FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MALIK NGUMEZI,

Defendant-Appellant.

No. 19-10243

D.C. No.

3:18-cr-00358-CRB-1

OPINION

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted June 8, 2020

San Francisco, California

Filed November 20, 2020

Before: Eric D. Miller and Danielle J. Hunsaker, Circuit 

Judges, and Patrick J. Schiltz,* District Judge.

Opinion by Judge Miller

* The Honorable Patrick J. Schiltz, United States District Judge for 

the District of Minnesota, sitting by designation.
2 UNITED STATES V. NGUMEZI

SUMMARY**

Criminal Law

The panel reversed the district court’s denial of a motion 

to suppress a firearm found in a search of the defendant’s 

car, vacated his conviction for being a felon in possession of 

a firearm, and remanded for further proceedings.

The panel held that police officers who have reasonable 

suspicion sufficient to justify a traffic stop—but who lack 

probable cause or any other particularized justification, such 

as a reasonable belief that the driver poses a danger—may 

not open the door to a vehicle and lean inside. 

Because opening the car door and leaning into the car 

constituted an unlawful search under the Fourth 

Amendment, the panel considered what remedy is 

appropriate in this case. The panel held that the exclusionary 

rule applies to the loaded handgun found under the driver’s 

seat because the government made no effort to satisfy its 

burden to show that the gun is not “the fruit of the poisonous 

tree,” did not invoke the attenuation doctrine, and did not 

argue that the inevitable-discovery doctrine applies.

COUNSEL

Steven J. Koeninger (argued) and Jonathan Abel, Assistant 

Federal Public Defenders; Steven G. Kalar, Federal Public 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. NGUMEZI 3

Defender; Office of the Federal Public Defender, San 

Francisco, California; for Defendant-Appellant.

Briggs Matheson (argued), Assistant United States Attorney; 

Merry Jean Chan, Chief, Appellate Section, Criminal 

Division; David L. Anderson, United States Attorney; 

United States Attorney’s Office, San Francisco, California;

for Plaintiff-Appellee.

OPINION

MILLER, Circuit Judge:

Following a bench trial, Malik Ngumezi was convicted 

of being a felon in possession of a firearm, in violation of 

18 U.S.C. § 922(g)(1). He appeals the denial of his motion 

to suppress the firearm, which was found in a search of his 

car. Because we conclude that the search violated the Fourth 

Amendment, we reverse the denial of the suppression 

motion, vacate the conviction, and remand for further 

proceedings.

The search at issue occurred in the early morning hours 

of May 6, 2018, after a San Francisco police officer, Kolby 

Willmes, saw Ngumezi’s car parked at a gas station with 

Ngumezi in the driver’s seat. The car had no license plates, 

in apparent violation of section 5200(a) of the California 

Vehicle Code. See People v. Dotson, 101 Cal. Rptr. 3d 897, 

901 (Cal. Ct. App. 2009). Ngumezi had recently purchased 

the car, and a bill of sale was affixed to the lower passengerside corner of the windshield.

Willmes approached the car to investigate; because a gas 

pump blocked access to the driver side, he went to the 

passenger side. According to Ngumezi, Willmes then 
4 UNITED STATES V. NGUMEZI

opened the passenger door, leaned into the car, and asked 

Ngumezi for his driver’s license and vehicle registration. For 

his part, Willmes agrees that he asked for Ngumezi’s license 

and registration and does not deny that he first opened the 

door and leaned inside. Willmes says that he does not 

remember whether he opened the door, or whether he instead 

spoke to Ngumezi through an open window.

Ngumezi produced a California identification card but 

not a driver’s license. Willmes asked Ngumezi if his license 

was suspended, and Ngumezi admitted that it was. Another 

officer then ran a license check and confirmed that 

Ngumezi’s license was suspended and that Ngumezi had 

three prior citations for driving with a suspended license.

San Francisco Police Department policy requires 

officers to inventory and tow a vehicle when a driver lacks a 

valid license and has at least one prior citation for driving 

without a valid license. Consistent with that policy, the 

officers prepared to have Ngumezi’s car towed. In 

conducting the inventory search, they found a loaded 

.45 caliber handgun under the driver’s seat. The officers then 

ran a background check and learned that Ngumezi was 

prohibited from possessing firearms because of a previous 

felony conviction.

