Legal possession of ammunition raises risk to society that justifies an arrest of the driver?

Possession of ammunition. 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.

Although the possession of ammunition was not illegal in Arizona, the
extremely large volume of ammunition here raises risks to society that needed to be assessed more carefully and could not be done by a lone state trooper. The federal authorities, with their special expertise and databases, were properly invited to assess the situation before Guerrero was sent on his way with the ammunition. It was reasonable for Trooper Amick to believe this, and reasonableness is indeed the touchstone of the Fourth Amendment so far as searches and detentions are concerned.

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.

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.

Full case here: Possession of ammunition. UNITED STATES OF AMERICA v. SERGIO GUERRERO, — F.4th — (2022), https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/02/21-10248.pdf