FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-30254

Plaintiff-Appellee, D.C. No.

v.  3:10-cr-05038-

RJB-1 JOSHUA TIMOTHY RODGERS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Western District of Washington

Robert J. Bryan, Senior District Judge, Presiding

Argued and Submitted

May 3, 2011—Seattle, Washington

Filed September 7, 2011

Before: Mary M. Schroeder, M. Margaret McKeown, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge McKeown;

Dissent by Judge Callahan

17001
COUNSEL

Mary Anne Royle (argued), Vancouver, Washington, for the

defendant-appellant.

Jenny A. Durkan, United States Attorney, and Jill Otake

(argued), Assistant United States Attorney, U.S. Attorney’s

Office, Seattle, Washington, for the plaintiff-appellee. 

OPINION

McKEOWN, Circuit Judge:

Passenger and vehicle searches have played a prominent

role in Fourth Amendment jurisprudence. The Supreme Court

has consistently held that probable cause is necessary to conduct a warrantless search of a vehicle. See Carroll v. United

States, 267 U.S. 132, 160-62 (1925); California v. Carney,

471 U.S. 386, 390 (1985). In recent years, the Court has clarified that “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” the search may extend to

any area where evidence might be found. See Arizona v. Gant,

129 S. Ct. 1710, 1721 (2009) (citing United States v. Ross,

456 U.S. 798, 820-21 (1982)). In addition, when an arrest is

made, a warrantless search is permitted “if the arrestee is

within reaching distance of the passenger compartment . . . or

it is reasonable to believe the vehicle contains evidence of the

offense of arrest.” Id. at 1723. But the Court has never sanctioned a vehicle search simply because there was probable

17004 UNITED STATES v. RODGERS
cause to arrest a passenger or because a passenger could not

provide identification. The Fourth Amendment requires more.

BACKGROUND

The facts in this appeal are not in dispute. On December

16, 2009, at approximately 3:30 a.m., Police Officer Ryan

Moody was patrolling the area of South 84th Street and South

Hosmer Street in Lakewood, Washington, a high crime location known for juvenile prostitution and vehicle theft. During

the course of his duties, Moody performed random license

plate checks on passing vehicles, “[l]ooking for warrants, suspended drivers, [and] stolen vehicles.”

1

 Moody ran a routine

check on a black Pontiac Grand Am. The registration record

indicated that the car was registered to an individual named

Joshua Rodgers. Moody noticed, however, that “the colors

didn’t match”: the registration listed the car as gold, but the

car observed by Moody was black. Moody testified that he

often encountered license plates that had been removed from

one vehicle and placed on a stolen vehicle of the same make

and model to conceal a car’s stolen status.2 Thus, suspecting

that the car might be stolen, Moody stopped the vehicle and

approached on foot. 

Upon reaching the driver’s side of the car, Moody immediately recognized Rodgers from two prior traffic stops.3

 Rodgers was cooperative and explained that he had painted his

vehicle but did not have money to update his registration.

Rodgers provided Moody with a valid driver’s license, which

1The quotations used throughout this section are taken from Moody’s

testimony before the district court. Moody was the only witness to appear,

and the district court adopted his testimony as the court’s findings of fact.

2The parties agree that the failure to update a vehicle’s registration after

it has been painted is not a citable offense under local or state law. 

3

In fact, Moody previously stopped Rodgers’ vehicle for the exact same

reason—the discrepancy between the color listed on the registration and

the car’s physical appearance.

UNITED STATES v. RODGERS 17005
confirmed that he owned the car. Moody also checked to

make sure that the vehicle identification number listed on the

registration record matched the number on Rodgers’ vehicle.

At some point during the stop, Moody looked into Rodgers’

car and noticed a young female in the front passenger seat.

