1982)
(holding that a bulge provided a basis for arrest, but noting
“[w]e do not hold that any bulge on a person would give
probable cause for an arrest”). Here we return to the thrust
of Bontemps’s argument on appeal, which is that a bulge can
be indicative of many things, and that officers could use
perceived bulges as a pretext for making unjustified Terry
stops.
12 UNITED STATES V. BONTEMPS
On this point, Bontemps argues that the bulge in his
sweatshirt was not suggestive of a firearm, citing cases
involving searches premised on bulges perceived to be
drugs. In those cases, courts held that the bulges in question
did not create either reasonable suspicion to search or
probable cause to arrest. See United States v. Jones,
254 F.3d 692 (8th Cir. 2001); United States v. Eustaquio,
198 F.3d 1068 (8th Cir. 1999). Similarly, in United States v.
Job, 871 F.3d 852, 861 (9th Cir. 2017), and where a Terry
frisk uncovered drug paraphernalia, we held that police
lacked reasonable suspicion to perform the search. That the
defendant’s “pants appeared to be ‘full of items’ and he
appeared nervous d[id] not support the conclusion that he
was engaged in criminal activity.” Id.Cases involving “drug bulges,” however, present
somewhat different considerations than “gun bulges” under
the fact-based Terry inquiry. While guns are made of rigid
materials (such as metal or hard plastics) and possess a
relatively distinctive shape, drugs or packages of drugs come
in different shapes and sizes, some quite small, soft, and
nondescript. See Eustaquio, 198 F.3d at 1071 (explaining
that a bulge perceived to be drugs could indicate “any
number of non-contraband items”).
Job, for instance, did not even appear to involve a
distinctive bulge at all. See 871 F.3d at 861. In that case, we
expressly contrasted an observation that the defendant’s
pants appeared to be “full of items” with “‘an officer’s
observation of a visible bulge in an individual’s clothing that
could indicate the presence of a weapon.’” Id. (quoting
Flatter, 456 F.3d at 1157). Even so, some bulges have been
held to create not only reasonable suspicion but even
probable cause to arrest for drug possession. See Elsoffer,
671 F.2d at 1299 (“In this case the unusual size and shape of
UNITED STATES V. BONTEMPS 13
the bulge and, given its unusual size and shape, its abnormal
position on Elsoffer’s person alone provided not only
reasonable suspicion but also probable cause for Elsoffer’s
arrest.”).
While “drug” bulge cases involve some different
considerations owing to the physical differences between
pocketed drugs and concealed guns, Bontemps’s overall
concern with indiscriminate stops based on bulges alone
remains a valid one in the concealed firearm context. And it
is a concern of which we are mindful. In this case, however,
we conclude that the district court’s basis for finding
reasonable suspicion was soundly supported in the record
based on factual findings that were not clearly erroneous.
Guzman-Padilla, 573 F.3d at 881. And those facts, taken
together, created reasonable suspicion of criminal activity.
Detective Tonn testified that he saw a “very large and
obvious bulge in Mr. Bontemps’ sweatshirt” that appeared,
based on his training and experience, to be a concealed
firearm. After a hearing in which the district court was
actively engaged and observed Tonn (and Barreto) testify,
including after cross-examination, the district court credited
Tonn’s account based on Tonn’s firsthand description of
what he saw and his base of knowledge as a law enforcement
officer.
Our fine colleague in dissent maintains that Tonn only
testified to seeing a “non-descript bulge.” That is not
correct. Far from regarding the bulge as “non-descript,”
Tonn testified that Bontemps had a bulge on his “body
consistent with my training and experience as a police
officer, consistent with carrying a firearm in public.” Tonn
thus believed Bontemps was “carrying a firearm” based on
the “obvious bulge in Mr. Bontemps’ sweatshirt on his left
side about his waist.” Tonn repeatedly described the bulge
14 UNITED STATES V. BONTEMPS
as a “very obvious bulge,” a “very large and obvious
protrusion coming from his left side,” and “fairly obvious.”
The bulge was “obvious” to Tonn for one reason: it was an
“obvious indicator[] of having a firearm.”
