FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-10079

Plaintiff-Appellee, D.C. No.

v.  CR-03-00157-

M PMP/LRL ARK LAMOND WILLIS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

Argued and Submitted

December 8, 2004—San Francisco, California

Filed December 19, 2005

Before: Alex Kozinski, William A. Fletcher, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee;

Dissent by Judge W. Fletcher

16549
COUNSEL

Anne R. Traum, Assistant Federal Public Defender, Las

Vegas, Nevada, for the defendant-appellant. 

UNITED STATES v. WILLIS 16551
Andrew W. Duncan (argued) and Thomas S. Dougherty,

Assistant United States Attorneys, Las Vegas, Nevada, for the

plaintiff-appellee. 

OPINION

BYBEE, Circuit Judge: 

Appellant Mark Lamond Willis appeals the denial of his

motion to suppress evidence following his conditional guilty

plea for violation of 18 U.S.C. §§ 922(g) and 924(a)(2), felon

in possession of a firearm and forfeiture of the firearm. Willis

moved to suppress the firearm found in his possession as the

fruit of an illegal seizure. See U.S. CONST. amend. IV. Finding

his arguments unpersuasive, we affirm the district court’s

denial of the motion to suppress evidence and affirm Willis’s

conviction. 

I

On December 19, 2002, around 2:00 a.m., Las Vegas Metropolitan Police Department (“LVMPD”) Officer Carl Boehmer “observed a [white two-door] vehicle turning rapidly onto

Las Vegas Boulevard . . . .” Officer Boehmer testified that the

vehicle’s rapid turn attracted his attention because “[i]t was

just a more excessive turn than a citizen should [make].” He

followed the vehicle as it made two more quick turns before

stopping in front of an apartment building in a high-crime

area. Officer Boehmer then watched a male (later identified

as Willis) get out of the car, sprint across the street and up the

stairs to the second floor of an apartment building, and pound

on the door until he was admitted into one of the apartments.

When Officer Boehmer drove past the vehicle, he noticed that

Willis had left the windows down, which he thought was

unusual because there are “many stolen vehicles in that area

. . . [and] gang activity . . . .” He then ran a check on Willis’s

16552 UNITED STATES v. WILLIS
Colorado license plate, and notified his dispatch unit to

request a backup unit. 

The LVMPD Communications Center informed Officer

Boehmer that the car was listed as a “suspicious vehicle” and

that there was a National Crime Information Center (“NCIC”)

missing person’s report or “hit” associated with the license

plate.1 After receiving this information, Officer Boehmer

positioned himself in an alley where he could watch the car

and the apartment. Shortly thereafter, Officer D. Miller

arrived, and as Officer Boehmer was describing the situation,

Willis exited the apartment, reentered his vehicle, made an

illegal U-turn, and drove a short distance before pulling over

in front of a second apartment complex a block or two away.

Officers Boehmer and Miller each made U-turns, turned on

their overhead lights, and boxed in Willis’s car. 

As the officers parked their vehicles, Willis stepped out of

his car and looked nervously from side-to-side at the patrol

cars. Officer Boehmer testified that he believed that Willis

was contemplating running away, and he ordered Willis to

step in front of the vehicle and show his hands. Officer Boehmer testified that he “immediately began ordering commands

to him to step to the front of my vehicle, and also to take his

hands out of his pockets because at the time he had his hands

in his jacket pockets. . . . [F]rom my experience again, someone that . . . immediately opens up their vehicle and jumps out

and begins looking side to side pretty frantically is, in my

experience they’ve always taken off running. So before . . .

he had a chance to, I just started giving commands.” 

1The NCIC is “a national criminal records data system administered by

the Federal Bureau of Investigation. See 28 U.S.C. § 534. NCIC contains

criminal history information, including outstanding arrest warrants, and is

available to police departments nationwide. State law enforcement agencies are connected to NCIC through their computer systems.” Case v. Kitsap County Sheriff’s Dep’t, 249 F.3d 921, 923-24 (9th Cir. 2001). 

UNITED STATES v. WILLIS 16553
Willis complied, and as Officer Boehmer approached him,

Officer Boehmer asked, “Do you have anything on you I

should know about?” Willis replied, “Yes, I do.” When Officer Boehmer asked “what is it?”, Willis answered: “a gun.”

Officer Miller requested permission from Willis to look inside

his pockets, which Willis gave, and the officer retrieved a

fully loaded .25 caliber handgun from Willis’s jacket. 

Officer Boehmer questioned Willis about the firearm while

Officer Miller “proceeded to take care of the missing person[’s report].” Willis explained to the officers that the person

identified in the report was his girlfriend and that she was in

his apartment.2 Officer Miller conducted an interview with

Willis’s girlfriend upstairs in the apartment complex. Officer

Boehmer testified that “she was okay, and she stated that she

had talked with her family and it [the NCIC missing person’s

report] needed to be cleared out of the system.” 

Willis admitted to the officers that he had been convicted

of crimes in Hawaii and Colorado. Officer Boehmer confirmed this through a criminal history check, and he arrested

Willis for being an “ex-felon in possession of a firearm, carrying a concealed weapon, [and] ex-felon failure to register.” 

Willis moved to suppress the evidence of the handgun. He

argued that the officers had violated his Fourth Amendment

rights by detaining and searching him, and that the evidence

2LVMPD officers had stopped Willis and his girlfriend a week earlier,

on December 12, in response to the NCIC report. During that encounter,

police questioned Willis about the missing person’s report and determined

that Willis’s girlfriend was not in any danger. LVMPD requested that the

Escondido Police Department (“EPD”), which issued the report, call and

confirm that the missing person’s report was still current. EPD confirmed

the report, and asked LVMPD to send a “locate,” which is information

stating that the missing person has been located in the area. LVMPD contacted Willis’s girlfriend’s family and EPD to give them information about

her, but the record does not indicate when or if LVMPD sent the requested

“locate” to EPD. 