The young woman “appeared to be Caucasian” and “seemed

nervous, didn’t want to make eye contact.” Based on her

appearance, Moody thought that the girl was twelve to fourteen years old. Recalling that Rodgers was 51 years old

according to his license, Moody asked Rodgers about the

young woman. Rodgers responded that she was simply a

friend and that he was giving her a ride to a nearby apartment

complex. This scenario “obviously raised [Moody’s] suspicion more, being that he’s a 51-year-old male, and the way

she appeared [ ] was a 12-to-14-year-old female.” Given the

time of day and the high-crime location, Moody’s “first inclination was that she was probably an underage prostitute.”

Moody also had concerns that the young woman “could have

been a run-away” or “a missing person.”

Suspecting that Rodgers might be “pimping out the

female,” Moody continued to investigate and asked the young

woman for identification. The young woman responded that

she “didn’t have any” ID, but she provided her name, S.F.,4

and indicated that she was 19 years old. S.F. stated that her

birthday was January 7, 1990, which was consistent with her

stated age of 19 years old. Based on her physical appearance,

however, Moody believed that S.F. was lying about her age.

He went back to his police car to run a check on the name

provided by S.F. and discovered that there was an outstanding

arrest warrant on a felony robbery charge for an individual

with the same name and month and day of birth that S.F. provided. The birth year listed, however, was 1993. Moody

thought the woman in the car was “possibly” the same person

4Because S.F. is a juvenile, her initials have been used throughout these

proceedings to protect her identity. 

17006 UNITED STATES v. RODGERS
named on the warrant, but he still had doubts. Moody testified

that in his experience, people sometimes “provide fake or

false names and, to their surprise, the name that they provided

has a warrant for their arrest.” Moody requested that another

officer respond to the scene. When backup arrived, Moody

removed Rodgers and S.F. from the vehicle and separated

them to further investigate S.F.’s identity and her relationship

to Rodgers. Neither Rodgers nor S.F. was placed in handcuffs, and Moody never testified that he had any concerns for

his safety. Once outside the car, Rodgers claimed that he had

just met S.F. and that a friend of his asked him to give her a

ride. 

Moody testified that S.F.’s identity was still not clear to

him, so “based on the fact that [he] felt she lied to [him], provided a false statement to [him], [he] wanted to check to see

if she had any ID that [he] could actually confirm her identity

with.” S.F. had previously indicated that she “didn’t have

any” identification, and Moody did not see a purse or bag that

could harbor S.F.’s identification. Moody testified, however,

that he believed S.F. had identification because “if she’s

going to stick with a story about being 19 years old,” based

on his training and experience, Moody thought “most 19-

year-olds have some form of identification.” Notably, Moody

did not perform a search of S.F.’s person. While S.F. was

secured by another officer at the rear of the vehicle, however,

Moody proceeded to search the passenger area of Rodgers’

car. 

Moody never found any identification. In the center console of the car, however, Moody located a black case containing three bags of a crystalline substance later identified as

methamphetamine. The officers placed Rodgers under arrest.

A search of Rodgers’ person uncovered marijuana, twenty

oxycodone pills, and 284 dollars in cash. A full search of

Rodgers’ car led to the discovery of a firearm, used methamphetamine pipes, and what appeared to be a ledger. Rodgers

was taken to the Pierce County Jail, where he admitted to sellUNITED STATES v. RODGERS 17007
ing narcotics. S.F. was arrested, taken to a juvenile facility,

and booked on the robbery warrant.

A grand jury returned an indictment charging Rodgers with

possession of methamphetamine and oxycodone with intent to

distribute in violation of 21 U.S.C. § 841, with being a felon

in possession of a firearm and an armed career criminal in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and with

possession of a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Rodgers filed a motion to suppress the physical evidence obtained

from his person and vehicle as well as the statements he made

to the police after his arrest. The district court held an evidentiary hearing, during which Moody was the only witness to

testify. In adopting Moody’s testimony as its findings of fact,

the court credited Moody as “entirely believable.” Although

clear in its praise for Moody, the district court’s oral ruling

was less specific on other findings. Despite denying Rodgers’

motion to suppress and upholding the search, the court never

made any specific finding that the search of Rodgers’ car was

supported by probable cause or any other level of particularized suspicion. Rodgers stipulated to a bench trial, and the

court convicted him on all counts. Rodgers appeals the denial

of his suppression motion, arguing that the initial stop, the

extended duration of the seizure, and the search of his vehicle

all violated the Fourth Amendment. We review de novo the

district court’s denial of the motion to suppress, but review

the court’s underlying findings of fact for clear error. See

United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir.