Ngumezi was charged with one count of being a felon in 

possession of a firearm, in violation of 18 U.S.C. 

§ 922(g)(1). He moved to suppress the firearm as fruit of an 

unlawful search. He conceded that “Officer Willmes . . . had 

articulable facts and reasonable suspicion to approach the 

vehicle” when Willmes saw that it had no plates. But he 

argued that once Willmes approached, “he necessarily was 

in eyesight of the proof of sale affixed to the front right-side 

windshield,” and the bill of sale “dissipated reasonable 

suspicion that the car was not registered.” Because 
UNITED STATES V. NGUMEZI 5

reasonable suspicion had dissipated, Ngumezi argued, “no 

Fourth Amendment exception permitted the officer’s further 

interrogation, pulling the defendant out of the car, or 

searching the car.”

The district court denied the motion to suppress. The 

court assumed the correctness of Ngumezi’s version of the 

facts. It emphasized, however, that the “reasonable suspicion 

inquiry is based on what the officer is aware of, and therefore 

reasonable suspicion cannot be dispelled by facts unknown 

to the officer.” The court noted that Ngumezi did “not allege 

that Willmes actually saw the proof of sale, only that it was 

in his line of sight.” It concluded that “[w]ithout any 

evidence, or indeed even the assertion, that the officer in fact 

actually saw the proof of sale, its existence could not have 

factored into his analysis of the situation and thus could not 

have dispelled his reasonable suspicion.”

After the district court denied the suppression motion, 

Ngumezi waived his right to a jury trial and requested a 

bench trial on stipulated facts. The court found Ngumezi 

guilty and sentenced him to 18 months of imprisonment, to 

be followed by two years of supervised release.

On appeal, Ngumezi challenges only the denial of the 

motion to suppress, which we review de novo. United 

States v. Ped, 943 F.3d 427, 430 (9th Cir. 2019). His 

principal argument is that whether or not Officer Willmes 

had reasonable suspicion at the time he opened the door, 

opening the door and leaning inside constituted a search that 

violated the Fourth Amendment because it was not 

authorized by any exception to the warrant requirement.

As we have explained, the district court focused on a 

different argument—that reasonable suspicion should have 

been dispelled because the bill of sale was visible in the 
6 UNITED STATES V. NGUMEZI

windshield—and it did not address the argument that 

opening the door and leaning inside was an unlawful search. 

We can hardly fault the district court for ignoring that issue 

because Ngumezi raised it only in a footnote in his reply in 

support of his motion to suppress. We have held that “a 

perfunctory request, buried amongst the footnotes, does not 

preserve an argument on appeal.” Coalition for a Healthy 

Cal. v. FCC, 87 F.3d 383, 384 n.2 (9th Cir. 1996). Thus, had 

the government argued that the issue was forfeited, we 

would have been compelled to agree. In that case, we could 

have considered Ngumezi’s argument only if he could show 

good cause for not properly raising it in his motion to 

suppress. United States v. Guerrero, 921 F.3d 895, 897–98 

(9th Cir. 2019) (per curiam); see Fed. R. Crim. P. 12(c)(3). 

But the government has not made a forfeiture argument. 

Instead, it has addressed the issue on the merits and invited 

us to do so as well. We conclude that the government has 

forfeited any claim of forfeiture, so we proceed to consider 

the merits. United States v. Doe, 53 F.3d 1081, 1083 (9th 

Cir. 1995).

In doing so, we assume, as the district court did, that 

Ngumezi’s version of the facts is correct. The key facts are 

not disputed: Ngumezi says that Willmes opened the car 

door and leaned into the car, and Willmes does not 

specifically deny that that is what he did. We therefore must 

consider whether police officers who have reasonable 

suspicion sufficient to justify a traffic stop—but who lack 

probable cause or any other particularized justification, such 

as a reasonable belief that the driver poses a danger—may 

open the door to a vehicle and lean inside. We conclude they 

may not.

