author: GOULD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Hector SOTO-ZUNIGA, Defendant-Appellant.
    No. 14-50529
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 5, 2016 Pasadena, California
    Filed September 16, 2016

      Paul Allen Barr (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
    Kyle B. Martin (argued), Assistant United States Attorney; Peter Ko, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee.
    Before: ALEX KOZINSKI, WILLIAM A. FLETCHER, and RONALD M. GOULD, Circuit Judges.
   OPINION

GOULD, Circuit Judge:

Hector Soto-Zuniga appeals his jury conviction for possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Soto-Zuniga was arrested at a checkpoint in San Clemente, California, after Border Patrol agents found 2.9 kilograms of methamphetamine on the floor of the backseat of his car during a search. Before the first trial, which ultimately resulted in a hung jury and a mistrial, Soto-Zuniga filed motions to suppress the drug evidence. In one of the motions he argued that the checkpoint was unconstitutional and requested discovery of the checkpoint’s arrest and search statistics. The district court denied these motions.

At both his first trial and his subsequent re-trial, Soto-Zuniga testified that before being stopped at the checkpoint, he had given a ride to three teenagers he did not know as a favor to his cousin’s husband, Christian Rios Campos. The government stipulated that Rios was a known drug smuggler who recruited juveniles to smuggle drugs into the United States, and Soto-Zuniga’s primary defense was that the teenagers had planted the drugs in the car without his knowledge. Before the second trial, Soto-Zuniga moved for discovery of the government’s investigation of Rios’s drug smuggling operation, which may have identified the three teenagers by name. This, too, was denied. Soto-Zuniga was convicted after the second jury trial and sentenced to six years in prison.

Soto-Zuniga raises several arguments on appeal, and we conclude that two have merit: (1) the district court abused its discretion by denying Soto-Zuniga’s pretrial motion for discovery relating to the constitutionality of the San Clemente checkpoint, and (2) the district court abused its discretion by denying Soto-Zuniga’s motion for discovery on Rios’s drug smuggling operation. We have jurisdiction under 28 U.S.C. § 1291, and we reverse the district court’s rulings on the discovery motions, vacate the conviction, and remand for further proceedings consistent with this opinion.

I

On June 29, 2013, at around 3:50 p.m., Soto-Zuniga was stopped in his car at a Border Patrol checkpoint near San Clem-ente, California. U.S. Border Patrol Agent Ivan Favela questioned Soto-Zuniga, who told Agent Favela that he was coming from Tijuana. Agent Favela testified at trial that. Soto-Zuniga appeared nervous and that his hands were shaking. Agent Favela directed Soto-Zuniga to a secondary inspection area. There, two additional agents, Raymond Rabreau and Brian Chang, approached Soto-Zuniga’s car. Soto-Zuniga presented Agent Chang with a Permanent Resident Card and told Agent Chang that he was traveling to Los Angeles from Tijuana. Agent Chang later reported that he noticed Soto-Zuniga’s hand and leg shaking during the exchange. Based on this nervous behavior, Agent Chang asked Soto-Zuniga to step out of the car. Agent Chang said .that when he asked Soto-Zuniga if he-had any contraband in his car, Soto-Zuniga looked down before answering “no.” Agent Chang then asked Soto-Zuniga to open the trunk of his car, and he complied. According to Agent Chang, Soto-Zuniga continued to fidget during their exchange. Agent Rabreau, who approached Soto-Zuniga’s car from the passenger’s side, later reported that he smelled marijuana coming from the vehicle, and he observed a “black and mild cigarillo” in the car’s ashtray, as well as remnants of tobacco. Agent Rabreau reported that, based on his training and experience, he suspected Soto-Zuniga had been smoking marijuana in the car.

Next, a third agent at the secondary checkpoint, Anthony Rodgers, also noticed that Soto-Zuniga was acting nervously and observed that the carotid artery in his neck was “bounding.” Agent Rodgers wrote in his report that Soto-Zuniga admitted to smoking marijuana in the car with a friend. Agent Rodgers also reported that he performed a Terry frisk of Soto-Zuniga, but found no weapons.

Other agents soon approached the secondary inspection area, including Agents Favela and Buck. Agent Buck later reported that he questioned Soto-Zuniga about smoking marijuana, and that Soto-Zuniga denied ever smoking marijuana, but admitted that he had friends that smoked. Agent Buck reported that he then asked Soto-Zuniga if he allowed friends to smoke marijuana in his car, and Soto-Zuniga “became very defensive and became visibly agitated with [his] questioning.” Agent Buck also wrote that when he told Soto-Zuniga- that his car would be searched because of the smell of marijuana, Soto-Zuniga “adopted a defeated body posture.”

Agent Rodgers’s report reflects that, due to Soto-Zuniga’s alleged admission that he had smoked marijuana in the car and the smell that Agent Rabreau reported, agents decided to search Soto-Zuniga’s car at about 4:25 p.m., approximately 35 minutes after the initial stop. In searching the car, Agent Favela recovered four bundles wrapped in brown tape from behind the driver’s seat. The bundles were under a floor mat, which was also covered by a sweater. A field test indicated that the bundles contained methamphetamine, and Soto-Zuniga was arrested. Evidence at trial established that the bundles contained 2.9 kilograms of methamphetamine, with a street value of more than $80,000.

Soto-Zuniga was subsequently interviewed by Agent Kameron Korte, who testified that Soto-Zuniga waived his Miranda rights through the Spanish translation of another Border Patrol agent. During that interrogation, Soto-Zuniga told Agent Korte that his cousin’s husband, Christian Rios Campos, had called that morning and asked Soto-Zuniga to give a ride to three teenagers from Otay Mesa to San Ysidro in San Diego. Soto-Zuniga told Agent Korte that he picked up the teenagers at a McDonald’s in Otay Mesa and dropped them off at a Shell gas station close to a trolley station in San Ysidro. By the time Agent Korte contacted the McDonald’s, any video surveillance had been erased. Agent Korte never contacted the Shell station.

Soto-Zuniga was charged with possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Before trial, he filed a motion to suppress the drugs seized from his car, arguing that they were the fruits of an unlawful search and seizure. Soto-Zuniga contended that the agents lacked probable cause to detain him and search his car; specifically, he argued that nervousness alone was not sufficient to support probable cause, and that Agent Rabreau’s report that he smelled marijuana coming from the car was “unreliable” because no other agent reported the smell and no marijuana was recovered from the car. He also filed a motion challenging the constitutionality of the San Clemente checkpoint, arguing that the government was using the checkpoint as a pretext to search for controlled substances, not to control immigration. In an unsuccessful attempt to support that argument for his suppression motion, Soto-Zuniga also filed a motion seeking, inter alia, discovery of statistics regarding the number and types of arrests and vehicle searches at the San Clemente checkpoint.

The district court held an evidentiary hearing on the pretrial motions. At the hearing, Agent Rabreau testified that the main purpose of the San Clemente checkpoint was immigration inspection and that 90 percent of the arrests were immigration-related. He also detailed his account of the events that led to Soto-Zuniga’s arrest, including smelling marijuana coming from Soto-Zuniga’s car and seeing a “burnt blunt,” which he described as a burned marijuana-filled cigarillo, in the ashtray, as well as a small amount of loose tobacco, a “black & mild wrapper,” and a lighter. He testified that this was “consistent with marijuana paraphernalia.” Agent Rabreau also testified that the ear had four air fresheners, something “many smugglers use ... to mask the smell of their drug load.” He further testified that he believed Agents Chang and Buck smelled marijuana as well, and that the smell was the reason Agent Favela initially sent Soto-Zuniga to secondary inspection. On cross-examination, Agent Rabreau said that, to his knowledge, no marijuana was ever recovered from the car. Agent Ra-breau also testified that Soto-Zuniga had provided an “inconsistent route of travel,” but acknowledged that he did not include this information in his report.

In a declaration, Soto-Zuniga claimed that he had not smoked marijuana in five or more years and that' he had told Agent Buck that he did not smoke marijuana, Soto-Zuniga also said that he told Agent Buck that none of his friends had smoked marijuana in the car. When called to testify during the evidentiary hearing, Soto-Zuniga testified consistently with his declaration on these points.

The district court denied Soto-Zuniga’s motions to suppress and to compel discovery. The district court reasoned that “the sequence of events [in the agents’ reports] seems to be very consistent,” and that there was probable cause based on several factors, including the smell of the marijuana, Soto-Zuniga’s reported nervousness, the air fresheners, the loose tobacco, the cigarillo wrappers, and Agent Rodgers’s report that Soto-Zuniga admitted to him that he;had smoked marijuana in the car. The court noted-that the physical evidence was “where it nails the coffin here.” The court further noted that, while Agent Ra-breau was -the only agent who claimed to smell the marijuana, other agents reported that Agent Rabreau had told them he smelled marijuana at the scene so it was not “a post-arrest revelation.” The court also found that the testimony of Agent Rabreau, “with regard to his role, his experience in terms of his own arrests, and then his happening to be the conduit through which reports pass, all support [the conclusion that] the primary purpose of this checkpoint is immigration.” The case was set for trial.