2010); United States v. Turvin, 517 F.3d 1097, 1099 (9th Cir.

2008).

ANALYSIS

A. The Investigatory Stop

[1] The standards that govern investigatory traffic stops are

well known. Police may stop a car to investigate individuals

17008 UNITED STATES v. RODGERS
only where there is “reasonable suspicion” of illegal activity.

See United States v. Montero-Camargo, 208 F.3d 1122, 1129

(9th Cir. 2000) (en banc); see also Terry v. Ohio, 392 U.S. 1

(1968). Here, Moody relied on two independent factors to justify stopping Rodgers’ car: the color discrepancy between the

car’s registration record and the vehicle’s physical appearance

and Rodgers’ presence in a high-crime area. Rodgers contends that these two objective observations indicate entirely

innocuous conduct and thus cannot give rise to reasonable

suspicion. 

[2] We agree that the color discrepancy and high-crime

location, even when considered cumulatively, at best provide

a thin basis for reasonable suspicion that the car was stolen.

The failure to update a vehicle registration to reflect that a car

has been painted is not a citable offense under state or local

law; it is also, of course, not illegal to drive in a high-crime

area. Nevertheless, whether Moody had reasonable suspicion

to stop Rodgers’ vehicle is an exceedingly close question that

we need not answer here. Because we reverse the district

court’s denial of Rodgers’ suppression motion on a separate

ground, we will assume, without deciding, that reasonable

suspicion supported the stop. 

B. The Continuing Investigation

[3] Next, Rodgers challenges the duration of the stop,

arguing that even if the initial stop was constitutionally sound,

Moody impermissibly extended its scope and duration. We

disagree. A “period of detention [may be] permissibly

extended [where] new grounds for suspicion of criminal activity continue[ ] to unfold.” United States v. Mayo, 394 F.3d

1271, 1276 (9th Cir. 2005). 

[4] Throughout the stop the situation was evolving, and

new particularized factors arose that supported the continued

detention of both Rodgers and S.F. As the district court

observed, Moody obtained bits and pieces of suspicious inforUNITED STATES v. RODGERS 17009
mation over time that required additional investigation.

Moody initially observed an extremely young woman in the

car with Rodgers, a fifty-one-year-old male, at 3:30 in the

morning, in an area known for juvenile prostitution. Based on

the late hour and the stark differences in age, Moody appropriately continued to investigate the situation by asking a limited number of questions to both Rodgers and S.F. Rodgers’

explanation—that S.F. was a friend who needed a ride—failed

to dispel Moody’s suspicion given the late hour. S.F.’s statements about her age, which did not appear consistent with her

appearance, also raised a red flag. See, e.g., United States v.

Torres-Sanchez, 83 F.3d 1123, 1128 (9th Cir. 1996) (holding

that continued detention was justified where the defendants’

answers “failed to dispel [the officer’s] suspicions about illegal activity and actually created new ones”). 

[5] Once Moody discovered the outstanding arrest warrant

for S.F., his suspicions escalated further because he now had

additional information to suggest that S.F. had lied about her

identity. Although Moody could have arrested S.F. at that

time and released Rodgers, Moody had ongoing, legitimate

suspicions that Rodgers was engaged in ongoing criminal

activity, particularly juvenile prostitution. Because “new

grounds for suspicion of criminal activity continued to

unfold,” the extended duration of the stop was permissible.

Mayo, 394 F.3d at 1276. 

C. The Vehicle Search

[6] We turn next to the search of Rodgers’ car, which is the

crux of this appeal. The Government acknowledges that probable cause was necessary to support the search, and asks us

to rely on the automobile exception to the warrant requirement as addressed by the Supreme Court in United States v.