The dissent is thus mistaken in claiming there was “no
evidence to suggest that the bulge Detective Tonn saw in this
case was anything special.” And the dissent is equally
mistaken in asserting that “Detective Tonn never described
the bulge as obviously a firearm.” That was the central point
Tonn repeatedly made throughout his testimony. While our
cases “have given significant weight to an officer’s
observation of a visible bulge in an individual’s clothing that
could indicate the presence of a weapon,” Flatter, 456 F.3d
at 1157–58, the dissent gives Tonn’s observations no weight.
“[T]o reverse a district court’s factual findings as clearly
erroneous, we must determine that the district court’s factual
findings were illogical, implausible, or without support in
the record.” United States v. Spangle, 626 F.3d 488, 497
(9th Cir. 2010) (citing United States v. Hinkson, 585 F.3d
1247, 1262 (9th Cir. 2009) (en banc)). Moreover, “[w]here
testimony is taken, we give special deference to the district
court’s credibility determinations,” United States v.
Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008), and
generally “cannot substitute [our] own judgment of the
credibility of a witness for that of the fact-finder.” United
States v. Durham, 464 F.3d 976, 983 n.11 (9th Cir. 2006).
Nothing about the district court’s central factual finding
was “illogical” or “implausible.” Spangle, 626 F.3d at 497.
On the contrary, it enjoys ample support in the record. From
his vantage point in a slowly moving SUV that had
decelerated further to get a good look, Tonn could “very
clearly” see Bontemps, who was not “very far away” on the
opposite side of a residential street in broad daylight.
UNITED STATES V. BONTEMPS 15
Bontemps was also carrying a gun in a shoulder holster, and
thus on a part of his body where other items would be less
likely to be held (this was not the pants “full of items” that
we considered in Job). Tonn also immediately recognized
the bulge as a gun based on his training and “all the
numerous people I’ve stopped.”
While the fact-driven nature of a Terry analysis does not
mean any one of these factors is necessary to justify an
investigatory stop such as this, they were sufficient in this
case when considered together. See Arvizu, 534 U.S. at 273;
Thomas, 818 F.3d at 877. The dissent is thus incorrect in
implying that our holding allows any bulge of any kind to
justify a Terry stop. Our holding is instead that a bulge
suggestive of a firearm can be sufficient to create reasonable
suspicion, and that in this case there was ample evidence
from which to conclude that Bontemps’s “obvious” bulge
was likely a concealed firearm.
In arguing for a contrary result, the dissent ignores the
district court’s role as factfinder, Spangle, 626 F.3d at 497,
the record in this case, and the more modest reasonable
suspicion standard, which is less than probable cause and
“considerably short” of a “preponderance of the evidence,”
Arvizu, 534 U.S. at 274. The dissent labors to manufacture
supposed inconsistencies between the officers’ testimony
and their police reports. But the officers’ accounts were
consistent on the core points, and there is no requirement that
the initial police reports and later testimony of two different
officers all be mirror images in every picayune respect,
especially when the officers were focused on multiple
suspects at the same time. Tellingly, Bontemps does not
raise any of the dissent’s claimed “inconsistencies” in his
briefing in this court. Moreover, none of the minute
inconsistencies the dissent seizes upon undermines Tonn’s
16 UNITED STATES V. BONTEMPS
central and well-supported testimony that Tonn observed on
Bontemps a bulge that was “obviously” suggestive of a
concealed firearm. The dissent’s related contention that we
rely on “facts not found in the record” is unfortunate and
completely inaccurate. Everything we have set forth comes
from the record below. 2
The officers’ bodycam footage also clearly supports
Tonn’s testimony. This footage is not necessary to our
holding, but we note it as corroborative. The district court
found, and the parties do not dispute, that the seizure began
when the officers ordered the men to stop. The bodycam
footage for the most part depicts events after the seizure had
already occurred. But we agree with the district court that
this footage plainly supports Tonn’s testimony because it
shows an obvious bulge on Bontemps’s sweatshirt that
distinctly resembles the shape of a firearm. And contrary to
the dissent, the bodycam footage shows a gun-shaped bulge
both when Bontemps’s hands were raised and when they
were down. In short, this was simply not a case where
Bontemps was stopped for a nondescript bulge, with officers
lucking upon a gun. Cf. Job, 871 F.3d at 861.