Before the start of the first trial and after jury selection, an investigator for the defense obtained a social security number for Marisol Diaz, Soto-Zuniga’s cousin and the wife of Christian Rios - Campos. The investigator then got an arrest warrant for Diaz, which included a declaration from a Homeland Security Investigations agent that the government had arrested three teenagers on suspicion of trafficking drugs at the command of Rios. Defense counsel argued that this new information corroborated Soto-Zuniga’s account of events. The district court postponed the trial until the next day. Defense counsel next filed an emergency motion for a continuance to permit time to investigate the new information. The government stipulated to the information contained in the declaration, including that Rios had recruited teenagers to traffic drugs. The district court concluded that the stipulation was sufficient to meet the defense’s purpose, and denied the motion for a continuance as well as defense counsel’s subsequent motion for a mistrial.

During the trial, Soto-Zuniga sought specific jury instructions that differed from the Ninth Circuit pattern jury instructions on reasonable doubt. He also asked that the jury be instructed that the government must prove beyond a reasonable doubt that Soto-Zuniga “knew the substance [that he possessed with intent to distribute] was 2.92 kilograms of methamphetamine.” The district court rejected both suggestions in favor of the pattern jury instructions. Following the trial, the jury was unable to reach a unanimous decision, resulting in a mistrial.

Before the second trial, Soto-Zuniga requested discovery on the government’s investigation of Christian Rios Campos and Marisol Diaz, including any relevant information regarding the three teenagers who were arrested for trafficking at Rios’s command. The district court reviewed the written materials related to the government’s investigation and denied the motion, stating that any investigation of Rios was “collateral. Tt is irrelevant. It is predominately inadmissible in the forms in which you have it, and that’s the ruling.” The district court also said that discovery would extend the litigation and would present “a 403 problem[] in spades.” At the end of the second trial, the jury was instructed with the same jury instructions used in the first trial — after the district court noted that Soto-Zuniga had preserved all prior objections. The jury returned a guilty verdict.

At sentencing, Soto-Zuniga argued that the statutory maximum sentence should only be one year because the jury had not found that he had possessed a particular quantity of methamphetamine. The district court rejected this claim and sentenced Soto-Zuniga to 72 months (six years).

II

We review discovery rulings for abuse of discretion. United States v. Amlani, 111 F.3d 705, 712 (9th Cir. 1997). To reverse Soto-Zuniga’s conviction, we must find that the district court abused its discretion in denying his discovery motions, and that the error resulted in prejudice to his substantial rights, ie., that there is “a likelihood that the verdict would have been different had the government complied with the discovery rules.” United States v. de Cruz, 82 F.3d 856, 866 (9th Cir. 1996) (citation and internal quotation marks omitted).

A

We first address Soto-Zuniga’s argument that the district court abused , its discretion.in denying his motion for discovery of the San Clemente checkpoint search and arrest statistics. He contends that this evidence is necessary to determine whether the checkpoint itself is constitutional. We agree that, the district court abused its discretion in denying discovery that could have revealed an unconstitutional seizure and led to the suppression of the evidence that illicit drugs were found in Soto-Zuniga’s car.

The Fourth Amendment prohibits unreasonable searches and seizures. “It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment.” City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). As a general rule, a search or seizure is unreasonable unless it rests on individualized suspicion of wrongdoing. Id. at 37, 121 S.Ct. 447. But the Supreme Court has carved out an exception to this rule for checkpoint seizures that serve “special needs, beyond the normal need for law enforcement.” Id. (citation and internal quotation marks omitted); see also United States v. Fraire, 575 F.3d 929, 931-32 (9th Cir. 2009). In United States v. Martinez-Fuerte, which addressed the constitutionality of the San Clemente checkpoint, the Supreme Court identified immigration control as a valid purpose for stopping cars and posing questions without individualized suspicion. 428 U.S. 543, 556-64, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). The Court rejected a Fourth Amendment challenge to the checkpoint, recognizing “that maintenance of a traffic-checking program in the interior is necessary because the flow of illegal aliens cannot be controlled effectively at the border.” Id. at 556, 96 S.Ct. 3074. The Court also “stressed' the impracticality of the particularized study of a given ear to discern whether it was transporting illegal aliens, as well as the relatively modest degree of intrusion entailed by the stops.” Edmond, 531 U.S. at 38, 121 S.Ct. 447 (citing Martinez-Fuerte, 428 U.S. at 556-64, 96 S.Ct. 3074).

The constitutionality of immigration checkpoints, including the San Clemente checkpoint, was raised again nearly two decades later in a separate case before our Court. See United States v. Soyland, 3 F.3d 1312 (9th Cir. 1993). In Soyland, the defendants’ car was searched at an immigration checkpoint’s secondary inspection, revealing drug paraphernalia and small amounts of marijuana. Id. at 1314. A subsequent search of the defendants revealed 220 grams of methamphetamine and a scale. Id. The majority declined to address “the issue of whether checkpoint officers routinely overstep their authority by conducting pretextual narcotics searches,” noting that it had not been argued at trial nor on appeal. Id. Judge Kozinski dissented, voicing his concern that the San Clem-ente checkpoint and others like it may be violating restrictions on suspicionless searches. Id. at 1315-20 (Kozinski, J., dissenting). While recognizing that Martinez-Fuerte approved internal checkpoints for immigration control purposes, Judge Ko-zinski warned that “[t]here’s reason to suspect the agents working these checkpoints are looking for more than illegal aliens. If this is true, it subverts the rationale of Martinez-Fuerte and turns a legitimate administrative search into a massive violation of the Fourth Amendment.” Id. at 1316. He recommended remanding the case for a factual inquiry into “whether the policies, programs, directives and incentives put in place by the'government, or any customs and practices that have developed with the government’s tacit approval, have turned ... San Clemente into [a] general law enforcement checkpoint! ].” Id. at 1319 (footnote omitted).

Although Judge Kozinski’s dissent primarily discussed the searches that occur at the San Clemente checkpoint, his concerns are also relevant to the initial seizure—the vehicle stop—at issue in Soto-Zuniga’s case. In City of Indianapolis v. Edmond, the Supreme Court clarified that the constitutionality of suspicionless immigration checkpoints is governed by the same standard as administrative searches. 531 U.S. at 37-38, 121 S.Ct. 447. The Court also reaffirmed that checkpoints with the principal purpose of thwarting criminal activity do not comport with the Fourth Amendment, and noted that it had “never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing,” as opposed to purposes of “policing the border” or “ensuring roadway safety.” 531 U.S. at 38, 41, 121 .S.Ct. 447. The constitutionality of the San Clemente checkpoint turns on whether its “primary purpose” is to control immigration, as has been contended by the government, or rather is- to interdict drug trafficking. and other “ordinary criminal wrongdoing,” Id.) see also Fraire, 575 F.3d at 932 (“[T]he court must determine whether the primary purpose of the checkpoint was to advance the general interest in crime control. If so, theri the stop is per se invalid under the Fourth Amendment.” (internal citations, quotation marks, and alterations omitted)). -If the checkpoint’s primary purpose is to detect evidence of drug trafficking, then the initial seizure of Soto-Zuniga’s ear and person offended the Fourth Amendment and the drug evidence recovered from his car must be excluded as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

It is on this issue that the requested discovery is pertinent. Although the district court held an evidentiary hearing to determine the checkpoint’s primary purpose, the only evidence before it was the testimony of Agent Rabreau and several news articles, including a few detailing the interdiction of narcotics. Based on Agent Rabreau’s testimony that he had reviewed seizure and arrest records and that upwards of 90 percent of arrests were immigration related, the district court concluded that the checkpoint was constitutional and denied further discovery of the search and arrest statistics.

It may well be that Agent Rabreau’s experience and knowledge is consistent with the general practices at the San Clemente checkpoint. But there is a risk that the district court made its decision as if in part blindfolded, considering only one version of the evidence. Our system of criminal justice relies on an adversary sys-tern to help ensure that justice will be done.

Under Federal Rule of Criminal Procedure 16(a)(1)(E), .the government is required to produce, inter alia, documents or data “if the item is within the government’s possession, custody, or control and ... the item is material to preparing the defense.” The government, relying on United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), contends that Soto-Zuniga is not entitled to, discovery under this Rule because the evidence he seeks is not material to his defense against the government’s case-in-chief. Armstrong, which concerned discovery in a selective prosecution case, held that Rule 16(a)(1)(E) does not permit discovery of government documents in selective-prosecution claims because such discovery does not assist in “the preparation of their defense against the Government’s case in chief.” Id. at 463, 116 S.Ct. 1480. The Supreme Court in Armstrong analyzed the meaning of the term “defense” in the context of the Rule 16(a)(1)(E) and reasoned that “[wjhile it might be argued that as a general matter, the concept of a ‘defense’ includes any claim that is a ‘sword,’ challenging the prosecution’s conduct of the case, the term may encompass only the narrower class of ‘shield’ claims, which refute the Government’s arguments that the defendant committed the crime charged.” Id. at 462, 116 S.Ct. 1480.