Ross, 456 U.S. 798, 820-22 (1982).5“Under the automobile

5

In its briefing and at oral argument, the Government relied exclusively

on Ross, 456 U.S. at 820-22, and argued that probable cause, not some less

17010 UNITED STATES v. RODGERS
exception . . . , police may conduct a warrantless search of a

vehicle if there is probable cause to believe that the vehicle

contains evidence of a crime.” United States v. Brooks, 610

F.3d 1186, 1193 (9th Cir. 2010). “Probable cause exists when,

under the totality of the circumstances, ‘there is a fair probability that contraband or evidence of a crime will be found in

a particular place.’ ” United States v. Luong, 470 F.3d 898,

902 (9th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213,

238 (1983)). 

[7] The Government asserts that Moody had probable

cause to believe that S.F. committed two misdemeanor

offenses under Washington law: obstructing a law enforcement officer in violation of Wash. Rev. Code § 9A.76.020,

demanding standard, was needed to justify the search of Rodgers’ vehicle.

At argument, the Government expressly acknowledged that it was not

relying on Arizona v. Gant, 129 S. Ct. 1710 (2009), and the search incident to arrest exception to the warrant requirement, which appears to

require a level of suspicion less than probable cause, see United States v.

Vinton, 594 F.3d 14, 25 (D.C. Cir. 2010) (“Presumably, the ‘reasonable to

believe’ standard requires less than probable cause, because otherwise

Gant’s evidentiary rationale would merely duplicate the ‘automobile

exception,’ which the Court specifically identified as a distinct exception

to the warrant requirement.”). Although the Government’s rationale is

hardly clear—was it bench marking probable cause against the outstanding warrant?—in the end it doesn’t matter because the Government did not

preserve the issue. See United States v. Ewing, 638 F.3d 1226,1229-30

(9th Cir. 2011) (holding that the government, as appellee, waived any

argument with respect to the district court’s ruling on defendant’s standing

to challenge the search of his vehicle because the issue was not argued in

the government’s briefs); see also Arizona v. Hicks, 480 U.S. 321, 326 &

n.* (1987) (because the state decided to concede, possibly erroneously,

that police only had reasonable suspicion, not probable cause, to search,

the Court determined that the issue was not preserved and adopted the

state’s concession on that legal question). In addition, as a warrantless

search, the Government bears the burden of proving that a “specifically

established exception[ ] to the warrant requirement” applies. United States

v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001) (internal quotation marks

omitted). It is not our role to engineer a path for the Government to meet

that burden, especially where it has conceded that it is not relying on a certain exception to the warrant requirement. 

UNITED STATES v. RODGERS 17011
and making a false or misleading statement to a public servant, in violation of Wash. Rev. Code § 9A.76.175. The Government apparently assumes that because probable cause

existed to arrest S.F. (that is, probable cause existed to believe

S.F committed a crime) it follows a fortiori that Moody had

probable cause to search the vehicle for evidence of that

crime. 

This approach, however, elides an important distinction

between probable cause to search and probable cause to

arrest. In United States v. Henderson, we explained that

[t]he focus of the arrest inquiry is different from that

of the search inquiry. See Greene v. Reeves, 80 F.3d

1101, 1106 (6th Cir. 1996). Officers have probable

cause for an arrest if at the time of the arrest, “the

facts and circumstances within their knowledge and

of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent man in

believing” that the defendant committed an offense.

Hunter v. Bryant, 502 U.S. 224, 228 (1991) (citing

Beck v. Ohio, 379 U.S. 89, 91 (1964)). Officers have

probable cause for a search when “the known facts

and circumstances are sufficient to warrant a man of

reasonable prudence in the belief that contraband or

evidence of a crime will be found.” Ornelas v.

United States, 517 U.S. 690, 696 (1996). “[T]here

may be probable cause to search without probable

cause to arrest, and vice-versa.” Id. (citing 2 Wayne

R. LaFave, Search & Seizure: A Treatise on the

Fourth Amendment § 3.1 (b) at 9 (3d ed. 1996)). 

241 F.3d 638, 647-48 (9th Cir. 2000). 

Both the Supreme Court and this court have highlighted

this distinction. See, e.g., Zurcher v. Stanford Daily, 436 U.S.