16554 UNITED STATES v. WILLIS
of the handgun was the illegal fruit of that detention and

search. The magistrate judge concluded in his report and recommendation that the officers had no “reasonable articulable

suspicion . . . of criminal activity” to justify an investigatory

Terry stop. See Terry v. Ohio, 392 U.S. 1, 20-22 (1968). However, the magistrate judge found that “[u]nder these circumstances . . . Officer Boehmer’s community caretaking function

required him to take reasonable steps in an effort to determine

the current status of the alleged missing person. His failure to

do so would have amounted to a dereliction of duty.” 

The district court adopted the magistrate judge’s report and

recommendation over Willis’s objections. Willis entered a

conditional guilty plea, preserving his objection to the denial

of his motion to suppress the evidence recovered during the

search. The district court sentenced Willis to a term of thirtythree months imprisonment. Willis appeals the denial of his

motion to suppress.3

II

Willis argues that neither the community caretaking function nor the related emergency aid doctrine justified his seizure. He also argues that the police officers did not have

reasonable suspicion for the stop, and that the government

waived its arguments advocating reasonable suspicion when

it failed to object to the findings of the magistrate judge’s report.4

3We review the district court’s denial of Willis’s motion to suppress

evidence de novo; the district court’s factual findings are reviewed for

clear error. See United States v. Fernandez-Castillo, 324 F.3d 1114, 1117

(9th Cir. 2003). 

4Willis argues that the government waived its reasonable suspicion

argument by failing to present it to the district court when the district court

adopted the magistrate judge’s report and recommendation denying Willis’s motion to suppress. See In re Grand Jury Subpoena (Mark Torf/Torf

Environmental Management), 357 F.3d 900, 910 (9th Cir. 2004). Here, the

government prevailed before the magistrate judge. A party prevailing

before a magistrate judge need not object to the magistrate’s report and

UNITED STATES v. WILLIS 16555
We decline to determine whether the community caretaking

function, or the emergency aid doctrine, justified the officers’

detention of Willis. Instead, we hold that the detention came

within the scope of a valid traffic stop, because Officer Boehmer had at least reasonable suspicion—if not probable cause

—to stop Willis for violating the traffic laws. See Whren v.

United States, 517 U.S. 806, 810 (1996) (“As a general matter, the decision to stop an automobile is reasonable where the

police have probable cause to believe that a traffic violation

has occurred.”); see also Berkemer v. McCarty, 468 U.S. 420,

439 (1984) (“the usual traffic stop is more analogous to a socalled ‘Terry stop’ than to a formal arrest”; holding that a traffic stop requires reasonable suspicion (internal citation omitted)); United States v. Lopez-Soto, 205 F.3d 1101, 1104-05

(9th Cir. 2000) (“the Fourth Amendment requires only reasonable suspicion in the context of investigative traffic stops”;

holding that “the Court in Whren [did not] intend[ ] to change

this settled rule”). Since Willis’s detention was supported by

reasonable suspicion, the officers could reasonably question

Willis to ensure their own safety. Once Willis admitted posrecommendation in order to preserve its right to argue an alternative theory in support of the recommendation on appeal. See Britt v. Simi Valley

Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983) (“The language of

[28 U.S.C. § 636(b)(1)] does not indicate that failure to object to a magistrate’s recommendation will be an absolute bar to appeal from the district

court’s decision.”), overruled on other grounds, United States v. ReynaTapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). But cf. McCall

v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (holding that waiver is

appropriate where a party’s failure to object to the magistrate judge’s conclusions of law was coupled with its failure to raise the objection until its

reply brief); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1222-24 (D.

Ariz. 2003) (noting a possible intra-circuit conflict on whether a failure to

object to a magistrate’s conclusions of law waives the right to appeal

them). Although Britt and McCall are to some degree in tension, Britt’s

core holding—that a prevailing party need not object to a magistrate

judge’s conclusions of law in order to preserve those grounds for appeal—

remains good law, at least where the objections are raised on appeal in

either the prevailing party’s opening or answer brief. See 28 U.S.C.

§ 636(b)(1). 

16556 UNITED STATES v. WILLIS
sessing the weapon, the officers’ search to relieve Willis of

his weapon was also reasonable. 

A

[1] “The Fourth Amendment prohibits ‘unreasonable

searches and seizures’ by the Government, and its protections

extend to brief investigatory stops of persons or vehicles that

fall short of traditional arrest.” United States v. Arvizu, 534

U.S. 266, 273 (2002) (citing United States v. Cortez, 449 U.S.

411, 417 (1981); Terry v. Ohio, 392 U.S. 1, 9 (1968)). Such

investigatory stops are justified by “reasonable suspicion” that

criminal activity may be afoot. Arvizu, 534 U.S. at 273; see

also United States v. Sokolow, 490 U.S. 1, 7 (1989); Cortez,

449 U.S. at 417. “[T]he Fourth Amendment’s proper function

is to constrain, not against all intrusions . . . but against intrusions which are not justified in the circumstances, or which

are made in an improper manner.” Schmerber v. California,

384 U.S. 757, 768 (1966). The “touchstone of the Fourth

Amendment is reasonableness. The Fourth Amendment does

not proscribe all state-initiated searches and seizures; it

merely proscribes those which are unreasonable.” Florida v.

Jimeno, 500 U.S. 248, 250 (1991) (citations omitted). 