Notwithstanding that language and guidance of the Supreme Court, we do not read Armstrong to preclude Rule 16(a)(1)(E) discovery related to the constitutionality of a search or seizure. In our view, the holding of Armstrong applies to the narrow issue of discovery in selective-prosecution cases. See id. at 471, 116 S.Ct. 1480 (Ginsburg, J., concurring) (“I do not understand the Court to have created a major limitation on the scope of discovery available under Federal Rule of Criminal Procedure 16. As I see it, the Court has decided a precise issue: whether the phrase ‘defendant’s defense,’[] as used in Rule [16(a)(1)(E) ], encompasses allegations of selective prosecution_ The Court was-not called upon to decide here whether Rule [16(a)(1)(E) ] applies in any other context, for example, to affirmative defenses unrelated to the merits.” (citation omitted and internal quotation marks omitted)).. Also, our post-Armstrong case law within the Ninth.. Circuit indicates that Rule 16(a)(1)(E) permits discovery related to the constitutionality of a search or seizure. In United States v. Cedano-Arellano, a defendant charged with cocaine smuggling sought discovery of the training records of the narcotics detector dog that “alerted” on his gas tank. 332 F.3d 568, 570 (9th Cir. 2003) (per curiam). We acknowledged that the materials at issue “were crucial to [the defendant’s] ability to assess the dog’s reliability, a very important issue in his defense, and to conduct an effective cross-examination of the dog’s handler” at the pretrial evidentiary -hearing. Id. at 571. We held that such materials were discoverable under Rule 16(a)(1)(E). Id,; see also United States v. Thomas, 726 F.3d 1086, 1096-97 (9th Cir. 2013) (defendant was entitled under Rule 16(a)(1)(E) to discovery of unredacted training and certification records of a narcotics . detector dog). Cedano-Arellano and Thomas support the conclusion that Rule. 16(a)(1)(E) permits discovery- to determine whether evidence in a particular- case was obtained in violation of the Constitution and ;is thus inadmissible.

The government argues that Cedano-Arellano and Thomas created a narrow “dog discovery” exception to the general rule that Armstrong establishes. The government points to our precedent in United States v. Chon, in which the defendants were convicted of theft and conversion of government property after they broke into a Naval facility and stole military equipment. 210 F.3d 990, 992 (9th Cir. 2000). The defendants were caught and charged as a result of a Naval Criminal Investigative Service (NCIS) investigation. Before the trial, the defendants moved for discovery on any activities of the NCIS and its predecessor agency that targeted civilians to bolster their claim that NCIS violated the Posse Comitatus Act (PCA), which prohibits the military from participating in civilian law enforcement. Id. at 992-93. We affirmed the district court’s determination that this request was a “far reaching fishing expedition.” Id. at 992. We held that the discovery request was “considerably broader” than any materials that could be relevant to the specific charges against the defendants and that the requested discovery did “not serve the purpose of fortifying the appellants’ ‘shield claims.’” Id. at 995.

Chon turns on the determination that the requested discovery had no relevance to whether NCIS violated the PCA in the defendants’ particular case. The materials sought were expansive, “implicating widespread and repeated violations of the PCA in the State of Hawaii and within the United States.” Id. at 994. By contrast, Soto-Zuniga sought discovery of whether he and his-automobile were unconstitutionally seized at the San Clemente checkpoint — an issue that .is central to his defense, because it could spell the difference in a suppression motion of the key physical evidence against him. Because the primary purpose of the San Clemente checkpoint was placed squarely at issue by Soto-Zuni-ga’s motion to suppress, defense counsel should have been allowed reasonable discovery relating to this primary purpose. After that discovery, and with all material evidence on the table, the district court would have been in a superior position to assess and decide the motion to suppress.

It has been forty years since the San Clemente checkpoint was upheld by the Supreme Court as constitutional. Martinez-Fuerte, 428 U.S. at 556-64, 96 S.Ct. 3074. Whether the primary purpose of the checkpoint has evolved from controlling immigration to detecting “ordinary criminal wrongdoing,” see Edmond, 531 U.S. at 42, 121 S.Ct. 447, is a question that is subject to discovery under Rule 16. Soto-Zuniga “should not have to rely solely on the government’s word that further discovery is unnecessary.” United States v. Budziak, 697 F.3d 1105, 1113 (9th Cir. 2012). We conclude that the district court abused its discretion by denying this discovery. See de Cruz, 82 F.3d at 866. However, because we do not have access to the records in question, we cannot determine the likelihood of whether Soto-Zuniga’s case would have had a different outcome had he been permitted discovery. Id. The proper course under such circumstances is to remand for discovery and an evidentiary determination. See Thomas, 726 F.3d at 1097-98; see also United States v. Doe, 705 F.3d 1134, 1151-52 (9th Cir. 2013). We reverse the district court’s denial of the discovery motion relating to the checkpoint’s arrest statistics, and remand for the district court to assess the constitutionality of the San Clemente checkpoint in further proceedings. See id. at 1097-98.

B

We also reverse the district court’s denial of discovery of the government’s investigation into Rios’s drug smuggling operation. The district court reviewed the documents submitted by the government, including reports from the agents involved in investigating drug smuggling operations, and concluded that the documents were irrelevant, that the documents were inadmissible because they relied on hearsay, and that permitting the requested discovery would unnecessarily extend the litigation in violation of Fed. R. Evid. 403. After reviewing the documents, we disagree both with the district court’s characterization of the documents and with its application of the law.

Soto-Zuniga has maintained that, before being stopped at the checkpoint, he gave a ride to three teenagers at the request of Rios. It is possible that discovery about the investigation might help Soto-Zuniga identify the teenagers to whom he gave a ride. Those persons might then provide direct testimony on whether one or more of them placed drugs in the car of Soto-Zuniga without his knowledge. And even if not, they might potentially give information that would lead to the identification of the persons in question. Soto-Zuniga’s defense was that the contraband must have been left in his car by the teenagers to whom he gave a ride because he knew nothing about it. If the persons are identified, they could potentially either support or contradict Soto-Zuniga’s claim that he did not knowingly or intentionally possess the drugs, an element of the crime of which he was convicted of by a jury. See 21 U.S.C. § 841(a)(1).

Under Federal Rule of Criminal Procedure 16(a)(1)(E), Soto-Zuniga has a right to discovery of documents that are “material to preparing the defense.” Materiality is a “low threshold; it is satisfied so long as the information ... would have helped” to prepare a defense. United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013) (citation and internal quotation marks omitted). The test is not whether the discovery is admissible at trial, but whether the discovery may assist Soto-Zuniga in formulating a defense, including leading to admissible evidence. See id. (“Information is material even if it simply causes a defendant to completely abandon a planned defense and take an entirely different path.” (citation and internal quotation marks omitted)); United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (“This materiality standard normally is not a heavy burden; rather, evidence is material as long as there is a strong indication that it -will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” (citations and internal quotation marks omitted)). The district court erred by finding that the documents were not material to the defense and were not discoverable because they were not admissible. We conclude that in this respect, the district court abused its discretion. See United States v. Hinkson, 585 F.3d 1247, 1261-63 (9th Cir. 2009) (en banc). We also conclude that there is a likelihood that the discovery of these documents would have identified the teenagers and changed the outcome of the trial, de Cruz, 82 F.3d at 866.

It has been said that it “behooves the government to interpret the disclosure requirement broadly and turn over whatever evidence it has pertaining to the case.” Hernandez-Meza, 720 F.3d at 768. While we recognize the sensitive nature of the documents in question, Soto-Zuniga’s interest in government materials that are pertinent to his defense takes precedence. We reverse the district court’s denial of Soto-Zuniga’s discovery motion, vacate the conviction, and remand with instructions to grant the motion. See Thomas, 726 F.3d at 1098. We also instruct the district court to consider the government’s request for a window of time before production to determine whether to continue to pursue this case, and to consider the government’s request for protective measures that would maintain the security of the information in the documents while allowing Soto-Zuniga to adequately prepare a defense.

Ill

Soto-Zuniga raises three additional arguments that we briefly address here.

First, he argues that the district court erred in denying his motion to suppress the drug evidence on the basis that the Border Patrol agents lacked probable cause to search the car. We review a denial of a suppression motion de novo and the underlying factual findings for clear error. See United States v. Rodgers, 656 F.3d 1023, 1026 (9th Cir. 2011).

Agents at a checkpoint may not search a private vehicle without a warrant unless they have consent or probable cause. See United States v. Ortiz, 422 U.S. 891, 896-97, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975). Probable cause exists if there is a fair probability that contraband or evidence of a crime will be found in a particular place based on a totality of the circumstances. United States v. Pinela-Hernandez, 262 F.3d 974, 978 (9th Cir. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

Here, the district court made factual findings that supported probable cause, including (1) that Agent Rabreau smelled marijuana, (2) that the car had multiple air fresheners, (3) that there was a cigarillo wrapper and loose tobacco in the car, (4) that Soto-Zuniga appeared to be agitated and nervous, and (5) that Soto-Zuniga admitted to smoking marijuana in the car. Even if neither marijuana nor marijuana paraphernalia, were ever recovered from the car, we conclude that the district court’s factual findings were not clearly erroneous. Agent Rabreau testified that he smelled marijuana and that there was physical evidence in the car that made him suspect drug use or trafficking. Deference must be given to the district court’s determination that Agent Rabreau was credible. See Anderson v. City of Bessemer, 470 U.S. 564, 573-76, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Also, other agents reported that Soto-Zuniga was agitated and at least; one agent reported that Soto-Zuniga had admitted to smoking marijuana in the car. We give due regard to the views of the agents, their recitals of what Soto-Zuniga said and did, and items seen in the car, once these have been confirmed by the district court’s factual findings.