2
Other points the dissent advances confirm its departure from
governing legal standards. For example, the dissent finds it “peculiar
that Detectives Barreto and Tonn did not say anything to each other about
their suspicions” before initiating the stop. But there is no record on this
point one way or the other (the bodycam footage starts after the officers
decide to initiate the stop and the officers were not asked about their
discussions with each other). In any event, the police reports and
testimony clearly show that both officers independently believed a stop
was justified. There is also no requirement that officers making split-
second decisions in the field first verbally memorialize their mutual
agreement to stop persons whom they validly believe are violating the
law.
UNITED STATES V. BONTEMPS 17
Bontemps seeks to avoid this conclusion by citing
statistics concerning frisks in other jurisdictions. See David
Rudovsky & David A. Harris, Terry Stops-and-Frisks: The
Troubling Use of Common Sense in a World of Empirical
Data, 79 Ohio State L.J. 502, 541–42 (2018). For example,
he cites a study of 2.3 million frisks for weapons in New
York City between 2004 and 2012, in which weapons were
reportedly uncovered in 1.5% of the searches. Id. at 541;
Floyd v. New York City, 959 F. Supp. 2d 540, 558 (S.D.N.Y.
2013). Bontemps also cites data from New York City in the
years 2014 to 2016, reportedly showing that “of 220 frisks
based on a ‘bulge,’ only one weapon was seized, a hit rate of
less than 0.5%.” Rudovsky & Harris, supra, at 542.
These statistics do not undermine the district court’s
factual findings here. The statistics were not introduced
below, and we generally “consider only the district court
record on appeal.” Lowry v. Barnhart, 329 F.3d 1019, 1024
(9th Cir. 2003). Regardless, they do not change the outcome
of this case. Even taking the data at face value, statistics on
the percentage of weapons recovered during Terry stops
generally (and in a different jurisdiction) say nothing about
whether the officers in this case had reasonable suspicion to
detain Bontemps based on the “very large and obvious bulge
in Mr. Bontemps’ sweatshirt” that a trained detective
observed. And Bontemps nowhere explains whether the
data he cites concerning “220 frisks based on a bulge”
involved bulges as distinctive as the one here.
Permitting aggregate data to dictate the result in this case
would risk abrogating our duty to examine “each case to see
whether the detaining officer has a ‘particularized and
objective basis’ for suspecting legal wrongdoing.” Arvizu,
534 U.S. at 273 (quoting Cortez, 449 U.S. at 417). We can
acknowledge that the studies Bontemps cites raise valid
18 UNITED STATES V. BONTEMPS
questions, while at the same time holding that the district
court in this case—based on the officer testimony it
permissibly credited—did not err in denying Bontemps’s
motion to suppress.
For the foregoing reasons, the judgment is
AFFIRMED.
GWIN, District Judge, dissenting:
The Terry reasonable suspicion standard requires
Detective Tonn have had an objective and particularized
basis to believe that Bontemps had committed or was about
to commit a crime.
The district court found a reasonable suspicion for the
stop based on only one detective’s testimony that he saw a
non-descript sweatshirt bulge as Bontemps walked on the
opposite side of the street. The detective said that he
believed the bulge suggested a concealed firearm.
The detective said he could see the bulge from a vehicle
passenger seat travelling in the opposite direction. The
detective testified that he did not see any exposed weapon
barrel or other firearm part. Instead, he testified that he only
saw a non-descript sweatshirt bulge.
The detective stopped Bontemps even though the
officers had received no background reports of any criminal
activity. The detective stopped Bontemps mid-afternoon
and in a general mixed commercial-residential area.
UNITED STATES V. BONTEMPS 19
Without other corroborating evidence, a sweatshirt bulge
alone did not give an objectively reasonable and
particularized suspicion to stop Bontemps. I respectfully
dissent.
I
On April 18, 2018, near 4:00 pm, Vallejo Detectives
Barreto and Tonn patrolled a mixed commercial-residential
area in a police SUV. Detective Barreto drove. Detective
Tonn rode in the passenger seat.
The majority and the district court find the detectives
gave consistent travel path descriptions before the stop and
arrest location. The majority finds “Tonn merely began his
account once the officers had already made their first U-turn
and were driving westbound” 1 However, the detectives’
accounts are not consistent. 2
1
Maj. Op. 4 n.1.