[2] Although we look to reasonableness in determining the

propriety of a stop under the Fourth Amendment, the Supreme

Court’s decision in Whren v. United States does not require

us to determine the reasonableness of a temporary detention

if there is reasonable suspicion to conclude that a traffic violation occurred. Whren, 517 U.S. at 818-19. In Whren, a unanimous Supreme Court held that a stop was reasonable under

the Fourth Amendment where officers had probable cause to

believe that the petitioner violated the traffic code, even if the

ultimate charge was not related to the traffic stop. Id. at 808-

09. Police observed a truck in a “high drug area” stopped at

stop sign for an excessive amount of time, which then turned

without signaling and sped off at an excessive speed. Id. at

808. Once the police caught up to the vehicle, the officers

UNITED STATES v. WILLIS 16557
observed Michael Whren, one of the passengers, holding two

large bags of what appeared to be crack cocaine. Whren

argued that the stop had not been justified by probable cause

to believe that the occupants were engaged in illegal drug

activity, and that the officers’ asserted ground for approaching

the vehicle, which was to give them a warning about traffic

violations, was pretextual. Id. at 809. 

The Supreme Court held that the officers had probable

cause to believe that various provisions of the traffic code had

been violated. Id. at 810. The Court specifically declined to

hold that the Fourth Amendment test for traffic stops should

be “whether a police officer, acting reasonably, would have

made the stop for the reason given.” Id. Rather, the Court

explained that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” and that

“we have been unwilling to entertain Fourth Amendment

challenges based on the actual motivations of individual officers.” Id. at 813. Whren stands for the proposition that if the

officers have probable cause to believe that a traffic violation

occurred, the officers may conduct a traffic stop even if the

stop serves some other purpose. See also Devenpeck v. Alford,

125 S. Ct. 588, 593-94 (2004) (“[The] subjective reason for

making the arrest need not be the criminal offense as to which

the known facts provide probable cause.”). 

[3] There is ample evidence that the officers had at least

reasonable suspicion to stop Willis for his traffic violations.

First, Officer Boehmer testified that he watched Willis make

an illegal U-turn on Hoover. Second, Officer Boehmer testified that he watched Willis make a rapid turn, stating, “It was

a traffic violation being that it was a turn — making a turn

more excessive than it should have been [and] . . . it would

have been a municipal traffic code [violation].” Third, according to testimony by Officer Boehmer, Willis’s car also

appeared to accelerate excessively. Cf. Whren, 517 U.S. at

808 (police stopped car after it “turned suddenly to its right,

without signaling, and sped off at an ‘unreasonable’ speed.”)

16558 UNITED STATES v. WILLIS
Officer Boehmer specifically noted that after he observed the

rapid turn, “I was going to follow him to see if he had made

any other — other traffic violations . . . .” (emphasis added).

It is clear from Officer Boehmer’s testimony that he observed

several traffic violations, including driving too fast, rapid

turns, and an illegal U-turn.5

The fact that Willis had parked his car at the point that the

officers detained him does not affect our analysis. Officer

Boehmer did not stop Willis immediately after he first noted

Willis’s traffic violations, but followed the car to “see if [Willis] made any other traffic violations.” Moreover, any delay

between Willis’s traffic violations and the officers’ actions

was insignificant. The officers detained Willis as soon as they

observed him pull over. 

[4] Under Whren, we cannot second-guess the reasons for

the officer’s stop. Whren, 517 U.S. at 813 (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”).6

 Indeed, the Supreme Court recently

5The dissent purports to take Officer Boehmer at his word, see Dissent

at 16564, but then proceeds to doubt his observation that Willis committed

traffic infractions. See id. at 16569-70, 16575-77. The dissent’s doubts are

based on the fact that the officer did not provide information such as the

posted speed limit, the exact speed Willis was traveling or whether the

incident occurred in a business district. But the officer has satisfied the

government’s burden of production by coming forward with “specific and

articulable facts,” Terry, 392 U.S. at 21, to support his suspicion of illegal

activity. The defendant has the burden of proof on a motion to suppress

evidence, see United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir.

2005), and if Willis wanted to cast doubt on Officer Boehmer’s statement

that his erratic behavior constituted a traffic infraction, he was required to

introduce contrary evidence or get the officer to retract his testimony on

cross-examination. Defendant did neither, so Officer Boehmer’s testimony

that he observed Willis committing traffic infractions stands unrefuted. 

6The dissent relies on the fact that the magistrate judge “found that the

officers did not have a reasonable suspicion of criminal activity that would

justify a [Terry] stop.” Dissent at 16563. The magistrate judge found, in

pertinent part, as follows: 

UNITED STATES v. WILLIS 16559
affirmed this proposition in Devenpeck: “Our cases make

clear that an arresting officer’s state of mind (except for the

facts that he knows) is irrelevant to the existence of probable

cause.” 125 S. Ct. at 593-94. Therefore, as long as “the officers had probable cause to believe that [Willis] had violated

the traffic code[,] . . . the stop [was] reasonable under the

Fourth Amendment.” Whren, 517 U.S. at 819. The officer testified that he was planning on conducting a vehicle stop “because of the information of the NCIC missing person . . .

[and] because of the way the vehicle was evading me and

conducting an illegal U-turn also, in the middle of Hoover.”

Since Officer Boehmer could have relied on the traffic violaHere, the court finds that the totality of the circumstances

described by Officer Boehmer did not give rise to a “reasonable

articulable suspicion” that Willis was engaged in or about to

engage in some identifiable form of criminal activity. Although

Boehmer may have seen Willis exceeding the speed limit, the

reason Boehmer wanted to stop him was not to issue a traffic

citation; it was to inquire into the circumstances giving rise to the

NCIC missing person hit. 

To the extent the magistrate judge made the same mistake as the dissent,

by finding reasonable suspicion for a traffic stop lacking based on the officer’s subjective motivations, we reverse. The parsing of police motives —

as opposed to “articulable facts,” Terry, 392 U.S. at 21 — is precisely

what Whren tells us we may not do. See Whren, 517 U.S. at 811 (refusing

to “endors[e] the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred”). 