Viewing the entire record, we determine that the district court’s account of 'the evidence is plausible, see id. at 573-74, 105 S.Ct. 1504, and that the totality of the circumstances supported probable .cause for the search. Cf. United States v. Koshnevis, 979 F.2d 691, 695 (9th Cir. 1992) (holding that a driver’s nervousness, inconsistent statements, and lies about hot possessing a trunk key or a weapon constituted probable cause to search the car’s trunk at an immigration checkpoint). We stress that under the Supreme Court’s standard in Illinois v. Gates, it is not certainty that is required to support a search or seizure but only probable cause, based on the total circumstances, that a search may yield evidence of crime. 462 U.S. at 238, 103 S.Ct. 2317. We affirm the district court’s denial of Soto-Zuniga’s suppression motion, insofar as it is based on a claimed lack of probable cause for the search of the ear.

Soto-Zuniga also argues that the district court erred by instructing the jury, using the Ninth Circuit pattern jury instructions, that “[a] reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation.” Manual of Model Criminal Jury Instructions § 3.5 (9th Cir. 2010 ed.). Soto-Zuniga contends that this phrasing interferes with the presumption of innocence. But this argument is foreclosed by our precedent. See United States v. Alcantara-Castillo, 788 F.3d 1186, 1198 n.4 (9th Cir. 2015) (noting that we have “repeatedly upheld the use of the Ninth Circuit model jury instruction on reasonable doubt” and collecting cases).

Soto-Zuniga also argues that knowledge of drug type and quantity is an element of possession with intent to distribute in violation of 21 U.S.C. §841. Soto-Zuniga contends that the Supreme Court’s decision in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), called our Circuit’s case law on this issue into question. However; we have held that “Alleyne does 'not alter our precedent that a defendant’s knowledge of the type and quantity of the controlled substance he imports is not such a fact, and therefore, not an element of the offense.” United States v. Jefferson, 791 F.3d 1013, 1016.(9th Cir. 2015). The mens rea for the statute at issue in Jefferson, 21 U.S.C.,§ 960, is the same as the mens rea for the statute at issue in this case — that the defendant acted “knowingly or intentionally.” We conclude that Soto-Zuniga’s knowledge of the type and quantity of the drugs found in his car is. not an element under 21 U.S.C. §841. See also United States v. Dado, 759 F.3d 550, 570 (6th Cir. 2014) (“Drug type and quantity are irrelevant to [the] mens rea element” under this statute).

IV

In conclusion, we vacate Soto-Zuniga’s conviction and remand this case for a new trial. If the' government decides to proceed, the district court shall permit discovery of the San Clemente checkpoint statistics. The court should also hold an evidentiary hearing on the checkpoint’s constitutionality, and, as appropriate, publish an order or opinion on its findings. If the checkpoint is found to be constitutional, then the district court shall also permit discovery of the investigation into Rios’s drug smuggling operation.

The conviction is VACATED, the discovery rulings REVERSED, and the case REMANDED, with instructions.

      . Although this individual’s name appears in several spellings in the record, we use this version throughout this opinion for consistency.

      . See Terry v. Ohio, 392 U.S. 1, 88 S.Ct 1868, 20 L.Ed.2d 889 (1968).

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The district court was doubtless referring to Fed. R. Evid. 403, which states that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

      . Armstrong refers to Fed. R. Crim. P. 16(a)(1)(C), which was recodified at 16(a)(1)(E) in the 2002 Amendments.

      . The previous version of Rule 16(a)(1)(E) permitted discovery “material to the preparation of the defendant’s defense.”

      . We grant the government’s Motion to Transmit Documentary Evidence Under Seal for Ex Parte Consideration.

      . The assessment of prejudice is different as to discovery of the names of the teenagers involved in smuggling by Rios, on the one hand, and discovery of checkpoint arrests statistics, on the other hand. On the former, we have the pertinent documents and can assess their materiality to the defense. On the latter, we do not have the arrest and search statistics and can express no conclusion on prejudice, and hence remand for the district court to assess prejudice in the first instance.


source: Caselaw Access Project

author: W. FLETCHER, Circuit Judge:

license: Public Domain

text:
    A. K. H., a minor BY AND THROUGH her Guardian Ad Litem Elizabeth LANDEROS; Maria Cerda Reyes; Benito Herrera; H. H., a minor, by and through her Guardian Ad Litem Eloisa Gutierrez; A. H., a minor by and through her Guardian Ad Litem Eloisa Gutierrez; B. H., Jr., a minor by and through his Guardian Ad Litem Eloisa Gutierrez, Plaintiffs-Appellees, v. CITY OF TUSTIN; Officer Villarreal, Defendants-Appellants.
    No. 14-55184
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 7, 2016—Pasadena, California
    Filed September 16, 2016

      M. Lois Bobak (argued), Robert L. Kaufman, and Daniel K. Spradlin, Wood-ruff Spradlin & Smart, APC, Costa Mesa, California, for Defendant-Appellant Officer Villarreal.

      No appearance by Defendant-Appellant City of Tustin.
    Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiffs-Appellees.
    Before: WILLIAM A. FLETCHER, MARY H. MURGUIA, and JOHN B. OWENS, Circuit Judges.
   OPINION

W. FLETCHER, Circuit Judge:

Defendant Osvaldo Villarreal, a police officer in Tustin, California, fatally shot Benny Herrera during an attempted investigatory stop. As will be more fully described below, Herrera was on foot. Officer Villarreal was in his patrol car and had just driven up beside Herrera. Herrera was in the middle of the roadway, moving in the direction of traffic. His left hand was free and visible; his right hand was in his sweatshirt pocket. Villarreal commanded Herrera to take his hand out of his pocket. Less than a second later, just as Herrera’s hand came out of his pocket, Villarreal shot him twice, killing him. Herrera was unarmed. Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand.

In a § 1983 suit alleging excessive force, Officer Villarreal moved for summary judgment. The district court denied the motion. In this interlocutory appeal, we affirm.

I. Factual and Procedural Background

On December 17, 2011, at approximately 3:00 p.m., Hilda Ramirez called 911. She reported that her ex-boyfriend, Benny Herrera, had “jacked [her] phone.” Ramirez stated that she was not hurt, that she did not need paramedics, and that her children were “fine,” Initially, Ramirez told the 911 police dispatcher that Herrera stole her phone by “just grabb[ing] it from [her] hand.” A short time later, Ramirez modified her story and said that, while the two were arguing about her phone, Herrera “did end up hitting [her] in the head.”

Ramirez told the police dispatcher that Herrera had not used a weapon to take her phone, that Herrera did not carry any weapons, and that Herrera had never been violent with her before. Ramirez told the dispatcher that Herrera was “walking down El Camino Real ... towards Red Hill.” She explained that because he did not have a car and had no friends in the area, Herrera was probably trying to a catch a bus back to his home.

The dispatcher sent out a general call to Tustin police officers. The dispatcher initially reported:

[A] DV [domestic violence] just occurred ... The RP [reporting party] states her ex-boyfriend, Benny Herrera, male Hispanic, 31 years, 5'8", thin build, bald head, black hooded sweatshirt was inside her apartment, took her cell phone, he left. He is now walking on ECR [El Camino Real] towards Red Hill.

The dispatcher repeated Ramirez’s report, saying that Herrera was heading down El Camino Real “to catch the bus” because he had “no access to a vehicle and no friends in the area.” After Ramirez modified her story, the dispatcher updated the officers, explaining that “originally the RP claimed that there was no physical violence, now she’s claiming that the male subject hit her in the head.” The dispatcher reported that Herrera “is not known to carry weapons.” She also reported that Herrera was “shown in-house to be a member of the Southside Gang” and that there was possibly a $35,000 traffic warrant out for Herrera’s arrest. The dispatcher reported, further, that Herrera was on “parole for 11350,” a reference to a state drug possession. crime. See Cal. Health & Safety Code § 11350.

Driving a large police SUV, Officer Brian Miali was the'first to spot Herrera. As Ramirez had reported, Herrera was walking down El Camino Real. A video taken by Miali’s dashboard camera shows Herrera walking on the right shoulder of the road in the same direction as traffic. On Herrera’s immediate right was a high wall, preventing him from escaping to the right. As he came up to Herrera, Miali turned on the red lights of his SUV. Herrera put his right hand in his sweatshirt pocket and started alternately to skip, walk, and run backwards facing Miali. As Herrera did so, he moved away from the right shoulder toward the middle of the road. Miali drew his gun and opened his driver’s side door while driving forward slowly. Herrera kept ahead of Miali’s SUV, sometimes at distances of less than ten or fifteen feet. Using the loudspeaker of his SUV, Miali told Herrera three times to “get down.” Herrera did not comply. He stayed on his feet and continued to move down the road at about the same speed as Miali’s SUV.