We begin by examining the Supreme Court’s decision in 

New York v. Class, 475 U.S. 106 (1986), which sets out the 
UNITED STATES V. NGUMEZI 7

principles that control this case. In Class, police officers 

stopped a car for speeding. Id. at 107–08. During the stop, 

an officer opened the door to read the vehicle identification 

number printed on the doorjamb. Id. at 108. When he did not 

find the VIN there, he decided to search the dashboard, 

where the VIN for newer cars is located. Id. Because the VIN 

on the dashboard was covered by papers, the officer opened 

the door and reached inside to move them out of the way; 

while doing so, he saw a gun hidden under the seat. Id.

The Supreme Court held that the officer’s conduct did 

not violate the Fourth Amendment. The Court explained that 

“a car’s interior as a whole is . . . subject to Fourth 

Amendment protection from unreasonable intrusions by the 

police.” Class, 475 U.S. at 114–15. And it had no difficulty 

in concluding that “the intrusion into that space” by the 

officer “constituted a ‘search.’” Id. at 115. Nevertheless, it 

held that the search was valid because “the governmental 

interest in highway safety served by obtaining the VIN is of 

the first order,” and the VIN’s location on the dashboard is 

“ordinarily in plain view of someone outside the 

automobile,” so the intrusion involved in searching it is 

“minimal.” Id. at 117–18. The Court made clear that the 

result would have been different had the VIN not been

covered by papers: “If the VIN is in the plain view of 

someone outside the vehicle, there is no justification for 

governmental intrusion into the passenger compartment to 

see it.” Id. at 119.

Class establishes that a physical intrusion into the 

interior of a car constitutes a search. Although the search in 

Class was justified because of the specific need—finding the 

VIN—and its minimal intrusiveness, neither of those 

considerations is present here. The government has pointed 

to no justification for a search. It has not argued that Willmes 
8 UNITED STATES V. NGUMEZI

had probable cause, nor has it suggested that Willmes had 

any reason to fear that Ngumezi might be dangerous. See 

Michigan v. Long, 463 U.S. 1032, 1049 (1983) (authorizing 

a protective search of a vehicle’s passenger compartment 

“when police have a reasonable belief that the suspect poses 

a danger”). Instead, it relies on the general principle that a 

driver has a “diminished” expectation of privacy in a vehicle. 

Class, 475 U.S. at 113. That is true, but as the Court made 

clear in Class, a driver retains important privacy interests, id. 

at 112–14, which is why, in most circumstances, “probable 

cause is necessary to conduct a warrantless search of a 

vehicle,” United States v. Rodgers, 656 F.3d 1023, 1024 (9th 

Cir. 2011).

The government argues that Ngumezi would have had to 

speak with Willmes one way or another, and therefore 

opening the door and leaning in was “minimally intrusive” 

because, as a practical matter, it “did not alter Ngumezi’s 

circumstances—it merely facilitated communication.” It 

analogizes Willmes’s action to that of shining a flashlight 

into a car, which the Supreme Court has held is not a search. 

See Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality 

opinion). That reasoning is flawed because it ignores that 

Willmes entered the interior space of the vehicle when he 

leaned in across the plane of the door. As several recent 

Supreme Court decisions have confirmed, that physical 

intrusion is constitutionally significant: “When ‘the 

Government obtains information by physically intruding’ on 

persons, houses, papers, or effects, ‘a “search” within the 

original meaning of the Fourth Amendment’ has 

‘undoubtedly occurred.’” Florida v. Jardines, 569 U.S. 1, 5 

(2013) (quoting United States v. Jones, 565 U.S. 400, 406 

n.3 (2012)); see Jones, 565 U.S. at 408 n.5 (explaining that 

a physical intrusion “conjoined with . . . an attempt to find 

something or to obtain information” constitutes a search). 
UNITED STATES V. NGUMEZI 9

Although the intrusion here may have been modest, the 

Supreme Court has never suggested that the magnitude of a 

physical intrusion is relevant to the Fourth Amendment 

analysis. Jones, for example, involved the attachment of a 

GPS tracker that was “a small, light object that [did] not 

interfere in any way with the car’s operation,” yet the Court 

still held that the attachment effected a search. 565 U.S. 

at 424–25 (Alito, J., concurring in the judgment). Nor do we 

see how courts could administer a test that would require 

them to distinguish between Willmes leaning into the 

passenger-side area of Ngumezi’s car and, say, an officer 

crawling into the back of a car to look under the seats. 