547, 556 (1978) (“The critical element in a reasonable search

is not that the owner of the property is suspected of crime but

17012 UNITED STATES v. RODGERS
that there is reasonable cause to believe that the specific

‘things’ to be searched for and seized are located on the property to which entry is sought.”); United States v. O’Connor,

658 F.2d 688, 693 n.7 (9th Cir. 1981) (“Probable cause to

arrest concerns the guilt of the arrestee, whereas probable

cause to search an item concerns the connection of the items

sought with the crime and the present location of the items.”);

Millender v. County of Los Angeles, 620 F.3d 1016, 1029 n.6

(9th Cir. 2010) (en banc).

[8] The relevant question with respect to the search is

whether there was “probable cause to believe that the vehicle

contain[ed] evidence of a crime.” Brooks, 610 F.3d at 1193.

We conclude that there was not. A finding of probable cause

must be supported by the objective facts known to the officer

at the time of the search. See Illinois v. Rodriguez, 497 U.S.

177, 188 (1990) (the “factual determinations bearing upon

search and seizure . . . must be judged against an objective

standard” based on “the facts available to the officer at the

moment” (internal quotation marks omitted)). The inquiry is

a particularized one, requiring factual specificity that “evidence of a crime will be found in a particular place.” Gates,

462 U.S. at 238; see also United States v. Struckman, 603

F.3d 731, 739 (9th Cir. 2010). Police “obtain probable cause

because the facts indicate that they will find what they are

looking for in the place to be searched.” United States v.

Johnson, 256 F.3d 895, 906 (9th Cir. 2001) (en banc) (emphasis added) (Ferguson, J., writing for a majority on this issue).

What is missing in the search of Rodgers’ vehicle for S.F.’s

identification is any specific particularized fact indicating that

S.F. had identification and that such identification was located

in Rodgers’ car. Although Moody testified extensively about

the facts that he relied upon to justify the extended investigation of Rodgers and S.F.—the late hour, the high-crime area,

the suspicious relationship between the two, the evasive

answers to questions, the arrest warrant, and S.F.’s false

statement—none of these facts are probative of whether there

UNITED STATES v. RODGERS 17013
was “probable cause to believe that the vehicle contain[ed]

evidence of a crime.” Brooks, 610 F.3d at 1193. 

[9] Despite his detailed testimony, Moody did not identify

any particular facts or observations that led him to believe

S.F. had identification and that it was inside Rodgers’ car.

Nor can we find any such facts in the record. There is, for

example, no indication that Moody saw S.F. trying to hide

anything in the car, that S.F. was eyeing anything inside the

car, that S.F. made any furtive movements, or that any papers

or objects appearing to be identification were in plain view.

Indeed, the only relevant fact Moody offered—that he never

saw a purse or bag that might have contained S.F.’s

identification—cuts against a finding of probable cause to

search the car. 

[10] When asked during the suppression hearing why he

had reason to believe that S.F. “might have identification,”

Moody’s only response was baffling: “Well, if she’s going to

stick with a story about being 19 years old, I know that, based

on my training an experience, most 19-year-olds have some

form of identification.” But it is undisputed that Moody did

not think S.F. was 19 years old and that she was the passenger, not the driver. Moody’s entire extended investigation was

predicated on his suspicion that S.F. was much younger. The

Government nonetheless expects us to hold that Moody’s reliance on the veracity of the lie—that S.F. was 19 years old—

was somehow reasonable, despite Moody’s belief to the contrary. This approach turns the objective facts standard on its

head—a known lie can hardly be an objective fact. Even if we

were to accept the lie as a half-truth, Moody’s rationale is

nothing more than a half-baked hunch, and it is wellestablished “that ‘hunches’ are insufficient to establish reasonable suspicion, let alone probable cause.” Johnson, 256

F.3d at 905 (quoting Illinois v. Wardlow, 528 U.S. 119, 123-

17014 UNITED STATES v. RODGERS
24 (2000)). Notably, Moody was never asked what led him to

believe the identification was actually within Rodgers’ car.6

As an alternative rationale, the Government offers that it

was reasonable for Moody to assume that S.F. had identification because individuals in Washington can obtain a driver’s

license at sixteen. This backtracking does not fix the gap.