Nor need we remand to establish the basis for a Terry stop. See Dissent

at 16577-78. The magistrate judge made a factual finding after an evidentiary hearing that Willis “made a U-turn on Hoover.” Officer Boehmer testified that this turn was illegal, and his testimony is unrefuted. The

magistrate judge’s statement that “[t]he court need not assess the credibility of the officer’s testimony about Willis’s driving” presumably refers

only to Officer Boehmer’s testimony that Willis was traveling at an excessive rate of speed, since the excessive speed allegation — unlike the fact

that Willis “made a U-turn on Hoover” — was not part of the magistrate

judge’s factual findings. Because the illegal U-turn was sufficient to justify the traffic stop, no remand is required. 

16560 UNITED STATES v. WILLIS
tion as a justification for stopping Willis, the stop was valid

under Whren.

7

The dissent argues that Willis’s detention was not a traffic

stop because “Officer Boehmer never mentioned any traffic

violation or issued any traffic citation.” Dissent at 16576. But

Officer Boehmer explained that by the manner in which Willis exited his car, Boehmer thought Willis was about to run.

It was in the ensuing quick exchanges between Boehmer and

Willis that Boehmer discovered that Willis was armed and

arrested him. We think it was reasonable for the officers to

view any traffic violations as inconsequential in light of Willis’s arrest. Whren and Lopez-Soto require that the officers

have reasonable suspicion to stop a driver for traffic infractions, not that the officers issue citations.8

B

[5] Once the police stopped Willis, they could, within reason, search the area and question Willis about weapons for

their own safety. “Police officers are entitled to employ reasonable methods to protect themselves and others in potentially dangerous situations.” Allen v. City of Los Angeles, 66

F.3d 1052, 1056-57 (9th Cir. 1995) (citing United States v.

7Willis also argues that the evidence seized in the stop should be

excluded because the police had stopped Willis the week before based on

the same NCIC report. We find no basis for excluding the evidence. There

is nothing in the record that shows Officers Boehmer and Miller were

aware that the NCIC missing person’s report was outdated, nor is there

evidence that the LVMPD deliberately failed to send a “locate” to the

Escondido Police Department. In any event, because the officers had at

least reasonable suspicion to stop Willis for a traffic violation, the validity

of any other reasons they may have had to stop him becomes irrelevant.

8

Indeed, in Whren, the plainclothes vice officer who stopped Whren

after observing apparent traffic violations testified that “he did not intend

to issue a ticket to the driver for stopping too long at the stop sign, but he

wished to stop the Pathfinder to inquire why it was obstructing traffic and

why it sped off without signalling in a school area.” United States v.

Whren, 53 F.3d 371, 373 (D.C. Cir. 1995), aff’d, 517 U.S. 806 (1996). 

UNITED STATES v. WILLIS 16561
Jacobs, 715 F.2d 1343, 1345-46 (9th Cir. 1983)). Our cases

have justified the use of force in making a stop if it occurs

under circumstances justifying fear for an officer’s personal

safety. See Jacobs, 715 F.2d at 1345-46; United States v.

Beck, 598 F.2d 497, 501 (9th Cir. 1979). In this case, Officer

Boehmer merely asked Willis if he had anything that Officer

Boehmer should know about. He did not take more extreme

measures, but simply asked Willis a question to ensure the

officers’ personal safety. Officer Boehmer did not act unreasonably in ensuring his personal safety and the safety of his

fellow officer. Indeed, even before Officer Boehmer was notified about the NCIC hit, he requested backup for his own

safety. As he testified, “I notified dispatch on the radio that

I was requesting a backup unit. . . . For officer safety. Due to

the suspicious situation, the known gang, prostitution and

drug activity in the area . . . for officer safety, I wanted

another officer there, and the time of night.” 

[6] Given everything that the officers knew, including the

NCIC hit, Willis’s erratic driving, the high-crime area, and

Willis’s nervous and agitated state, Officer Boehmer’s question to Willis eliciting information about Willis’s gun was

reasonable. Once Willis informed the officers that he was carrying a firearm, the officers were entitled to seize the firearm

in order to avoid any possibility that Willis would use it

against them. The evidence of possession of a firearm was not

the fruit of an illegal search, and the evidence need not have

been suppressed. 

III

The district court’s denial of the motion to suppress the evidence is affirmed. Willis’s conviction is affirmed. 

AFFIRMED. 

16562 UNITED STATES v. WILLIS
W. FLETCHER, Circuit Judge, dissenting: 

In his Report and Recommendation, the magistrate judge

found that because defendant Mark Willis had already voluntarily stopped his car, Officers Carl Boehmer and D. Miller

did not perform a traffic stop under Whren v. United States,

517 U.S. 806 (1996). Because the magistrate judge found that

there had been no traffic stop, he specifically declined “to

assess the credibility of the officer’s testimony about Willis’s

driving.” The magistrate judge further found that the officers

did not have a reasonable suspicion of criminal activity that

would justify a stop under Terry v. Ohio, 392 U.S. 1 (1968).

However, the magistrate judge found that the stop was justified by the community caretaking function under Cady v.

Dombrowski, 413 U.S. 433 (1973). In denying Willis’s

motion to suppress, the district court adopted without change

the Report and Recommendation. 

The majority declines to affirm the district court’s decision

based on either Terry or Cady. Instead, it affirms on a ground

explicitly rejected by the magistrate judge and the district

court — that Officers Boehmer and Miller performed a permissible traffic stop under Whren. For two independent reasons, I respectfully dissent. 

First, Officer Boehmer was required to present “specific,

articulable facts” to support his contention that there was reasonable suspicion that Willis had violated the traffic laws, and

thereby to justify a traffic stop under Whren. Terry, 392 U.S.

at 21; United States v. Michael R., 90 F.3d 340, 346 (9th Cir.

1996). Despite ample opportunity, he did not do so. Second,

Whren applies only to “run-of-the-mine” traffic stops. 517

U.S. at 819. The stop at issue in this case was anything but

“run-of-the-mine,” and therefore does not qualify as a traffic

stop under Whren. 