Officer Villarreal was driving on El Camino Real behind Officer Miali. A civilian sedan was directly behind Miali, separating Miali from Villarreal’s vehicle. Villarreal testified in his deposition that he did not hear Miali tell Herrera to “get down.” The civilian car moved onto the shoulder to the right, and Villarreal moved left into the opposite lane. He drove his patrol car up beside Herrera, and slightly forward of Miali’s SUV, in order to “box” Herrera in and cut off his avenue of escape. Villarreal held his gun in his hand. His front passenger window was open. The video taken by Miali’s dashboard camera shows that Herrera was -already moving to the left, toward Villarreal’s, patrol-car, as Villarreal pulled up beside Herrera. Villarreal immediately shouted, “Get your hand out of your pocket.” Herrera removed his right hand from his sweatshirt pocket in an arcing motion over his head. Just as Herrera’s hand came out of his pocket, Villarreal fired two shots in rapid succession. Villarreal did not give any warning that he would shoot, and Officer Miali later stated that he was not expecting the shots. Both officers admitted that they never saw anything in either of Herrera’s hands. ■_

Officer Villarreal testified in his deposition that he shot Herrera because he “believe[ed] that he had a weapon and he was going to use that weapon on [him],” Villarreal testified that Herrera’s right hand was “concealed” in his sweatshirt pocket,” Miali testified in his deposition that “there was something in there that appeared to be heavy.” Villarreal testified that Herrera “charged [him] or shortened the distance or closed the distance at [his] passenger window very quickly.” Villarreal said that probably “three to five seconds” passed between when he commanded Herrera to remove his hands from his pocket and when he shot. The recording from Villarreal’s dashboard camera, however, shows that the command and the shots were almost simultaneous, separated by less than a second. The total elapsed time from when Miali first encountered Herrera to when Villarreal shot him was less than a minute.

It is undisputed that Herrera was unarmed. Ramirez had reported to the police dispatcher that Hen-era did not carry weapons. The dispatcher had reported to the officers that Herrera “is not known to carry weapons.” The only “heavy” object in Herrera’s sweatshirt pocket was a cell phone.

Relatives of Herrera (“Plaintiffs”) filed suit under 42 U.S.C. § 1983 against. Officer Villarreal and the City of Tustin alleging, inter alia, that Villarreal used excessive force against Herrera. Villarreal moved for summary judgment based on qualified immunity. The district court denied the motion. Villarreal brought an interlocutory appeal.

II.Appellate Jurisdiction

The parties dispute whether we have jurisdiction to hear this interlocutory appeal. A denial of summary judgment is not ordinarily appealable because it is not a “final decision.” See 28 U.S.C. § 1291; Plumhoff v. Rickard, 572 U.S. -, 134 S.Ct. 2012, 2018, 188 L.Ed.2d 1056 (2014). However, there is an exception to the final judgment rule for an appeal denying a motion for summary judgment based on qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

When analyzing an appellate court’s jurisdiction over an appeal from a denial of a motion for summary judgment based on qualified immunity, the Supreme Court distinguishes between “factual” and “legal” questions. We have jurisdiction over “legal” but not “factual” interlocutory appeals. Plumhoff, 134 S.Ct. at 2019; Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

Officer Villarreal argues that, even viewing the evidence in the light most favorable to the plaintiffs, his actions did not violate the Fourth Amendment and that the district court therefore erred in denying him qualified immunity. A defendant who appeals a denial of qualified immunity on the ground that his “conduct did not violate the Fourth Amendment and, in any event, did not violate clearly established law” has “raise[d] legal issues” that may be properly heard in an interlocutory appeal. Plumhoff, 134 S.Ct. at 2019; see also Behrens, 516 U.S. at 312-13, 116 S.Ct. 834. Villarreal has brought such an appeal, and we have jurisdiction.

III.Standard of Review

In reviewing a summary judgment ruling, “we assume the version of the material facts asserted by the non-moving party to be correct.” Jeffers v. Gomez, 267 F.3d 895, 905 (9th Cir. 2001) (emphasis omitted) (quoting Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir. 2000)). We review “de novo the district court’s determination regarding qualified immunity.” Deorle v. Rutherford, 272 F.3d 1272, 1278 (9th Cir. 2001).

IV.Discussion

To determine whether Officer Villarreal is entitled to summary judgment based on qualified immunity, we ask two questions. First, viewing the facts in the light most favorable to the plaintiffs, did Villarreal use excessive force in violation of the Fourth Amendment? Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010). Second, if Villarreal used excessive force, did he violate a clearly established right? Id. We address each question in turn.

A. Excessive Force

We analyze excessive force claims under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). “The question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865 (citation omitted). To determine the reasonableness of an officer’s actions, we “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Garner, 471 U.S. at 8, 105 S.Ct. 1694 (quoting United States v. Place, 462 U.S. 696, 708, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). We evaluate “the totality of the circumstances,” id. at 9, 105 S.Ct. 1694, paying careful attention to factors, such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. The “most important” of these factors is “whether the suspect posed an ‘immediate threat to the safety of the officers or others.’ ” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (quoting Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc)). Deadly force is permissible only “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.” Garner, 471 U.S, at 11, 105 S.Ct. 1694.

The “nature and quality of the intrusion” by Officer Villarreal on Herrera’s Fourth Amendment interests was extreme. Id. at 8, 105 S.Ct. 1694. “The intrusiveness of a seizure by means of deadly force is unmatched.” Id. at 9, 105 S.Ct. 1694. The use of deadly force implicates the highest level of Fourth Amendment interests both because the suspect has a “fundamental interest in his own life” and because such force “frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment.” Id.

The government’s interests were insufficient to justify the use of deadly force. First, the “crime at issue,” Graham, 490 U.S. at 396, 109 S.Ct. 1865, was a domestic dispute that had ended before

the police became involved. We recognize that some domestic disputes can pose a serious danger to police officers and others, see Mattos, 661 F.3d at 450, but we have held that domestic disputes do not necessarily justify the use of even intermediate let alone deadly force. For example, we denied qualified immunity in Smith to officers who used pepper spray and a dog to subdue and arrest a suspect, even though the suspect was reported to have “hit[ ]” or become “physical” with his wife. Smith, 394 F.3d at 702-03. The use of force is especially difficult to justify when “the domestic dispute is seemingly over by the time the officers begin their investigation.” George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013) (denying qualified immunity in an excessive force case partly because the victim of the domestic disturbance “was unscathed and not in jeopardy when deputies arrived”); Smith, 394 F.3d at 702-03 (denying qualified -immunity partly because, by the time the officers arrived, the suspect “was standing on his porch alone and separated from his wife”). Here, when the officers came upon Herrera, he had left Ramirez’s apartment and was walking down a road at some distance from the apartment.

Second, Herrera did not “pose[ ] an immediate threat to the safety of the officers or others.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. It is clear that the domestic altercation was over, and that Herrera posed no current threat to the safety of Ramirez. She had told the police dispatcher that Herrera had taken her phone, had hit her on the head, and had left on foot to catch a bus. It is also clear in retrospect that Herrera posed no threat to the safety of the officers, as he in fact had.no weapon; but the relevant question for purposes of qualified immunity is whether Officer Villarreal could reasonably have believed that Herrera posed such a threat. Viewing the evidence in the light most favorable to Plaintiffs,- we conclude that he could not.

When Officer Miali first arrived on the scene, Herrera was walking on the right-hand shoulder of the road. The officers had little, if any, reason to believe that Herrera was armed. Ramirez had told the police dispatcher that Herrera was not carrying any weapons, and the dispatcher had told the officers that Herrera was “not known to carry weapons.” When Miali started following Herrera in his SUV, Herrera put his right hand in the pocket of his sweatshirt. He then alternated among skipping, walking, and running, mostly facing backward toward Miali, without displaying a weapon. Villarreal admitted that he never saw a weapon.

We recognize that the dispatcher had told the officers that Herrera was a member of the “Southside Gang,” may possibly have had a $35,000 traffic warrant, and was on parole for a drug possession conviction. Further, the officers had been told that Herrera had stolen Ramirez’s cell phone and hit her on the head, and had had prior run-ins with law enforcement, including at least one conviction. But the traffic warrant and drug possession conviction were relatively minor crimes, neither of which entailed violence or gun possession, and the dispatcher’s information included a statement that Herrera was not known to be armed.

Third, even if Herrera was “actively resisting” or “attempting to evade” an investigatory stop, and even if we equate for present purposes an arrest and an investigatory stop, this factor only slightly favors the government. Graham, 490 U.S. at 396, 109 S.Ct. 1865; see also Chew v. Gates, 27 F.3d 1432, 1442 (9th Cir. 1994). Herrera did not stop as soon as he saw the red lights on Officer Miali’s SUV, and he did not comply with the officer’s commands to “get down.” Herrera, however, never attempted to cross the road and flee, and he continued to move at about the same speed as Officer Miali, while facing him much of the time. Nor did Villarreal actually hear Miali tell Herrera to “get down.” Viewing the evidence in the light most favorable to Herrera, this factor does not weigh heavily in the government’s favor in determining whether the amount of force used was justified. See Deorle, 272 F.3d at 1280 (describing the Graham factors as '“simply a means by which to determine objectively ‘the amount of force that is necessary in a particular situation’ ” (quoting Graham, 490 U.S. at 396-97, 109 S.Ct. 1865)).

Finally, and perhaps most important, Officer Villarreal escalated to deadly force very quickly. Villarreal commanded Herrera to take his hand out of his pocket immediately upon driving up beside him. Villarreal then shot Herrera just as he was taking his hand out of his pocket. Less than a second elapsed between Villarreal commanding Herrera to take his hand from his pocket and Villarreal shooting him. Villarreal neither wárned Herrera that he was going to shoot him, nor waited to see if there was anything in Herrera’s hand. In total, less than a minute had elapsed between when Miali first came upon Herrera and when Villarreal shot him.