2
Detective Barreto’s police report statements conflict with Barreto’s
suppression hearing testimony. In his report, he wrote that the detectives
were driving on Robles Way, approaching Glen Cove Parkway. At the
suppression hearing, he testified that the detectives waited at a red light
on Glen Cove Parkway and made a left turn onto Robles Way. Similarly,
in his police report, he wrote that the detectives drove past the group
once, making a single U-turn to approach the group from behind. But at
the hearing, Barreto testified that the detectives drove past the group
twice, making two U-turns before pulling over to stop the group.
Moreover, some of Detective Tonn’s testimony simply cannot
square with Detective Barreto’s testimony. For example, Detective Tonn
testified that when he noticed the group the detectives “were driving
slow” because “[they] had just pulled out of a parking lot,” not that they
had just made a U-turn. Likewise, Detective Tonn testified that
“Detective Barreto slowed down fairly rapidly, even though he wasn’t
20 UNITED STATES V. BONTEMPS
The detective testimony differences do not end with the
path to the stop. The detectives also relied on different
observations to justify the stop.
Before the stop, Detective Barreto did not notice
anything suspicious regarding Appellant Bontemps.
Instead, Barreto testified that he first passed Bontemps’s
group from behind. Detective Barreto testified that as the
detectives passed the group from behind, he looked right
from the driver’s seat, past Detective Tonn, out the window,
and noticed that Quinton Mills—and only Quinton Mills—
had something weighing down the front waist area of his
sweatshirt.
Only Detective Tonn testified to noticing anything
suspicious about Bontemps. And Tonn testified that
Detective Barreto had already driven down the street, made
a U-turn to drive back facing the Bontemps’s group before
he observed anything suspicious regarding Bontemps.
After making the U-turn to face Bontemps from across
the road, Detective Tonn testified that he looked left from
the passenger’s seat, past Barreto, out the front window,
across the road, and noticed that two men in the group had
going fast, so we could look at [the group.]” But Detective Barreto never
mentions anything about slowing down the SUV to get a closer look.
Instead, Barreto testified that after initially observing the group, that “[a]t
that time I turned the car around, came back at the individuals and circled
back for [sic] around behind them.”
To me, it does not seem that the detectives began their accounts at
different points in time. Rather, it seems that the detectives have
different accounts.
UNITED STATES V. BONTEMPS 21
sweatshirt bulges—Quinton Mills and Appellant Tamaran
Bontemps.
It is peculiar that Detective Tonn saw a bulge in
Bontemps’s sweatshirt when Detective Barreto did not.
Detective Barreto noticed Mills as the SUV passed the group
from behind and on the same side of the road; Detective
Tonn noticed Mills and Bontemps as the SUV passed the
group on the opposite side.
It is even more peculiar that Detectives Barreto and Tonn
did not say anything to each other about their suspicions.
Neither detective testified that the other detective said
anything about firearm concerns before initiating the stop.
Indeed, Detective Barreto states in his report that the first
time he noticed and alerted Detective Tonn of Bontemps’s
firearm was well after Bontemps had complied with the
detectives’ order to sit on the curb.
The detectives did give similar accounts of how the stop
and arrest unfolded.
Detective Barreto testified that he turned the SUV after
he suspected Mills, but not Appellant Bontemps, had a
concealed firearm. Detective Tonn agreed that Barreto made
a U-turn at one point. The detectives then approached the
Mills-Bontemps group from behind. The detectives agree
that Barreto exited the car first and called out for the men to
stop. And they agree that the men complied with the
detectives’ orders and sat on the curb.
Barreto and Tonn searched Mills and Bontemps and
discovered firearms on both men. The detectives arrested
both men.
22 UNITED STATES V. BONTEMPS
On July 17, 2018, Bontemps moved to suppress the
evidence as the product of an illegal search. After a
suppression hearing, the district court denied the suppression
motion. Bontemps appeals this denial.
In denying the suppression motion, the district court
found sufficient evidence to create a reasonable suspicion
that Bontemps was carrying a concealed firearm. Because
California allows so few concealed-carry permits, weapon
possession becomes presumptively illegal in California. 3
In addition to Tonn’s statements, the district court relied
upon Detective Barreto’s bodycam footage. 4 However, the
bodycam footage did not show Bontemps as Detective Tonn
would have seen Bontemps before the stop—across the road
and while Bontemps walked opposite Tonn’s direction.