I. Facts

Only two people testified at the suppression hearing before

the magistrate judge, Officer Boehmer of the Las Vegas MetUNITED STATES v. WILLIS 16563
ropolitan Police Department, and defendant Willis. The magistrate judge wrote that he “need not assess the credibility of

the officer’s testimony about Willis’s driving” because he

found that no traffic stop occurred, given that “Willis voluntarily pulled his car over in front of his own residence before

Officers Boehmer and Miller swooped in and surrounded

him.” (Emphasis in original.) For purposes of my dissent, I

assume that Officer Boehmer testified truthfully about what

he saw and thought he saw. 

As will be apparent, there are two problems with Officer

Boehmer’s testimony. First, as to his justification for the traffic stop, the problem is not with what Officer Boehmer stated.

Rather, the problem is what he did not state. That is, Officer

Boehmer’s testimony does not contain sufficient “specific,

articulable facts” to justify a traffic stop. See Terry, 392 U.S.

at 21, Michael R., 90 F.3d at 346. Second, as to the nature of

the stop, Officer Boehmer’s testimony makes clear that his

detention of Willis was anything but a “run-of-the-mine” traffic stop. Because it was not such a traffic stop, it cannot be

justified under Whren. 

A. Willis’s Driving

Early in the morning of December 19, 2002, Willis, an

African-American male, was driving a car with Colorado

license plates within the city limits of Las Vegas, Nevada.

Officer Boehmer testified that he began to follow Willis in a

marked patrol car after seeing him make a “rapid turn” from

Hoover Avenue right onto Las Vegas Boulevard. Officer Boehmer testified at the hearing that three aspects of Willis’s

driving warranted a stop for traffic violations — his “rapid

turn” onto Las Vegas Boulevard, his accelerating and speeding after that turn, and his later U-turn on Hoover Avenue. I

consider them in sequence. 

1. “Rapid Turn”

Officer Boehmer testified that the “rapid turn” onto Las

Vegas Boulevard from Hoover Avenue was “more excessive

16564 UNITED STATES v. WILLIS
than it should have been,” and that he believed this turn violated the traffic laws. Officer Boehmer elaborated in an

exchange with the magistrate judge:

Q: What do you mean that the turn is more excessive than it should have been? 

A: Well, the speed is more excessive than I’d say

operating speed would be. 

Q: All right. What is the traffic code violation? 

A: I don’t know, Your Honor. 

Q: No citation was issued in this case? 

A: No. 

Q: Do you have any idea what — I mean, is there

— this was in the city of Las Vegas and would have

been under the — either the state’s — 

A: It would have been — it would have been a

municipal traffic code. Yes, Your Honor. 

Q: Okay. And you don’t know what the traffic

code would be? 

A: No, Your Honor. I don’t really write too many

tickets. 

Q: Okay. 

A: I just mostly do criminal investigations. 

2. Accelerating and Exceeding the Speed Limit

Officer Boehmer testified that after turning right onto Las

Vegas Boulevard, Willis turned right onto Charleston BouleUNITED STATES v. WILLIS 16565
vard, turned right onto Third Street, and finally turned right

back onto Hoover Avenue. The distance on Las Vegas Boulevard between Hoover Avenue and Charleston (i.e., between

Willis’s first and second turns) is one block. The distance on

Charleston between Las Vegas Boulevard and Third Street

(i.e., between his second and third turns) is two blocks. The

distance on Third Street between Charleston and Hoover (i.e.,

between his third and fourth turns) is a block and a half. After

his fourth right turn back onto Hoover, Willis parked his car

on the south side of the street at or near the northwest corner

of Third and Hoover. Willis traveled essentially in a circle,

covering a total distance of somewhere between four-and-ahalf and five blocks. 

On direct, Officer Boehmer testified that he was driving

northbound on Fourth Street at the intersection of Fourth and

Hoover when he first saw Willis. Officer Boehmer was one

block away from Willis, who at that moment was making his

“rapid” right turn from Hoover onto Las Vegas Boulevard.

Officer Boehmer testified that he turned right onto Hoover

toward Las Vegas Boulevard to follow Willis. Then, as Officer Boehmer turned right onto Las Vegas Boulevard from

Hoover, he saw Willis — still one block ahead of him —

turning right onto Charleston. Officer Boehmer testified, “I

accelerated to attempt to catch up with the vehicle because it

was apparent to me, with the distance he had gained, he had

been accelerating. I then made a westbound turn onto Charleston, and at the time the vehicle was just beginning to make a

turn onto northbound Third Street.” Boehmer testified that in

his opinion Willis was trying to evade him. He said, “Just

from my experience — my three years experience, in the past

people trying to evade me, make rapid continuous turns like

that.” 

On further questioning by the magistrate judge, Officer

Boehmer reiterated his view that Willis’s right turn onto Las

Vegas Boulevard had been a traffic violation. He also stated

16566 UNITED STATES v. WILLIS
for the first time that, although he could not tell “exactly how

fast” Willis was traveling, he was exceeding the speed limit:

Q: [A]s you reached Hoover, to your right you

looked and saw this white vehicle making a right

turn from Hoover onto Las Vegas Boulevard southbound? 

A: Yes. Yes, Your Honor. 

Q: A rapid turn? 

A: Yes, a rapid turn. 

Q: Was it a traffic violation in your judgment? 

A: It is. Basically the way he made his turn. 

Q: Is that what you thought at the time? 

A: Oh, definitely at the time, that’s why I continued to follow him. And then once I made the turn

and I observed how far he had gotten from me, the

distance that he had gained, he wasn’t going the

speed limit. I had, you know, no way to tell exactly

how fast, but he wasn’t going the speed limit

because I had to accelerate excessively to try to

catch up with him. 