Instead, we apply a bright-line rule that opening a door and 

entering the interior space of a vehicle constitutes a Fourth 

Amendment search. See Class, 475 U.S. at 115.

The government emphasizes that, under Pennsylvania v. 

Mimms, 434 U.S. 106 (1977) (per curiam), an officer “may 

as a matter of course order the driver of a lawfully stopped 

car to exit his vehicle.” Maryland v. Wilson, 519 U.S. 408, 

410 (1997); see id. (extending that rule to passengers). In the 

government’s view, opening a door and leaning into a car is 

less intrusive than ordering a driver to get out of a car, so if 

the latter is permissible, then the former must be permissible 

as well. Ordering a driver out of a car is indeed an “intrusion 

into the driver’s personal liberty”—albeit one that the Court 

in Mimms described as a “de minimis” intrusion that “hardly 

rises to the level of a ‘petty indignity.’” 434 U.S. at 111 

(quoting Terry v. Ohio, 392 U.S. 1, 17 (1968)). But even if 

opening a door and leaning into the car is a lesser intrusion 

on the driver’s liberty, it is a greater intrusion on the driver’s 

privacy interest in the car’s interior. Indeed, the Court 

emphasized in Mimms that a driver ordered out of a car “is 

being asked to expose to view very little more . . . than is 

already exposed,” something that is not true when an officer 
10 UNITED STATES V. NGUMEZI

enters the vehicle. Id. The rule in Mimms does not support 

Willmes’s action here.

The government also relies on United States v. Brown, 

334 F.3d 1161 (D.C. Cir. 2003), and United States v. 

Stanfield, 109 F.3d 976 (4th Cir. 1997), which both upheld 

the opening of car doors by police during traffic stops. But 

in both cases, the courts identified particularized reasons for 

the officers to fear danger. In Brown, the court pointed to 

several factors “support[ing] both the officers’ suspicion of 

criminal activity and their fear of physical harm,” including 

that the officers were responding to a reported shooting, that 

passengers in the car made furtive movements as the officers 

approached, and that the car’s windows “were darkly tinted, 

preventing the officers from having a clear view of the car’s 

occupants.” 334 F.3d at 1168–69. Similarly, in Stanfield, the 

court described the car as one “with windows so heavily 

tinted that [the officers] are unable to view the interior of the 

stopped vehicle,” and it characterized the inspection as one 

“to ascertain whether the driver is armed, whether he has 

access to weapons, or whether there are other occupants of 

the vehicle who might pose a danger to the officers.” 

109 F.3d at 981. And, crucially, in both cases the court 

emphasized that the inspection was conducted “without 

breaking the plane of the car’s surface.” Brown, 334 F.3d 

at 1169; accord Stanfield, 109 F.3d at 981. That fact 

distinguishes the officers’ conduct in those cases from the 

physical entry into the car that occurred here.

Cases in which courts have upheld an entry into a car 

also have involved some particularized justification. For 

example, in United States v. Ryles, 988 F.2d 13 (5th Cir. 

1993), an officer stopped a car for suspected drunk driving, 

determined that the driver lacked a valid license, and then 

opened the door and looked in the car to see whether the 
UNITED STATES V. NGUMEZI 11

passenger, “who would ultimately be driving” the vehicle, 

was impaired. Id. at 15. The court held that the inspection 

was permissible in those circumstances but expressly 

rejected the suggestion “that a police officer may in all 

circumstances constitutionally intrude into the interior of a 

vehicle simply because he has temporarily lawfully detained 

the vehicle because of a traffic violation.” Id. at 16; see also,

e.g., United States v. Meredith, 480 F.3d 366, 367 (5th Cir. 

2007) (upholding opening of door for “minimally necessary 

visual inspection” of driver who claimed to be unable to exit 

the vehicle after being ordered to do so); United States v. 

Cotton, 721 F.2d 350, 352 & n.1 (11th Cir. 1983) (officer 

permissibly opened door to effect arrest when faced with a 

clear possibility of danger). We are aware of no authority 

upholding an entry in circumstances similar to this case.

