United States v. Tamaran Bontemps
977 F.3d 909
| 9th Cir. | 2020Background:
- Vallejo detectives Tonn and Barreto observed four men walking; after a U-turn and slowing the patrol SUV, they noticed apparent bulges on two men.
- Detective Tonn testified he saw a “very large and obvious bulge” on Bontemps’s left side above the waist, which he believed (based on training/experience) indicated a concealed firearm.
- Officers ordered the group to sit; Detective Barreto recovered a Glock from co-defendant Mills; Bontemps became argumentative, was tasered, and was searched.
- Search of Bontemps revealed a loaded .40 Glock in a left-side shoulder holster; the gun’s serial number was obliterated; officers learned Bontemps was a felon on probation with an outstanding warrant.
- Bontemps moved to suppress the gun as the fruit of an unconstitutional stop; the district court denied the motion, and the Ninth Circuit affirmed, holding the observed bulge provided reasonable suspicion.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a visible bulge suggestive of a gun can justify a Terry stop in California | Bulge alone is unreliable; could be innocuous and cannot, without more, justify a stop | In CA carrying concealed firearms is presumptively unlawful; a bulge that appears to be a gun can create reasonable suspicion | A bulge that appears to be a concealed firearm can supply reasonable suspicion in jurisdictions where concealed carry is presumptively illegal (California) |
| Whether the officers had reasonable suspicion to stop Bontemps based on Tonn’s observation | The bulge was non‑descript, seen from across the street, without corroborating suspicious conduct; bodycam post‑seizure footage is not probative | Tonn’s credible testimony and corroborative bodycam footage support that the bulge was “very large and obvious” and gun‑shaped | District court did not clearly err in crediting Tonn; totality of circumstances gave reasonable suspicion to stop |
| Whether the district court clearly erred in crediting officer testimony and relying on the record | Officer testimony was inconsistent and the bodycam did not capture pre‑stop viewpoint; statistics show bulge stops rarely recover weapons | Credibility determinations are for the factfinder; officers’ accounts and bodycam corroboration support the finding | Appellate court gives deference to district court credibility findings and affirmed denial of suppression |
| Scope/weight of statistical studies about bulge searches | Empirical studies show low hit rates for bulge‑based frisks and caution against validating bulge stops | Aggregate statistics do not override case‑specific, particularized reasonable suspicion based on officer training and observations | Studies do not undermine the district court’s factbound finding; reasonable suspicion assessed case‑by‑case |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (establishes stop‑and‑frisk reasonable suspicion standard)
- Illinois v. Wardlow, 528 U.S. 119 (2000) (officer may stop when reasonable suspicion that criminal activity is afoot)
- Ornelas v. United States, 517 U.S. 690 (1996) (review standard: de novo for legal question, clear‑error for underlying facts)
- United States v. Arvizu, 534 U.S. 266 (2002) (totality of circumstances governs reasonable suspicion)
- United States v. Cortez, 449 U.S. 411 (1981) (requires particularized and objective basis for suspicion)
- Pennsylvania v. Mimms, 434 U.S. 106 (1977) (bulge can justify officer safety measures)
- Foster v. City of Indio, 908 F.3d 1204 (9th Cir. 2018) (visible indication of concealed firearm supports reasonable suspicion in California)
- United States v. Vandergroen, 964 F.3d 876 (9th Cir. 2020) (possessing a concealed weapon is presumptively unlawful in California and can support a stop)
- United States v. Flatter, 456 F.3d 1154 (9th Cir. 2006) (gives weight to officer observation of visible bulge indicative of weapon)
- United States v. Job, 871 F.3d 852 (9th Cir. 2017) (distinguishes non‑descript bulges/drug bulges from weapon‑shaped bulges)
- United States v. Guzman‑Padilla, 573 F.3d 865 (9th Cir. 2009) (appellate review gives deference to district court fact findings)
- United States v. Elsoffer, 671 F.2d 1294 (11th Cir. 1982) (unusual size/shape of bulge may supply probable cause in special circumstances)