Nothing in the record supports such a rationale. Moody, in

fact, thought S.F. was twelve or fourteen, well below the driving age, and Washington law certainly does not require passengers to carry identification.7

State v. Barwick, 833 P.2d

421, 423 (Wash. Ct. App. 1992), abrogated on other grounds

6The dissent would uphold the search on one of two widely divergent

theories. Either S.F., pretending to be nineteen would have hidden a fake

ID in Rodgers’ car, or “she may have hidden real identification, such as

a YMCA [or Associated Student Body] card, which might reflect that she

was not, in fact, nineteen.” Dissent at 17020. Either of these scenarios are

possible, but neither is probable and neither is supported by any facts in

the record. (Do Associated Student Body cards even exist anymore? Does

a YMCA card even contain an individual’s age? Library cards certainly

don’t.). 

The dissent is predicated on “mights.” But the Fourth Amendment does

not allow us to uphold a search based on imagined circumstances drawn

out of thin air ex post. It requires factual specificity based on the objective

facts known to the officer at the time of the search. All Moody knew that

night was that S.F. had likely lied about her age. Every other assumption

the dissent relies upon to support the search—S.F. could have lied about

having identification, she could have had a fake ID or YMCA card that

could have had her real age on it, and she could have stashed identification

in Rodgers’ car—is nothing more than a hunch crafted in hindsight. 

7We note that the Fourth Amendment does not prevent police from

“ask[ing] people who have legitimately been stopped for identification.”

United States v. Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir. 2007).

Nor is it impermissible for police to arrest an individual for failure to

properly identify herself or produce identification if such conduct violates

state law. See Hiibel v. Sixth Judicial Dist. Court. of Nev., Humboldt

County, 542 U.S. 177, 187-88 (2004). But the Fourth Amendment does

not permit the search of a car for a passenger’s identification where state

law does not require passengers to carry identification and there is no basis

in the record to believe that the identification is located inside the car. 

UNITED STATES v. RODGERS 17015
by State v. Cole, 871 P.2d 656, 658 (Wash. Ct. App. 1994).

But, more importantly, an assumption that most sixteen-yearold passengers have identification does not lead to probable

cause to search every car carrying a teenager absent some

individualized suspicion regarding the teenager, the vehicle in

question, and the crime at issue. 

[11] Without any objective facts indicating that S.F.’s

identification was in Rodgers’ car, we cannot endorse the significant intrusion of the search.8

“The Supreme Court has

emphasized that probable cause ‘demands’ factual ‘specificity’ and ‘must be judged according to an objective standard.’ ” Johnson, 256 F.3d at 905 (quoting Terry, 392 U.S. at

21-22 n.18)). The search was unconstitutional. All the physical evidence seized and Rodgers’ subsequent statements to

police must be suppressed under the exclusionary rule. See

Wong Sun v. United States, 371 U.S. 471, 485 (1963); United

States v. Crawford, 372 F.3d 1048, 1054 (9th Cir. 2004) (en

banc). 

REVERSED AND REMANDED.

8We acknowledge the difficult circumstances police officers face in

making quick judgments and are wary of overanalyzing their investigative

methods, especially when a child’s life could be in danger. But nothing

about the search here addresses that concern. The search of the vehicle for

S.F.’s identification as a means to protect S.F. seems superfluous at best.

Police already had more than enough evidence to arrest S.F. and take her

into custody. Moody knew of the outstanding warrant and had reason to

believe S.F. committed new crimes based on her false statements. As it

turned out, police never recovered any identification, and yet they still

arrested S.F. on the warrant. In addition, there is no indication police

searched S.F.’s person, the most likely place to find identification, before

searching Rodgers’ car. It is difficult to justify the serious invasion of

Rodgers’ privacy in search of evidence that bore no relationship to concerns about S.F. 