Instead, the district court relied upon on footage where
Bontemps’s arms are raised from his side. The district court
found that the footage “confirms that there was a bulge on
the left side of Bontemps’s jacket, and that the bulge was
visible from inside the patrol car.”
The majority concludes that the district court did not
clearly err when it found, and based upon Tonn’s testimony
alone, that Bontemps’s sweatshirt’s nondescript bulge
created reasonable suspicion to stop Bontemps. 5
3
See Foster v. City of Indio, 908 F.3d 1204, 1216 (9th Cir. 2018).
4
“Detective Barreto testified that he turned on his bodycam shortly
before exiting the patrol vehicle.” United States v. Bontemps, No. 18-
099, at 5 (E.D. Cal. Oct. 19, 2018) (order denying motion to suppress).
5
Maj. Op. 13–14.
UNITED STATES V. BONTEMPS 23
I disagree that sufficient evidence supported a reasonable
suspicion for the Terry stop.
II
The majority’s reasonable suspicion analysis is
mistaken.
Today, the majority holds that “a bulge suggestive of a
firearm can be sufficient to create reasonable suspicion, and
that in this case there was ample evidence from which to
conclude that Bontemps’s ‘obvious bulge was likely a
concealed firearm.” 6 This “ample evidence” is “Detective
Tonn’s testimony that Bontemps had a ‘very large and
obvious bulge’ on his sweatshirt that likely indicated a
concealed firearm.” 7
A sweatshirt bulge alone, especially one as non-descript
as here, and without any associated suspicious conduct or
circumstances cannot create a reasonable suspicion of
criminal activity.
Detective Tonn provides limited support for his
conclusion that Bontemps’s bulge was a concealed firearm.
In his police report, Tonn wrote: “[Co-Defendant] Mills
had something very heavy sagging in his front sweater
pocket. The weight appeared greater than a cell phone and
was consistent with a firearm. Bontemps had a bulge on his
left waist/side area.” Detective Tonn’s report says that
6
Maj. Op. 15.
7
Maj. Op. 8–9.
24 UNITED STATES V. BONTEMPS
Mills’s bulge was consistent with a firearm, but not
Bontemps’s.
At the suppression hearing, Tonn testified that “[t]wo of
the persons in the group had bulges in parts of their body
consistent with my training and experience as a police
officer, consistent with carrying a firearm in public[.]” He
testified, “I saw Mr. Bontemps, he had a very obvious bulge
on his left side just above the waist area, kind of halfway
maybe between his waist and his left armpit.” Later in the
hearing, Tonn reiterated that there was a “very large and
obvious bulge in Mr. Bontemps’s sweatshirt on his left side
above his waist[.]”
Detective Tonn concluded that Bontemps’s sweatshirt
bulge was a firearm bulge, not because it was distinctly
shaped or plainly appeared to be a firearm, but because the
bulge was located in a position that Tonn believed consistent
with carrying a firearm in public.
The detectives found Bontemps cradled a firearm in a
shoulder holster. In the broad majority of firearm cases,
shoulder holsters seldom see use. Bulges in the side-chest
area could be various innocuous items.
The majority takes issue with my characterizing
Bontemps’s bulge as non-descript. But the record supports
the characterization.
Compare Detective Barreto’s description of Mills’s
bulge with Detective Tonn’s description of Bontemps’s
bulge.
In the police report filed on arrest day, Detective Barreto
wrote about Mills, “I saw that there was a noticeable bulge
in this pocket and it was in the shape that appeared to be a
UNITED STATES V. BONTEMPS 25
firearm.” Likewise, Barreto testified about Mills, “[a]s we
passed by, I looked to my right and saw a subject wearing a
sweater with a front pocket. In the front pocket, it appeared
there was the shape of like a handgun sort of pressing down
on the pocket from the inside.” Barreto states that Mill’s
bulge was firearm shaped.
Contrastingly, Tonn never describes Bontemps’s bulge
as firearm shaped.
The majority emphasizes Tonn described Bontemps’s
bulge as obvious. 8 But Detective Tonn never described the
bulge as obviously a firearm. The majority also relies on the
detectives’ bodycam footage. The majority states “ [the]
footage plainly supports Tonn’s testimony because it shows
an obvious bulge on Bontemps’s sweatshirt that distinctly
resembles the shape of a firearm.” 9
But the bodycam footage is not what Detective Tonn saw
before the stop. Every day we see individuals walking down
sidewalks. Almost never do we see people strolling down
sidewalks with their arms raised in a surrender position.