Because the opening of the car door and leaning into the 

car constituted an unlawful search, we must consider what 

remedy is appropriate. The exclusionary rule generally 

applied in Fourth Amendment cases requires courts to 

suppress any evidence obtained as a “‘direct result of an 

illegal search or seizure,’” as well as “‘evidence later 

discovered and found to be derivative of an illegality,’ the 

so-called ‘fruit of the poisonous tree.’” Utah v. Strieff, 136 S. 

Ct. 2056, 2061 (2016) (quoting Segura v. United States, 

468 U.S. 796, 804 (1984)). Here, the evidence sought to be 

suppressed is the gun that was found under the seat. Officer 

Willmes did not see the gun while he was leaning into the 

car; he found it only in the subsequent inventory search, 

which was conducted because Ngumezi’s suspended license 

required his car to be impounded. Ngumezi contends that the 

gun is nevertheless the fruit of the unlawful search because 

if Willmes had not leaned into the car, Ngumezi “might have 

been less intimidated” and could have directed Willmes to 

the bill of sale on the windshield, dispelling any suspicion 
12 UNITED STATES V. NGUMEZI

and ending the encounter before the officers learned of his 

suspended license. The “fruit of the poisonous tree” doctrine 

does not require a particularly tight causal chain between the 

illegal search and the discovery of the evidence sought to be 

suppressed. See, e.g., United States v. Johns, 891 F.2d 243, 

245 (9th Cir. 1989). Even so, we have some doubt whether 

it can accommodate a chain with quite so many speculative 

links as Ngumezi’s. We need not resolve that question, 

however, because “[t]he government has the burden to show 

that the evidence is not ‘the fruit of the poisonous tree,’” and 

here the government has made no effort to do so. United 

States v. Twilley, 222 F.3d 1092, 1097 (9th Cir. 2000) 

(quoting Johns, 891 F.2d at 245). Nor has it invoked the 

closely related “attenuation” doctrine, which would allow it 

to avoid suppression by showing that “the connection 

between unconstitutional police conduct and the evidence is 

remote.” Strieff, 136 S. Ct. at 2061.

In addition, despite what would seem to be a plausible 

argument that the gun would have been discovered even 

without the constitutional violation, the government has not 

argued that the inevitable-discovery doctrine applies. See 

Nix v. Williams, 467 U.S. 431 (1984). It is the government’s 

burden to show inevitable discovery, so its failure to make 

the argument prevents us from upholding the denial of the 

suppression motion on that theory. See United States v. 

Ruckes, 586 F.3d 713, 719 (9th Cir. 2009).

Instead, as the government confirmed at oral argument, 

it has made only one argument against exclusion—namely, 

that we should not apply the exclusionary rule because the 

benefits of deterrence do not outweigh the social costs of

suppression. The government emphasizes two points: that 

Willmes’s conduct was not “flagrantly illegal” and that 

suppression would let a guilty defendant go free. We find 
UNITED STATES V. NGUMEZI 13

neither persuasive. First, although the flagrancy of the 

government’s conduct is relevant to the attenuation doctrine, 

see Strieff, 136 S. Ct. at 2063, lack of flagrancy is not a 

freestanding basis for avoiding the application of the 

exclusionary rule—at least not where, as here, it falls short 

of establishing that the officer had an “objectively 

‘reasonable good-faith belief’” in the lawfulness of his 

conduct, United States v. Lustig, 830 F.3d 1075, 1080 (9th 

Cir. 2016) (quoting Davis v. United States, 564 U.S. 229, 

238 (2011)). Second, while it is true that applying the 

exclusionary rule in this case will mean that a guilty 

defendant goes free, that is true of applying the exclusionary 

rule in essentially every case. Nothing about this case calls 

for a remedy other than “[t]he typical remedy for a Fourth 

Amendment violation,” which “is the exclusion of evidence 

discovered as a result of that violation from criminal 

proceedings against the defendant.” United States v. Garcia, 

974 F.3d 1071, 1075 (9th Cir. 2020).

We reverse the denial of the suppression motion, vacate 

Ngumezi’s conviction, and remand for further proceedings. 

See United States v. Cano, 934 F.3d 1002, 1010 (9th Cir. 

2019).

REVERSED, VACATED, AND REMANDED.