17016 UNITED STATES v. RODGERS
CALLAHAN, Circuit Judge, dissenting:

The police acted admirably, reasonably, and lawfully

throughout the events giving rise to this case. Accordingly, I

respectfully dissent.

The initial stop of the car was lawful. Officer Moody testified that there was a stark difference between the color listed

on the car registration records and the actual color of the car.

Officer Moody, an experienced police officer, thought this

discrepancy to be suggestive that the car was stolen. Further,

the stop was made at 3:30 a.m., in a high-crime area that had

a prevalence of car thefts. These factors were more than sufficient to support a finding of reasonable suspicion. See United

States v. Malone, 886 F.2d 1162, 1165 (9th Cir. 1989)

(“Wholly lawful conduct may justify a reasonable suspicion

of criminal activity.”) (internal citation omitted).

For a search to be lawful under United States v. Ross, 456

U.S. 798 (1982), there must be “probable cause to believe that

contraband [or evidence] is concealed somewhere within” the

car. Id. at 800. As the majority notes, probable cause to search

is evaluated in light of the totality of the circumstances.

United States v. Pinela-Hernandez, 262 F.3d 974, 978 (9th

Cir. 2001). Thus, context is key. Here, when the search is considered in context, it was supported by probable cause, and

thus justified under Ross.

In the wee hours of the morning and in a high crime area

known for juvenile prostitution, Officer Moody had stopped

Rodgers, a man in his fifties who was driving a young girl.

The girl appeared to be only twelve or fourteen years old, and

she was “nervous” and “didn’t want to make eye contact.”

She told Officer Moody that she did not have any identification. Meanwhile, the older man told Officer Moody that the

girl was “a friend” of his, which — under the circumstances

— aroused Officer Moody’s suspicions. Understandably,

Officer Moody was concerned that the girl was an underage

UNITED STATES v. RODGERS 17017
prostitute and the man was “pimping [her] out,” or that the

girl was a runaway or a missing person. He simply did not

know. So, he continued to investigate. 

He asked the girl her name and birthdate, and the girl said

that she was nineteen years old and provided a birthdate consistent with that age. Based on his observations about the

girl’s youthful appearance, Officer Moody thought she was

lying, and he ran a police records check on the information

she gave him. He discovered that there was an outstanding

arrest warrant on a robbery charge for a sixteen year-old with

the same name, month, and day of birth that the girl had provided. Officer Moody thought the young girl was “possibly”

the same person named in the warrant, which would make her

sixteen years old. He did not know her true identity or her

relationship to the older man, and he reasonably believed that

she had already lied to him once. Under these circumstances,

Officer Moody did what any reasonable officer would do, and

what any parent or concerned member of the public would

want an officer to do when a young girl’s life may be in danger: he continued to investigate. 

He called for backup, and when another officer arrived on

the scene, Officer Moody asked him to estimate the age of the

young girl. The other officer said he thought the girl was only

twelve years old. At this point, the girl and the older man were

told to exit the car, and upon further police questioning the

man changed his story and said he had just met the girl (as

opposed to his earlier statement that she was “a friend” of

his), and that he was giving her a ride at another friend’s

request. 

At this point, Officer Moody had serious concerns as to the

girl’s age, identity, and the reason(s) for her presence in the

car. He did know that she was riding in a car with a much

older man, in the early morning hours and in an area known

for juvenile prostitution, and that the older man had changed

his story about his relationship with the girl. He also knew

17018 UNITED STATES v. RODGERS
that from all appearances, the girl had lied about her age, thus

committing the crimes of making a false statement to a police

officer and obstructing a law enforcement officer. 

Officer Moody thought that, despite what the girl had told

him earlier, she did have some identification with her because

“if she’s going to stick with a story about being 19 years old,

I know that, based on my training and experience, most 19-

year-olds have some form of identification.” On the other

hand, she might be as young as 12, and in that case she might

have identification in the form of an “ASB card”

1

 or “YMCA

card.” Identification for the girl, whether false or real, would

be evidence of her crimes of making a false statement or

obstruction. Identification could also offer insight as to

whether the girl needed police protection. Under these circumstances, Officer Moody reasonably searched the “lunge

area of the car” — the area in which she could have hidden

her identification — for identification, and found the evidence

that Rodgers now seeks to suppress. 