As the majority acknowledges, “[t]he bodycam footage
for the most part depicts events after the seizure had already
occurred,” and after the point at which the Fourth
Amendment requires reasonable suspicion for a stop. 10
Moreover, the bodycam footage does not show
Bontemps’s position when Tonn made his observations.
8
Maj. Op. 13–15.
9
Maj. Op. 16 (emphasis added).
10
Maj. Op. 16.
26 UNITED STATES V. BONTEMPS
Rather, it shows Bontemps walking towards the detectives,
within one car lane width and within 12 feet, and with his
hands out at his side.
Further, the bodycam footage was not taken from the
passenger seat of the patrol car, through the front window,
past Officer Barreto, and across the road. Instead, it shows
the perspective from a standing and nearby officer.
Contrary to the majority’s insistence, this is a case where
an individual was stopped for a non-descript bulge with
officers lucking upon a gun. 11
In this Terry stop, context is crucial. The stop occurred
at 4:00 pm on a sunny day near a commercial area.
Detectives Barreto and Tonn had received no earlier reports
of nearby criminal activity. 12 The four detained individuals
simply walked down a street in an otherwise non-threatening
manner. No other identified activity supported suspicion
that criminal activity was afoot.
In my view, seeing a non-descript bulge without more
should not allow police officers to stop and frisk citizens.
And the majority’s holding gives license to stop and frisk
11
Maj. Op. 16.
12
The majority states that “our prior cases ‘have given significant
weight to an officer’s observation of a visible bulge in an individual’s
clothing that could indicate the presence of a weapon.’” Maj. Op. 9. In
all the cases the majority cites, there was nearby criminal activity in
addition to the suspect’s bulge. See United States v. Flatter, 456 F.3d
1154, 1155–1156 (9th Cir. 2006) (mail theft); United States v. Alvarez,
899 F.2d 833, 835 (9th Cir. 1990) (bank robbery); United States v. Allen,
675 F.2d 1373, 1377–1379 (9th Cir. 1980) (drug trafficking); United
States v. Hill, 545 F.2d 1191, 1192–1193 (9th Cir. 1976) (bank robbery).
UNITED STATES V. BONTEMPS 27
any citizen based upon nothing more than officer testimony
that the officer had seen a bulge.
The majority brushes aside studies suggesting that
officers are generally bad at predicting whether a suspect is
armed and studies suggesting that reliance upon a bulge
poorly predicts whether that suspect is actually armed.
One study looked at 2.3 million 2004–2012 New York
City weapons frisks. There, officers discovered weapons in
only 1.5% of frisks. 13
Another study analyzed 220 2014–2016 Philadelphia
weapons frisks based on visible bulges; In the 220 frisks,
police seized only one weapon. 14 The Philadelphia study
suggests that bulges alone poorly associate with firearm
possession 15
The majority questions the study relevance by arguing
that “Bontemps nowhere explains whether the data he cites
concerning ‘200 frisks based on a bulge’ involved bulges as
distinctive as the one here.” 16 But as discussed above, if the
majority disregarded the bodycam footage, as it should, then
there would be no evidence to suggest that the bulge
Detective Tonn saw in this case was anything special.
13
Floyd v. New York City, 959 F. Supp. 2d 540, 558–559 (S.D.N.Y.
2013).
14
David Rudovsky & David A. Harris, Terry Stops-and-Frisks: The
Troubling Use of Common Sense in a World of Empirical Data, 79 Ohio.
St. L.J. 502, 541–42 (2018).
15
Id.16
Maj. Op. 17.
28 UNITED STATES V. BONTEMPS
Ultimately, the majority concludes that “[t]hese statistics
do not undermine the district court’s factual findings here.” 17
Maybe so. But they do undermine the legal sufficiency of
those factual findings. It is imprudent to sanction a rule that
allows a mere bulge to supply reasonable suspicion.
Especially when the bulge does not accompany other
suspicious factors.
In deciding this case, the majority misses an appropriate
de novo reasonable suspicion review. It improperly relies on
irrelevant bodycam footage and crafts a rule based on facts
not found in the record.
I respectfully dissent.
17
Maj. Op. 17.