The magistrate judge sought to clarify the distances (and,

by inference, the speeds) involved, asking if Officer Boehmer

could see Willis after he turned onto Charleston from Las

Vegas Boulevard, and then again after he turned onto Third

from Charleston:

Q: So you saw him make a right turn on Third

[from Charleston]? 

UNITED STATES v. WILLIS 16567
A: Yes I did. 

Q: And then when you reached Third and made a

right turn, do you recall where he was when you

were able to see down Third Street? 

A: Yes. I believe he was already past Coolidge

because I was saying — I remember saying to

myself, man, this guy is driving so fa[s]t, you know

it was almost to the point I was going to call out the

vehicle pursuit, but I had no other description

besides the white vehicle. 

The distance between Charleston and Third is a block and

a half. Coolidge comes into Third at an angle, joining Third

half a block up from Charleston. The magistrate judge continued:

Q: And then when you turned north on Third

Street, he was already halfway between Coolidge

and Hoover? 

A: Yes. 

Q: He must have been slowing down as he

approached Hoover, correct? 

A: He did. 

Q: And he then made a right turn on Hoover? 

A: Yes. 

Q: Just around the corner practically — 

A: Yes. 

Q: — and parked — 

16568 UNITED STATES v. WILLIS
A: Yes. 

Q: On the south side of the street? 

A: Yes, Your Honor. 

When Willis parked his car, he was less than two blocks from

where he had been when Officer Boehmer had first spotted

him. He was now back on Hoover, pointed in the same direction he had been driving when he made his “rapid turn” from

Hoover onto Las Vegas Boulevard. 

Officer Boehmer never testified as to the speed limit on the

streets on which Willis traveled, or as to the exact speed Willis was traveling. He also made no attempt to explain how

Willis had been able to exceed the speed limit when he never

traveled more than two blocks in a straight line. Nor did Officer Boehmer attempt to reconcile his belief that Willis was

trying to evade him with the fact that Willis had essentially

driven in a four-and-a-half to five-block circle, coming back

onto Hoover and then stopping voluntarily. 

3. U-Turn on Hoover

After parking his car on Hoover, Willis got out, “sprinted”

(Officer Boehmer’s word) across the street to a nearby apartment, and banged on the door. He was admitted to the apartment and stayed for a short time. He then came out of the

apartment, got into his car, and made a U-turn on Hoover. He

crossed Third Street and stopped the car at the curb on Hoover in front of what we now know was his own apartment. 

Officer Boehmer testified that Willis’s U-turn on Hoover

was illegal, but he cited no provision of any applicable traffic

law. Nevada’s traffic laws provide that “[a] U-turn may be

made on any road where the turn can be made with safety,

except as prohibited by this section and by the provisions of

N.R.S. 484.309 [driving on a divided highway] and 484.339

UNITED STATES v. WILLIS 16569
[turning on a curve or crest/grade].” Nev. Rev. Stat.

484.337(1) (2002). U-turns may not be performed at stoplights that have signs prohibiting these turns. Id. at

484.337(2). Nor may they be performed in a business district

unless at an intersection. Id. at 484.337(3). Las Vegas’s

municipal traffic code provides, “The driver of any vehicle

shall not turn such vehicle so as to proceed in the opposite

direction upon any street in a business district and shall not

upon any other street so turn a vehicle unless such movement

can be made in safety and without interfering with other traffic.” Las Vegas Mun. Code 11.12.050 (2005). 

Nowhere in his testimony did Officer Boehmer state that

Hoover Avenue at Third Street is in a business district. We

know from Officer Boehmer’s testimony that there were residential apartments along Hoover at the point where Willis

made his U-turn. Further, Officer Boehmer’s testimony indicates that there was no traffic on Hoover when Willis performed the U-turn. Finally, there is nothing in Officer

Boehmer’s testimony to indicate that there was a stoplight or

a sign prohibiting a U-turn, or that Willis’s U-turn was unsafe.

4. Other Evidence

Officer Boehmer testified at the suppression hearing that he

had no recollection of having mentioned any traffic violations

to Willis during the course of the arrest, and that no traffic

citation was ever issued to Willis. Officer Boehmer further

testified that he did not mention Willis’s rapid accelerating

and speeding in either of his two written reports prepared after

the arrest. Officer Boehmer did mention Willis’s U-turn in his

reports, but only as part of the narrative leading up to Willis’s

voluntary stop in front of his own apartment. Officer Boehmer

did not indicate anywhere in his two written reports that Willis’s U-turn was illegal. Indeed, there is nothing in either of

Officer Boehmer’s two reports to indicate that Willis had violated the traffic laws in any manner, or that Officer Boehmer

had stopped Willis for a traffic violation. 

16570 UNITED STATES v. WILLIS
B. Circumstances of the “Traffic Stop”

Officer Boehmer’s testimony makes clear that he suspected

that Willis was engaged in, or had engaged in, criminal activity. He testified that his suspicions were first aroused by Willis’s manner of driving between the time of his initial turn

from, and subsequent return to, Hoover Avenue. His suspicions were further aroused when Willis parked on Hoover,

left his windows rolled down, ran across the street, and

banged on the door of an apartment. At that point, Officer

Boehmer asked that a check be run on the Colorado license

plates of Willis’s car. He also asked for back-up: “Due to the

suspicious situation, the known gang, prostitution and drug

activity in the area, I just, for officer safety, I wanted another

officer there, and the time of night.” While he waited for his

back-up to arrive, Officer Boehmer made a U-turn on Hoover

and drove a little over half a block away to the west. He

parked in an alley that intersected Hoover between Third

Street and Casino Center Boulevard. He testified that he had

an unobstructed view from the alley to the apartment complex

to which Willis had run. 