Roger Clark, a twenty-seven year veteran of the Los Angeles Police Department, submitted an expert witness declaration. Clark concluded that the “use of deadly force by Officer Villarreal against Mr. Herrera was excessive and unreasonable.” The reasons supporting his conclusion included that “[tjhere was no serious crime reported”; “[tjhere was no indication that a weapon was involved”; “[tjhe dispatch information to the officers was that the suspect was not known to carry weapons”; “Mr. Herrera was only being detained, not aiTested”; “Mr. Herrera complied with Of-fleer Villarreal’s command to take his hand out of his pocket”; “[w]hen Mr. Herrera took his hand out of his pocket upon request, there was nothing in his hand”; “Officer Villarreal conceded that he never saw a gun or anything that looked like a gun in Mr. Herrera’s hand”; “Officer Villarreal gave no warning that hé was going to shoot”; “Mr. Herrera never verbally threatened the officers”; and “Officer Villarreal had other reasonable options.”

Based on the totality of circumstances, and balancing the interests of the two sides, see Garner, 471 U.S. at 8, 105 S.Ct. 1694, we conclude, viewing the evidence in the light most favorable to the plaintiffs, that the intrusion on Herrera’s interests substantially outweighed any interest in using deadly force. We therefore conclude, so viewing the evidence, that Officer Villarreal’s fatal shooting of Herrera violated the Fourth Amendment.

B. Clearly Established Right

Although we conclude Officer Villarreal’s actions violated the Fourth Amendment, we may affirm the district court’s denial of qualified immunity only if “the right which was violated was "clearly established at the time of the violation.” Espinosa v. City & Cty. of San Francisco, 598 F.3d 528, 532 (9th Cir. 2010) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). To determine whether Officer Villarreal violated clearly established law, we look to “cases relevant to the situation [Villarreal] confronted,” Brosseau v. Haugen, 543 U.S. 194, 200, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (quotation marks omitted), mindful that there need "not be a case “directly on point.” Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). Viewing the evidence in the light most favorable to the plaintiffs, we conclude that Villarreal violated clearly established Fourth Amendment law when he shot and killed Herrera.

The Supreme Court’s decision in Garner is instructive. Neither the crime at issue in Garner nor the crime in this case involved the use of serious or deadly force. In Garner, the police suspected Garner of committing burglary; here, the officers had been told that Herrera reportedly hit his ex-girlfriend on the head and stole her cell phone. Garner fled from police even though an officer told him to “halt”; Herrera did not comply with Miali’s commands to “get down” (although Officer Villarreal had not heard the commands). Id. at 4, 105 S.Ct. 1694. Most important, viewing the facts in the light most favorable to Plaintiffs, Officer Villarreal in this case had no more reason to suspect that Herrera was armed than did the officer in Garner. The officer in Garner stated that the suspect “appeared to be unarmed’' but that he “could not be certain that was the case.” Id. at 20, 105 S.Ct. 1694. The Court explained, “Restated in Fourth Amendment terms, this means [the officer] had no ar-ticulable basis ’ to think Garner was armed.” Id. -The same is true here. The dispatcher expressly told the officers that Herrera was “not known to carry weapons.” Villarreal never saw a gun. He could provide no basis for his belief that Herrera was armed except to say that.Herrera had one hand “concealed.”

Conclusion

It has long been clear that “[a] police officer may not seize an unarmed, nondan-gerous suspect by shooting him dead.” Garner, 471 U.S. at 11, 105 S.Ct. 1694. Viewing the evidence in the light most favorable to the plaintiffs, that is precisely what Officer Villarreal did here, We affirm the district court’s denial of qualified immunity and remand for further proceedings consistent with this opinion.

AFFIRMED and REMANDED.


author: THOMAS, Chief Judge:

text:
    Sara LOWRY, Plaintiff-Appellant, v. CITY OF SAN DIEGO, Defendant-Appellee.
    No. 13-56141
    United States Court of Appeals, Ninth Circuit.
    September 16, 2016
   ORDER

THOMAS, Chief Judge:

Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.


author: N.R. SMITH, Circuit Judge,

text:
    ESTATE OF Bruce H. BARTON, Plaintiff-Appellant, v. ADT SECURITY SERVICES PENSION PLAN, a pension plan; Tyco International Management Company, as plan sponsor; Tyco International Management Company, LLC, Administrative Committee, Defendants-Appellees.
    No. 13-56379
    United States Court of Appeals, Ninth Circuit.
    Filed September 20, 2016
    Morris S. Getzels (argued), Morris S. Getzels Law Office, Tarzana, California, for Plaintiff-Appellant.
    Stuart D. Tochner (argued), Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Los Angeles, California, for Defendants-Appellees.
    Before: ALEX KOZINSKI, SANDRA S. IKUTA, and JOHN B. OWENS, Circuit Judges.
    Dissent by Judge N.R. SMITH

       The Estate of Bruce H. Barton is substituted as Plaintiff-Appellant pursuant to Fed. R. App. P. 43(a).

   ORDER

Judges Kozinski and Owens have voted to deny the petition for panel rehearing and rehearing en banc. Judge Ikuta has voted to grant the petition for panel rehearing and rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

N.R. SMITH, Circuit Judge,

with whom O’SCANNLAIN, GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges, join,

dissenting from the denial of rehearing en banc:

A party may petition for rehearing en banc when “the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed ,.. and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions.” Fed. R. App. P. 35(b)(1)(A).

In this case, the majority ignores United States Supreme Court precedent and our own Employee Retirement Income Security Act (“ERISA”) precedent and thus fails to maintain the uniformity of the courts’ decisions. Therefore, I must dissent from our court’s refusal to rehear this case en banc.

The United States Supreme Court mandated the standard for reviewing the decisions of ERISA plan administrators in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111, 115-16, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). It stated that courts should apply an abuse of discretion standard where, as here, the plan administrator had discretionary authority to determine the claimant’s eligibility for benefits. See id. at 115, 109 S.Ct. 948 (citing Restatement (Second) of Trusts § 187 cmt. d (1959)). In Metropolitan Life Insurance Co. v. Glenn, the Supreme Court applied Firestone’s deferential standard, even where the plan administrator had a conflict of interest arising from her dual role of both evaluating and paying benefits claims. 554 U.S. 105, 108, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). The Court refused to create special burden-of-proof rules, or other special procedural or evidentiary rules, as an exception to Firestone deference. Id. at 116, 128 S.Ct. 2343. In Conkright v. Frommert, the Court reaffirmed the “broad standard of deference” accorded to plan administrators under Firestone and concluded this deference was not “susceptible to ad hoc exceptions.” 559 U.S. 506, 513, 130 S.Ct. 1640, 176 L.Ed.2d 469 (2010).

Under the Firestone abuse of discretion standard, the “test for abuse of discretion ... is whether ‘we are left with a definite and firm conviction .that a mistake has been committed.’ ” Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011) (quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)). Thus, we should only overrule the plan administrator’s decision if it is “(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” Salomaa, 642 F.3d at 676 (quoting Hinkson, 585 F.3d at 1262). This standard of review applies to the plan administrator’s factual determinations as well as to her ultimate decision. Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1069-70 (9th Cir. 1999).

Here, the majority agrees the plan gave discretion to the plan administrator to determine Barton’s eligibility for benefits. The majority does not fault the district court in reviewing the administrator’s decision with a low degree of skepticism. The majority agrees that the review in this case is limited to the administrative record. Judge Ikuta’s dissent outlines the evidence in the record, demonstrating that the evidence therein is more than adequate to support the plan administrator’s decision. Thus, the decision is not illogical, implausible, or without support in the record. See Hinkson, 585 F.3d at 1262. No one argues that the plan administrator was aware of additional evidence that would change the decision. The recordkeeping and disclosure requirements imposed on the plan- administrator by 29 U.S.C. § 1024(b)(4) were met, and the plan administrator provided all the required information to Barton. The majority provides no authority for' the proposition that ADT had a legal duty to maintain the other information sought here. Under this deferential abuse of discretion standard of review, there exists no clearer case to affirm the district court.

The majority even admits that, “[tjhe district court faithfully applied our precedent in reviewing the Committee’s denial of benefits for abuse of discretion.” Estate of Barton v. ADT Sec. Servs. Pension Plan, 820 F.3d 1060, 1065 (9th Cir. 2016). However, the majority then abandons the abuse of discretion standard. It invents an unprecedented burden-of-proof standard that only it seems to have had the foresight to impose on plan administrators. Never mind that (1) Supreme Court precedent doesn’t permit for ad hoc exceptions to this standard of review; -(2) our precedent requires that Barton show the administrator’s decision was illogical, implausible, or without any support of inferences in the record; (3) even reviewing a plan administrator’s decision de novo, the burden of proof remains on the claimant; (4) there is no precedent for shifting the burden of proof to the administrator; and (5) circuit precedent clearly bars this burden shifting. See Muniz v. Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1294-95 (9th Cir. 2010).

Why have the Supreme - Court and our circuit • mandate standards of review if judges can ignore them at any time they are so inclined? Our circuit has inexplicably turned its back on the principle of stare decisis in this case. From this time forward, can each panel decide the law on its own, provided enough active judges are willing to live with it?


