Sunday, November 22, 2020

Case o' The Week: Cop "Opens the Door". . . to Suppression - Ngumezi and Cop-Entry into Cars without P.C.

Fourth alive and well, at S.F. Shell . . .

United States v. Ngumezi, 2020 WL 6814674 (9th Cir. Nov. 21, 2020), decision available here.

Players: Decision by Judge Miller, joined by Judge Hunsaker and visiting D.J. Schlitz.

  Big win for ND Cal Appellate AFPD Steven Koeninger, with briefing help from (former) AFPD Jon Abel (now a U.C. Hastings Associate Prof).

 Facts: Ngumezi was legally parked, getting gas, at a San Francisco station )(pictured above). Id. at *1. [Ed. Note: Malik Ngumezi is a young black man].

  S.F. Police Officer Kolby Willmes saw the car had no plates, and decided to investigate. Id. In reality, Mr. Ngumezi had recently purchased the car and had a bill of sale affixed to the windshield. Id. [At that time, a lawful alternative to paper plates].

  Ngumezi declared that Officer Willmes opened the passenger side door without permission and asked Ngumezi for his license and vehicle registration. Id.

  Officer Willmes [who conspicuously did not activate his body camera] said he “did not remember” if he opened the door. Id.

  The officer learned Ngumezi did not have a driver’s license: an inventory search then produced a gun inside the car. Id.

   Ngumezi was charged with being a felon in possession of a firearm. The district court denied the suppression motion, and refused to conduct the requested evidentiary hearing.

  (Because this was the Northern District of California), the defense went through a stip facts trial to preserve the issue for appeal. Id. at *2.

 Issue(s): “On appeal, Ngumezi challenges only the denial of the motion to suppress . . . . His principal argument is that whether or not Officer Willmes had reasonable suspicion at the time he opened the door, opening the door and leaning inside constituted a search that violated the Fourth Amendment because it was not authorized by any exception to the warrant requirement.” Id.

  “The key facts are not disputed: Ngumezi says that Willmes opened the car door and leaned into the car, and Willmes does not specifically deny that that is what he did. We therefore must consider whether police officers who have reasonable suspicion sufficient to justify a traffic stop – but who lack probable cause or any other particularized justification, such as a reasonable belief that the driver poses a danger – may open the door to a vehicle and lean inside.” Id.

 Held: “We conclude they may not.” Id.

   “[We do not] see how courts could administer a test that would require them to distinguish between Willmes leaning into the passenger-side area of Ngumezi’s car and, say, an officer crawling into the back of a car to look under the seats. Instead, we apply a bright-line rule that opening a door and entering the interior space of a vehicle constitutes a Fourth Amendment search.” Id. at *3.

  “Nothing about this case calls for a remedy other than the typical remedy for a Fourth Amendment violation, which is the exclusion of evidence discovered as a result of that violation from criminal proceedings against the defendant.” Id. at *5 (internal citations and quotations omitted). 

Of Note: To the Ninth’s frustration, the government put all of its Fourth Amendment eggs in one appellate basket. The government complained that the Court should not “apply the exclusionary rule because the benefits of deterrence do not outweigh the social costs of suppression.” Id. at *5. 

The Hon. Judge Miller
Judge Miller makes short work of this pitch, explaining that the “flagrancy of the government’s conduct” is only relevant to the attenuation doctrine, but is not a free-standing basis for avoiding suppression. See also United States v. Garcia, 974 F.3d 1071, 1076-82 (9th Cir. 2020).

   Use Ngumezi to knock down the government’s boilerplate “flagrancy” argument when next it arises.


How to Use: [Ed. Note: the author of this memo litigated the suppression motion in district court]. While the Ngumezi Appellate AFPDs did a remarkable job, the government also helped to deliver this win. 

  Turn to this opinion for Judge Miller’s intellectually-honest (albeit exasperated) refusals to do the government’s work for it (on “forfeiture” of defense arguments, and on (non-asserted) theories of attenuation).                                            

For Further Reading: Mr. Malik Ngumezi filed a complaint against SF Police Officer Kolby Willmes, Star 1216, alleging that this was a race-based stop, charging failure to comply with the San Francisco Police Department body camera policies, and Fourth Amendment violations.

  The San Francisco Public Defender recently made public an important service that helps track these cop complaints. See “Copwatch” web page here




Image of SF Shell Station from

 Image of the Honorable Judge Miller from 

Steven Kalar, Federal Public Defender N.D. Cal. Website at



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