Officer Boehmer testified that the license plate check

revealed that Willis’s car was listed as a “suspicious vehicle

in an earlier event almost a week earlier.” It also revealed

“that the vehicle has a missing persons [National Crime and

Information Center (“NCIC”)] hit on it.” About a week earlier, the woman who owned the car Willis was driving had

been driving with Willis in Las Vegas. They were stopped by

Las Vegas police because the car had a missing person listing

on the NCIC system. During the stop, Las Vegas police officers learned that the woman was in Las Vegas on her own

volition and wanted no assistance. According to Officer Boehmer, the suspicious vehicle report had been entered into the

local Las Vegas police department system at about the time

of this stop. 

Las Vegas police contacted the woman’s family and the

Escondido, California Police Department (the source of the

UNITED STATES v. WILLIS 16571
missing person listing) to tell them what they had learned.

The Escondido Police Department requested that the Las

Vegas Police Department let them know where the woman

was so that she could be removed from the missing persons

list. The record does not indicate when or if the Las Vegas

Police Department responded to this request. However, none

of this was known to Officer Boehmer as he watched from the

alley. The only thing he knew was that the car was listed as

a “suspicious vehicle” on the local Las Vegas system, and

there was an NCIC missing persons “hit” on the car. 

Officer Miller arrived in a separate police car in response

to the back-up request. While Officer Boehmer was describing the situation to Officer Miller, Willis came back out of the

apartment. Willis got into his car, made a U-turn on Hoover,

and drove less than a block. Still on Hoover, Willis pulled

over to the curb of his own accord and parked in front of his

own apartment. Officers Boehmer and Miller immediately

moved to box in Willis’s car. Officer Boehmer made a U-turn,

turned on his overhead lights, and drove up behind Willis’s

car. Officer Miller made a U-turn from the other direction,

turned on his overhead lights, and drove up to the front of

Willis’s car. 

Officer Boehmer testified that Willis opened his car door as

he was in the middle of his U-turn. Then, “as he stepped out

[of his car] I was putting my vehicle into park and I observed

a black male start looking from side to side rapidly.” Boehmer

testified, “I immediately began ordering commands to him to

step to the front of my vehicle, and also to take his hands out

of his pockets because at the time he had his hands in his

jacket pockets. . . . [F]rom my experience again, someone

that, you know, immediately opens up their vehicle and jumps

out and begins looking from side to side frantically is, in my

experience they’ve always taken off running. So before, you

know, he had a chance to, I just started giving commands.” 

Officer Boehmer testified that Willis complied with his

commands. After Willis had walked to the front of the police

16572 UNITED STATES v. WILLIS
car, Officer Boehmer asked him, “[D]o you have anything on

you I should know about?” According to Officer Boehmer,

Willis “said he had a gun.” Officer Boehmer says he “then

asked him to place his hands behind his back and spread his

feet apart[.]” Officer Boehmer testified that Officer Miller

“gained [Willis’s] consent” to look in his pockets, where he

found a loaded firearm. Officer Boehmer testified that he then

gave Willis a Miranda warning and asked him more questions. He testified that he asked a records clerk to run a criminal history check, and that the check revealed that Willis was

a convicted felon. Officer Boehmer placed Willis under arrest

“[f]or ex-felon in possession of a firearm, carrying a concealed weapon, ex-felon failure to register at that time.” After

arresting Willis, Officer Boehmer transported him to the

Clark County Detention Center. 

II. Discussion

In Whren v. United States, the Supreme Court held that the

police may make an ordinary “traffic stop” whenever they

have sufficient reason to believe that a traffic law has been

violated. It does not matter under Whren that the police might

have some ulterior motive for making the stop, so long as they

have sufficient reason based on suspicion that the traffic laws

have been violated. The Court in Whren spoke of “probable

cause,” 517 U.S. at 819, but we, along with other circuits,

have construed Whren to require only that the police have

“reasonable suspicion” to believe that a traffic law has been

broken. United States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th

Cir. 2000). 

Whren gives the police considerable leeway in making traffic stops, but it does not provide them carte blanche. There are

two independent requirements for a valid traffic stop under

Whren. 

First, “specific, articulable facts” to justify reasonable suspicion must be provided by the police officer. As stated by the

UNITED STATES v. WILLIS 16573
Supreme Court in Terry, “the police officer must be able to

point to specific, articulable facts which, together with rational interferences from those facts, reasonably warrant [the]

intrusion.” Terry, 392 U.S. at 21 (emphasis added). See also

United States v. Michael R., 90 F.3d 340, 346 (9th Cir. 1996)

(police officer making a traffic stop must have “specific,

articulable facts which, taken together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity”

(quoting United States v. Garcia-Comacho, 53 F.3d 244, 246

(9th Cir. 1995)); Lopez-Soto, 205 F.3d at 1104 (same). A

police officer may rely on his training and experience in

drawing inferences from the facts he observes, but those inferences must also “be grounded in objective facts and be capable of rational explanation.” Michael R., 90 F.3d at 346. 

Second, the stop must be an ordinary traffic stop. The

Supreme Court was careful in Whren to specify that its rationale, and its holding, was limited to what it called the “run-ofthe-mine case.” Whren, 517 U.S. at 819. That is, if a detention

of a vehicle by police is other than a “run-of-the-mine” traffic

stop, Whren does not apply 

If either of these two requirements is not satisfied, a detention is not a valid traffic stop under Whren. I consider them

in sequence. 

A. “Specific, Articulable Facts”

A defendant has the ultimate burden of proof on a Fourth

Amendment motion to suppress. United States v. Cayman,

404 F.3d 1196, 1999 (9th Cir. 2005). But when a traffic stop

based on Whren is at issue, the police officer has the initial

burden of production. That is, Officer Boehmer had the burden of providing “specific, articulable facts” to justify a “reasonable suspicion” to believe that Willis had violated the

traffic laws. Terry, 392 U.S. at 21; Michael R., 90 F.3d at 346;

Lopez-Soto, 205 F.3d at 1104. In the absence of such “spe16574 UNITED STATES v. WILLIS
cific, articulable facts” provided by the police officer, the

defendant has no obligation to refute the police officer’s testimony, for he has failed to satisfy his initial burden of production. Unless the police officer provides “specific, articulable

facts,” a traffic stop under Whren is invalid. 

