Ninth Circuit Blog: Case o' The Week: Battle of the Bulge -- Bontemps, Terry and Reasonable Suspicion from "Gun Bulges"

“Gun” bulge spotted?

Laissez les bon temps rouler (for the cops, that is . . .).

United States v. Bontemps, 2020 WL 6040044 (9thCir. Oct. 13, 2020), decision available here.

Players: Decision by Judge Bress, joined by Judge R. Nelson. Compelling dissent by D.J. Gwin. Hard-fought appeal by ED Cal AFPD Ann C. McClintock.

Facts: At 3:51 pm, Vallejo cops saw four African American men walking on a road in a mixed commercial / residential area. Id. at *1. One detective claimed to have seen what appeared to be a concealed gun in the pouch pocket of the sweatshirt of a man named, “Mills.” Id. A different officer, Detective Tonn, claims to have seen a “very obvious bulge” on the left side of a man named Bontemps. Id. The bulge was just above Bontemps waist area, halfway between his waist and armpit. Id. at *2. Detective Tonn believed Bontemps was carrying a concealed gun.

The detectives stopped the men, found a gun in Mills’ pocket, and a Glock in a shoulder holster on Bontemps’ left side. Id.

Bontemps was charged with § 922(g) and brought a suppression motion. After an evidentiary hearing, the court denied the motion, finding reasonable suspicion for the stop. Id.

Bontemps entered a conditional plea that reserved his right to appeal the district court’s denial of his motion to suppress. Id. at *3.

Issue(s): “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.” Id.

Held: “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.” Id. at *1.

Of Note: In a compelling dissent, District Judge Gwin questions the “reasonable suspicion” for this mid-afternoon stop, when there was no criminal activity and the detective only saw “a non-descript sweatshirt bulge.” Id. at *7. The DJ details the inconsistent testimony in the detectives’ accounts, and questions the use of bodycam footage that did not show Bontemps as he looked at the time of the stop. Id. at *9. He concludes, “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.” Id. at *10.

Given Black Lives Matter and the growing societal awareness of the reality of race-based stops, it is disappointing to see the Ninth expand the “bulge” bases to permit the stops of black men who are not engaged in criminal activity, who are walking on a public street in the middle of the afternoon (an unwritten but obvious concern animating DJ Gwin’s dissent).

Read Judge James Gwin’s dissent for remarkable stats on how infrequently “bulge” searches actually produce guns, id. at 11. Statistically speaking, “bulge searches” are just pretexts to justify deeply troubling stops.

How to Use: Wait – isn’t there a whole line of good law rejecting reasonable suspicion as a basis to search for “drug bulges?”

There is indeed. See, e.g., United States v. Job, 871 F.3d 852, 861 (9th Cir. 2017).

Judge Bress is “mindful” of concerns about stops based on “gun bulges,” but goes on to try to distinguish the “drug bulge” search caselaw from the Ninth’s new tolerance of a “gun bulge” exception. Id. at *5. Putting aside whether that is a convincing distinction, beware there are new “bulge” categories that appear to now exist in the Ninth: drug bulges are not sufficient, but “gun” bulges (may) establish reasonable suspicion for a stop and Terry pat-down.

For Further Reading: Terry and its progeny rely on cops’ “common sense.” For a great article providing “empirical data that can substantiate or call into question the predictive value of these ‘common sense’ facts,” and calling for courts to “adjust their perceptions accordingly” when reviewing Terry stops, see Terry Stops-and-Frisks: The Troubling Use of Common Sense in a World of Empirical Data, available here.