Contrary to the majority view, the above facts do support

a finding of probable cause for the search. Identification such

as drivers’ licenses, “ABS” cards, and “YMCA” cards are

obviously small enough to be easily stashed in car compartments and alcoves. Here, Officer Moody correctly suspected

that the girl and her older male companion were hiding the

girl’s true age, and he was reasonable in suspecting that they

were hiding their relationship and their plans for the late hour.

Believing that the girl had already lied about her age, it was

certainly reasonable for Officer Moody to suspect that she had

also lied about not having identification with her. Accordingly, he reasonably searched the lunge area of the car.

The majority notes that Officer Moody did not observe a

1This term is not defined in the record, but presumably Officer Moody

was referring to an identification card issued by a school, an “Associated

Student Body” card. 

UNITED STATES v. RODGERS 17019
bag or a purse where identification could be stashed, but the

lack of a bag or purse only heightened the possibility that the

girl may have hidden her identification in the car. Given that

the girl was pretending to be nineteen, she may have hidden

false identification to support that story, which would be evidence of her crimes of making a false statement or obstruction. Or, she may have hidden real identification, such as a

YMCA card, which might reflect that she was not, in fact,

nineteen. That would also be evidence of her crimes. Officer

Moody already thought the girl was lying about her age, so it

makes sense that he disbelieved her comment that she did not

have any identification on her.2

Probable cause does not require airtight certainty. See

United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006)

2The majority dismisses these scenarios as mere “hunches” and asks,

“Do Associated Student Body cards even exist anymore? Does a YMCA

card even contain an individual’s age?” Majority at 17015. I do not know

the answers to these questions — and neither does the majority — but in

any case they are not dispositive. Officer Moody testified about his belief

that the young girl may have had an ASB or YMCA card that would shed

light on her true identity, and this belief was reasonable under the circumstances (particularly since it appears that neither the majority nor myself

knows enough about ASB and YMCA cards to suggest otherwise). Officer

Moody also testified to his belief that the girl might have identification

because she was “stick[ing] to a story about being 19 years old.” Notably,

the district court found Officer Moody to be “entirely believable.” 

Contrary to what the majority states, what Officer Moody “knew” that

night was more than just that the girl had lied about her age. Majority at

17014-15. As I stated earlier, context is key. A girl and an older man were

traveling together at a late hour in an area known for underage prostitution; the girl looked incredibly young and was lying about her age; the

older man was changing his story about who the girl was and why she was

with him; identification cards are easily stashed in small places; and there

was no purse or bag anywhere near the girl (which might suggest an alternate place to keep identification). These facts and others, as well as inferences that logically flow from them, reasonably suggested to Officer

Moody that he would find identification for the girl in the lunge area of

the car. Officer Moody’s search of the lunge area was supported by probable cause. 

17020 UNITED STATES v. RODGERS
(en banc). In close cases where a child’s life may be in danger, police officers should receive the benefit of the doubt —

not hindsight admonitions from the bench. Here, the facts

known to Officer Moody at the time of the search were sufficient to support probable cause, and the search was lawful

under Ross.

In addition, although the Government did not rely on Arizona v. Gant, 556 U.S. 332 (2009), we can affirm on any

grounds supported by the record. Johnson v. Riverside

Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

Here, Gant authorizes the search because it was reasonable

for Officer Moody to believe that the lunge area of the car

contained some identification for the young girl, and identification would be evidence of two crimes for which she was

arrested (i.e., making a false statement and obstruction).

Moreover, the identification might reveal whether the girl was

a minor, and in need of protection. Even if the probable cause

standard were not met here — which it is, as explained above

— the facts are sufficient to support the “reasonable to

believe” standard set forth in Grant.

For the reasons set forth above, I respectfully dissent.

UNITED STATES v. RODGERS 17021