Officer Boehmer failed to carry his initial burden of production of providing “specific, articulable facts” to justify a

reasonable suspicion that Willis violated the traffic laws.

Even when invited to do so, Officer Boehmer failed to point

to a single provision of Nevada or Las Vegas traffic laws that

Willis might have violated. Officer Boehmer admitted forthrightly in his testimony, “I don’t really write too many tickets.” Rather, “I just mostly do criminal investigations.” 

Officer Boehmer first asserted that Willis’s “rapid turn”

onto Las Vegas Boulevard was a traffic violation, but he was

unable, even when asked, to specify any law that had been

violated. Officer Boehmer next asserted that Willis had broken the speed limit, but Officer Boehmer did not specify the

applicable speed limit, and was unable to say, even when

asked, exactly how fast Willis was going. It is apparent from

Officer Boehmer’s narrative that Willis’s speed would have

been limited by the route he took, for Willis never had more

than two blocks of straight driving before turning onto

another street. Finally, Officer Boehmer asserted that Willis

had made an illegal U-turn on Hoover Avenue. But it is

apparent from Officer Boehmer’s testimony that the U-turn

was accomplished on a stretch of Hoover that was bordered

by residential apartments. Officer Boehmer failed to specify

any traffic law forbidding a U-turn in a residential area. He

also failed to specify that Willis’s U-turn was performed in an

unsafe manner, or in any other manner that would have violated the traffic laws. 

B. “Traffic Stop”

The totality of circumstances surrounding Officer Boehmer

and Miller’s arrest of Willis make it clear that they did not

UNITED STATES v. WILLIS 16575
perform a “run-of-the-mine” traffic stop within the meaning

of Whren. I recognize that there are circumstances in which

a valid traffic stop under Whren can take place after a car has

already been stopped. For example, if a police vehicle openly

pursues a fleeing car and the driver belatedly decides to pull

over and stop to wait for the police vehicle to catch up, no one

would dispute that the car had been subjected to a traffic stop

within the meaning of Whren. But this is hardly such a case.

Officer Boehmer made clear in his testimony that he suspected Willis of criminal activity. After Willis made his first

stop on Hoover, Officer Boehmer called for backup and drove

to a secluded alley where he could watch and wait for his

back-up. After Officer Miller arrived, Officer Boehmer told

him what was happening. Willis then returned to his car,

made a U-turn on Hoover, and drove less than a block to park

in front of his own apartment. 

After Willis had already parked his car on his own accord,

Officers Boehmer and Miller “swooped in,” boxing in the

already stopped car from the front and rear. Officers Boehmer

and Miller then behaved exactly as one would expect welltrained officers to behave when stopping someone suspected

of criminal activity. To dissuade Willis from running away,

Officer Boehmer “immediately began ordering commands to

him to step to the front of my vehicle, and also to take his

hands out of his jacket pockets[.]” To ensure the officers’

safety, Officer Boehmer asked Willis if he had “anything on

[him] I should know about.” When Willis replied that he had

a gun, Officer Boehmer arrested him and took him to the

detention center. 

After stopping Willis, Officer Boehmer never mentioned

any traffic violation or issued any traffic citation. Nor did

Officer Boehmer ever mention any traffic violation in his two

written reports prepared after Willis’s arrest. The first time a

purported traffic violation was mentioned was when Officer

16576 UNITED STATES v. WILLIS
Boehmer was questioned by government counsel at the suppression hearing. 

C. Summary

The majority’s rationale under Whren thus fails on both

counts, either one of which is fatal. Officer Boehmer did not

provide “specific, articulable facts” that justified reasonable

suspicion that Willis had violated any traffic law. Further,

Officers Boehmer and Miller’s detention and arrest of Willis

was not a “run-of-the-mine” traffic stop within the meaning

of Whren. 

III. Failure to Remand

Even if I agreed with the majority’s legal analysis, I could

not agree with its disposition. Rather than remand for factfinding, the majority simply affirms the denial of Willis’s suppression motion. 

Because the district court concluded — as I do — that Officers Boehmer and Miller did not perform a traffic stop within

the meaning of Whren, it did not determine whether Officer

Boehmer’s testimony about Willis’s driving was credible. The

magistrate judge noted that Willis had contended that Officer

Boehmer’s testimony was “simply not credible.” But the magistrate judge wrote that he did not “need [to] assess the credibility of the officer’s testimony about Willis’s driving”

because there had been no traffic stop under Whren. 

Unlike the district court, the majority concludes that there

was a traffic stop under Whren. It also concludes that the traffic stop was justified by a reasonable suspicion that Willis had

committed a traffic violation. In order to reach the second

conclusion, it treats Officer Boehmer’s testimony about Willis’s driving as credible. It does so despite Willis’s explicit

challenge to its credibility, and despite the magistrate judge’s

UNITED STATES v. WILLIS 16577
explicit refusal to “assess [its] credibility.” Under the circumstances, I would remand to the district court for factfinding.

Conclusion

The majority distorts the law to hold that Officers Boehmer

and Miller performed a permissible traffic stop under Whren.

The majority recognizes the weakness of the other two rationales offered by the government — a reasonable suspicion of

criminal activity under Terry and the community caretaking

function under Cady v. Dombrowski. But the majority’s alternative rationale is even worse. If, on these assumed facts,

Officer Boehmer provided “specific, articulable facts” to support a reasonable suspicion that Willis had broken the traffic

laws, “reasonable suspicion” has lost much of its meaning.

And if, on these facts, Officers Boehmer and Miller performed a “run-of-the-mine” “traffic stop,” those terms, too,

have lost their meaning.

16578 UNITED STATES v. WILLIS