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Tony WILLIAMS, Defendant-Appellee.
    No. 15-10008
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted January 7, 2016, San Francisco, California
    Filed September 20, 2016

      Adam M. Flake (argued), Assistant United States Attorney; Elizabeth 0. White, Appellate Chief; Daniel G. Bogden, United States Attorney; United States Attorney’s Office, Las Vegas, Nevada; for Plaintiff-Appellant.
    Amy B. Cleary (argued), Assistant Federal Public Defender; Rene L. Vallardes, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appellee.
    Before: J. CLIFFORD WALLACE and ALEX KOZINSKI, Circuit Judges and ROBERT H. WHALEY, Senior District Judge.

       The Honorable Robert H. Whaley, Senior District Judge for the U.S. District Court for the Eastern District of Washington, sitting by designation.

   OPINION

WALLACE, Circuit Judge:

The government appeals from the district court’s order granting Williams’s motion to suppress evidence of the crack cocaine in his pockets and the firearm in his vehicle. We have jurisdiction pursuant to 18 U.S.C. § 3731, and we reverse.

I.

We review de novo an order granting a motion to suppress. See United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc).. “A determination whether there was reasonable suspicion to support an investigatory ‘stop and frisk’ is a mixed question of law and fact, also reviewed de novo.” United States v. Burkett, 612 F.3d 1103, 1106 (9th Cir. 2010). The district court’s factual findings are reviewed for clear error. Crawford, 372 F.3d at 1053 (citing United States v. Hammett, 236 F.3d 1054, 1057-58 (9th Cir. 2001)).

II.

At 4:40 a.m., a person who identified himself as Tony Jones telephoned a Las Vegas police hotline to report an adult, black male sleeping inside a grey Ford Five Hundred car. Jones reported that the man was “known to sell drugs in the area,” did not live in the adjacent apartment complex, and Jones expressed that he “just wanted the person moved out of the area.” Jones provided the operator with his phone number and address.

The Las Vegas Metropolitan Police Department (Metro) dispatched two officers on duty in the reported area, Alvin Hubbard and Thomas Keller. Hubbard and Keller were on patrol in a marked Metro patrol car, with Hubbard driving. When Hubbard and Keller arrived at the apartment complex the caller had identified, they saw a grey Ford Five Hundred car in the parking lot. The Ford had temporary license plates, preventing the officers from securing an initial vehicle check.

The Ford was flanked by a ear on either side and a parking curb in front. Hubbard stopped the patrol car behind the grey Ford, blocking its exit. The officers turned on their overhead lights, “take-down” lights, and spotlights, shining them into the Ford’s windows. After the officers turned on-their lights, a black male, later identified as defendant Tony Williams, sat up in the driver’s seat inside the Ford. Williams looked to his left and right, then started his car. Williams momentarily placed the car in reverse and then quickly shifted the car back into park.

By the time Williams started the car, both officers were approaching the Ford on foot. Hubbard approached the car on the driver’s side, while Keller approached on the passenger’s side with his handgun drawn. Hubbard yelled at Williams through the Ford’s closed windows to turn off the engine and exit the vehicle.

Williams complied and got out of the car. Hubbard continued walking towards Williams, until he was within three to four feet of him. Williams, without saying a word, ran. He ran toward the front of the Ford and around the other cars in the parking lot.

Keller ran after Williams on foot, and Hubbard joined the pursuit in the patrol car. The pursuit lasted approximately one minute. Two or three buildings away from the parking lot, Williams fell and did not get up. He remained on the ground where he had fallen with his hands out. Keller approached with his gun drawn and stood over Williams. Hubbard arrived shortly after in the patrol car, observed Williams prone on the ground, performed a protective sweep of his backside, and handcuffed him.

Hubbard then did a pat down of Williams’s backside. Hubbard then helped Williams from the ground and brought him to the front of the patrol vehicle. At that point, Hubbard did a pat down of Williams’s front. He proceeded to reach into all of Williams’s pants’ pockets. In the right front pocket, Hubbard found a plastic bag containing crack cocaine. In the left front pocket, Hubbard found $1,165.00.

Hubbard placed Williams in the back of the patrol car and drove back to the parking lot where the Ford was still parked. With Williams handcuffed in the back of the patrol car, Hubbard began searching the Ford. Hubbard discovered that the Ford was not registered to Williams but rather to a company named Rodo. The officers never telephoned the company, nor made a call to Metro dispatch to have the vehicle towed or impounded.

As Hubbard searched the car, he found pots, pans, food, and utensils. In the back seat, he found a purse; when he unzipped it, he found a gun inside. Hubbard placed the purse on the hood of the patrol car and contacted his sergeant, who called for a detective from the firearms unit.

On October 8, 2014, a federal grand jury in Nevada returned an indictment against Williams for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a). The grand jury returned a superseding indictment on December 10, 2014, adding charges for violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) by possessing a controlled substance with intent to distribute, and 18 U.S.C. § 924(c)(l)(A)(I) by possessing a firearm in furtherance of a drug trafficking offense. Williams moved to suppress the evidence of the crack cocaine and handgun found during the search of Williams and the Ford. The district court granted the motion, and the government now appeals.

III

The government challenges the district court’s suppression of the evidence on the grounds that (1) the officers had reasonable suspicion to conduct an investigatory-stop; (2) after the initial stop, the officers developed probable cause to arrest Williams and perform a search incident to a lawful arrest; and (3) the officers had probable cause to search Williams’s vehicle.

A.

The government first argues that the district court erred in concluding that the officers lacked reasonable suspicion to conduct an investigatory stop. The Fourth Amendment permits brief investigative stops when a law enforcement officer has reasonable suspicion that the person stopped is engaged in criminal activity. Navarette v. California, — U.S. —, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014). Reasonable suspicion requires more than a mere “hunch” of wrongdoing, but the degree of proof needed is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less demanding than that for probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citations and internal quotation marks omitted). Whether reasonable suspicion exists depends upon the totality of the circumstances surrounding the stop, including “both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); see also Navarette, 134 S.Ct. at 1687.

In assessing the role of telephone tips in investigative stops, the Supreme Court and our court have focused on whether the tips have “sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.” White, 496 U.S. at 327, 110 S.Ct. 2412; United States v. Edwards, 761 F.3d 977, 983 (9th Cir. 2014). In White, an anonymous tipster telephoned police to report that the defendant would be leaving a particular apartment at a particular time in a particular vehicle, and that the defendant would be heading towards a specific motel in possession of cocaine. 496 U.S. at 327, 110 S.Ct. 2412. The police went to the identified apartment, saw a vehicle matching the description, and pursued the vehicle as it made its way to the specified motel, Id. Officers stopped the vehicle just short of the motel and discovered marijuana and cocaine inside. Id. The Court held that the anonymous tip “exhibited sufficient indicia of reliability to justify the investigatory stop” because the anonymous tipster predicted the defendant’s future behavior and the officers corroborated the tip through independent police work. Id. at 330-32, 110 S.Ct. 2412.

The Supreme Court further clarified the factors used in assessing the reliability of tips in Navarette. There, an unidentified 911 caller reported that a truck ran her off the road. 134 S.Ct. at 1686-87. A police officer responded to the 911 broadcast, located the truck, and pulled it over. Id. at 1687. Officers smelled marijuana when they approached the truck and a subsequent search uncovered 30 pounds of marijuana. Id. The Court held that the 911 call had sufficient indicia of reliability to provide the officers with reasonable suspicion that the truck ran the caller off the roadway, reasoning that (1) the tip indicated that the caller had eyewitness knowledge of the incident, “lending] significant support to the tip’s reliability,” id. at 1689; (2) police corroborated the tip by verifying the truck’s location near where the caller stated the incident occurred, id.; (3) the caller used the 911 system, which identifies and traces callers, thus increasing the tip’s veracity by “providing] some safeguards against making false reports with immunity,”- id-.- at 1689-90; and (4) the caller reported a specific and potentially ongoing crime. Id. at 1690.

Applying the principles articulated in White and Navarette, we hold that officers Hubbard and Keller had reasonable suspicion to stop Williams based on the information they possessed and the tip’s reliability. First, the tipster, Tony Jones, telephoned a police hotline and provided his name, address, and phone number. Second, the officers verified the information Jones relayed- through independent observation. Jones provided officers with Williams’s location and the make of Williams’s car. When the officers arrived at the specified parking lot, they found the reported grey Ford Five Hundred with a man inside. Third, Jones provided specific criminal allegations. Jones reported that Williams was sleeping in a car in an adjacent apartment complex, even though Williams did not live there. Jones also reported that Williams was known to sell drugs in the area.

Fourth, the officers’ suspicion was increased when they witnessed Williams’s behavior upon arriving at the parking lot. When the .officers shone the light on Williams’s car, he popped up in the driver’s seat and immediately looked left and right. Williams then proceeded to place the car in reverse. The officers testified that this conduct was consistent with someone who intended to flee the scene. Lastly, the incident occurred in a high-crime area around 5:00 a.m. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (Although“[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime,” police can consider the “relevant characteristics-of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation”). The officers testified that they were aware of gang activities in the area, and often responded to domestic violence and “party calls” there.

Williams’s reliance on Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), is unpersuasive. In J.L., an anonymous caller told police “that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Id. at 268, 120 S.Ct. 1375. Police went to- the bus stop, frisked a young black male in plaid, and seized a gun from his pocket. Id. The Court held that the police lacked reasonable suspicion to stop the suspect, reasoning that the call “provided no predictive information,” leaving the “police without means to test the informant’s knowledge or credibility.” Id. at 271, 120 S.Ct. 1375. The tip also failed to allege more than “[a]n accurate description of a subject’s readily observable location and appearance,” and did not show how the tipster had knowledge of the alleged “concealed criminal activity.” Id. at 272, 120 S.Ct. 1375.

By contrast, the tip in this case not only provided an accurate description of the suspect, but it also alleged ongoing, observable criminal activity — trespass. Jones identified Williams’s location, car, and appearance and also stated that Williams was sleeping in a car in an adjacent apartment building’s lot, even though Williams did not live there. Unlike the concealed criminal activity alleged in J.L., Jones provided predictive information concerning Williams’s activity, which the officers were able to immediately verify when they arrived.

Even if there were a question as to whether the tip, on its own, provided the officers with the requisite reasonable suspicion to detain Williams, the tip was certainly sufficient to justify further investigation. After receiving the information provided by the tipster, the officers would have .been delinquent had they not driven over to-the parking-lot to investigate the situation. The officers testified at the evi-dentiary hearing that the reported conduct, if confirmed, would be indicative of a potential DUI, as well as loitering or trespassing. When they arrived, the officers faced a potentially dangerous situation. They encountered -a possible drug dealer, sitting in a car with temporary license plates, in a dark and deserted parking lot, in a high-crime area, during the early hours of the morning. Accordingly, the officers acted reasonably when they blocked in the driver with their police car, turned on their police lights, and one of the officers drew his gun. These actions led to Williams's subsequent suspicious conduct, which included placing his car in reverse, ignoring the officers’ questions, and ultimately darting away on foot.

Based on the totality of the circumstances surrounding the stop, the officers had reasonable suspicion to briefly detain Williams, and the district court erred in concluding otherwise.

B.

1.

The government contends that the officers had probable cause to arrest Williams because he obstructed the officers in their attempt to enforce Nevada Revised Statute (N.R.S.) § 171.128. Section 171.128 dictates that police officers may detain a suspect whom the officers have reasonable suspicion has committed, is committing, or is about to commit a crime, in order to obtain that individual’s identity. When the suspect fails to identify himself after officers have detained him under reasonable suspicion, the suspect violates N.R.S. § 199.280 (Nevada’s obstruction statute), which makes it unlawful for a person to “willfully resist[ ], delay[ ] or obstruct ] a public officer in discharging or attempting to discharge any legal duty of his or her office.”

As explained above, the officers had reasonable suspicion to conduct an investigatory stop: a caller reported that Williams was sleeping in his car outside of an apartment building that Williams did not live in; the caller reported that he knew Williams to be a drug dealer; Williams acted as if he intended to flee when officers approached him; and the conduct occurred in a high-crime area early in the morning. Accordingly, the officers had reasonable suspicion to stop Williams and, pursuant to section 171.123, could approach Williams to ascertain his identity. Instead of speaking with the officers, Williams immediately ran, preventing the officers from discharging their duty under section 171.123 and, accordingly, violating Nevada’s obstruction statute.

In holding that the officers lacked probable cause to arrest Williams, the district court concluded that simply fleeing from an officer, while it establishes reasonable suspicion, does not establish probable cause that the individual violated Nevada’s obstruction statute. See United States v. Smith, 633 F.3d 889, 893 (9th Cir. 2011) (“[A] person’s ‘headlong,’ ‘unprovoked’ flight upon seeing a police officer, when it occurs in a high-crime neighborhood, is sufficient to establish reasonable suspicion that the person is involved in criminal activity.”) (quoting Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). The district court, however, ignored the interplay between section 171.123 and Nevada’s obstruction statute. The officers did not have probable cause to arrest Williams on the basis of the obstruction statute alone; rather, the officers had probable cause to effectuate an arrest because Williams obstructed , officers in their efforts to enforce section 171.123.

Williams nevertheless contends that the government waived its argument that the officers had probable cause to arrest him for violating N.R.S. § 171.123. Before the district court, the -government argued that the officers had probable cause to arrest Williams; however, the government failed to specify that the officers had probable cause to arrest Williams because he violated N.R.S. § 171.123, and the district court never addressed that statute.

Our court applies “a ‘general rule’ against entertaining arguments on appeal that were not presented or developed before the district court.” Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998) (citation omitted). However, we have made it clear that “it is claims that are deemed waived or forfeited, not arguments,” United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004); see Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). Specifically, “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.” Yee v. City of Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992).

Our court’s opinion in United States v. Guzman-Padilla, 573 F.3d 865 (9th Cir. 2009), is instructive. In Guzmanr-Padilla, the defendant moved to suppress evidence of 479.95 kilograms of marijuana that border patrol agents seized when' the defendant crossed the Mexican-American border. Id. at 874-76. Before the district court, the government argued generally that the agents’ seizure of the defendant’s vehicle did not require probable cause. Id. at 873, 877 n.1. On appeal, the government argued more specifically that the agents did not need probable cause to seize the defendant’s vehicle because of the border search exception to the Fourth Amendment. Id. at 874, 877 n.1. Our court held that, because the government had advanced its probable cause argument before the district court, it was not circumscribed from advancing a more specific argument in support of its theory. Id. at 877 n.1.

The situation in our present case is nearly identical to Guzman-Padilla, Before the district court, the government argued generally that the officers had proba‘ble cause to arrest Williams because he ran. On appeal, the governmént argued more specifically that the officers- had probable cause to arrest Williams for violating N.R.S. § 171.123 when he rah. The government, having advanced its probable cause theory before the district court, is able to make a more precise argument on appeal as to why the officers had probable cause.

2.

Because the officers -lawfully arrested Williams, the government contends that the officers conducted a valid search incident to arrest when they searched Williams’s pockets and found crack cocaine. The Supreme Court and our court have already held that a search incident to a lawful arrest is not limited to simple pat-down of the suspect and can “involve a relatively extensive exploration” of the areas within the arrestee’s immediate control. United States v. Robinson, 414 U.S. 218, 227, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (internal quotation marks omitted); see also United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir. 2010). Those areas include the arrestee’s person and the inside pockets of the arrestee’s clothing. See Robinson, 414 U.S. at 224-25, 94 S.Ct. 467. Here, the officers had probable cause to arrest Williams and performed a valid search incident to arrest of Williams’s person — which lawfully extended to the insides of Williams’s pockets — after apprehending Williams for obstruction.

C;

Lastly, the government contends that the ' officers lawfully searched Williams’s vehicle because they had probable cause to believe the Ford contained contraband or evidence of drug dealing.

Officers may conduct a warrant-less search of ah automobile, including containers within it, when they have probable cause to believe that the vehicle contains contraband or evidence of criminal activity. United States v. Ewing, 638 F.3d 1226, 1231 (9th Cir. 2011); see Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (“When there is probable cause to search for contraband in a car, it is reasonable for police officers ... to examine packages and 'containers without a showing of individualized probable cause for each one”). Probable cause exists when, based on the totality of the circumstances, there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Under the totality of the circumstances, the officers had probable cause to believe that evidence of contraband would be found in Williams’s vehicle: Before arriving on the scene, the officers received information-from Metro dispatch that Williams was sleeping in his car in an unauthorized location and was known to deal drugs in the area. Moreover, the officers approached the vehicle early in the morning — around 5:00 a.m. — and. were in a high-crime neighborhood. When officers approached the vehicle, Williams popped up, looked around, and temporarily placed the car in reverse. After Williams got out of the vehicle, he immediately .fled the scene. Officers- caught Williams after he tripped and fell to the ground. In searching Williams’s person after effectuating a lawful arrest, Hubbard found individually wrapped crack cocaine in plastic containers. He also found $1,165.00 in’cash in small denominations. Based on the information the officers had prior to making the arrest — and the contraband they found during the arrest — the officers had probable cause to believe that the vehicle which Williams had only just fled contained further contraband or other evidence of drug dealing.

Williams argues that because the officers arrested him for “obstructing by running,” there is.no conceivable evidence related to the obstruction charge that the officers could find in the vehicle. Williams ignores the evidence which emerged as soon as the officers conducted a lawful search incident to arrest: the individually wrapped packages of crack cocaine in his pockets. The crack cocaine provided the officers with the probable cause necessary to arrest Williams for drug possession and drug dealing, two crimes in which a vehicle could reasonably contain further evidence.

Williams also contends that the government waived its right to argue on appeal that the officers had probable cause to search his vehicle because it failed to raise the argument with the district court. Williams’s argument fails: the district court considered whether the officers had probable cause to conduct a warrantless search of Williams’s vehicle and held that the police had none. Our court does not deem an issue waived “if the district court actually considered it.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1054 (9th Cir. 2007) (citing Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 n.1 (9th Cir. 1991)).

IV.

In conclusion, the district court erred in concluding that the officers lacked reasonable suspicion to detain Williams; lacked probable cause to arrest Williams; unlawfully performed a search incident to arrest; and lacked probable cause to conduct a warrantless search of Williams vehicle. We therefore reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

      . N.R.S. § 171.123(1) and (3) provide: "Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.... The officer may detain the person pursuant to this section only to ascertain the person’s identity and the suspicious circumstances surrounding the person's presence ....’’

      . The government also argues that the officers legally searched the vehicle as a search incident to a lawful arrest. Because we hold that the officers had probable cause to search the vehicle, we do not address the government’s alternative argument.