NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

CHRISTOPHER M. GATES, 

Defendant-Appellant.

No. 17-30028 

D.C. No. 

2:15-cr-00253-JCC-1 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Argued and Submitted November 6, 2018

Seattle, Washington

Before: McKEOWN and FRIEDLAND, Circuit Judges, and GAITAN,** District 

Judge.

Defendant Christopher Gates (“Gates”) challenges his convictions under 18 

U.S.C. § 922(g)(1) for two counts of being a felon in possession of a firearm and 

two counts of misdemeanor possession of a controlled substance in violation of 21 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Fernando J. Gaitan, Jr., United States District Judge 

for the Western District of Missouri, sitting by designation.

FILED

DEC 5 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

U.S.C. § 844(a). Gates’s convictions arise out of two separate police encounters: 

the first in the parking lot of a strip club long after the club had closed for the 

night, and the second when Gates was arrested following a traffic stop and his 

vehicle impounded. We affirm in part and reverse in part, holding that the district 

court properly denied Gates’s motion to suppress a firearm seized in the first 

incident but erred in denying his motion to suppress a firearm and drugs seized in 

connection with the second incident.

1. Gates raises several challenges to the district court’s denial of his motion 

to suppress the firearm seized from his vehicle after the incident in the strip club 

parking lot. All of his arguments are meritless.

First, the police officers had reasonable suspicion for the initial investigatory 

detention that led to the seizure of the gun. Police officers may approach 

individuals to ask questions—even when they “have no basis for suspecting a 

particular individual”—without a Fourth Amendment seizure occurring. Florida v. 

Bostick, 501 U.S. 429, 435 (1991). Here, the police were permitted to initiate a 

consensual encounter with Gates in the parking lot, such as approaching his vehicle 

to ask him questions about why he was still there after the club had closed. 

Having a valid reason to approach the car, one of the officers immediately 

saw the firearm in plain view on the seat next to Gates. In combination with the 

surrounding circumstances, this gave the officers reasonable suspicion that Gates 
3 

might have been planning to rob the club or its patrons, and thus to conduct an 

investigatory stop. Terry v. Ohio, 392 U.S. 1, 30 (1968). 

Police may also conduct “a reasonable search for weapons for the protection 

of the police officer, where he has reason to believe that he is dealing with an 

armed and dangerous individual.” Id. at 27. The officers already had reasonable 

suspicion that Gates was planning to rob the strip club or its employees, and, when 

Gates woke up and began moving around inside the vehicle, the officers developed 

a reasonable fear for their safety, providing independent justification for an 

investigatory detention and frisk for weapons.

Second, the fact that Gates was handcuffed immediately after his removal 

from the car, does not make the encounter an arrest rather than a Terry stop. 

Washington v. Lambert, 98 F.3d 1181, 1186 (9th Cir. 1996); see also United States 

v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983) (holding that a frisk was still part of 

an investigatory stop even though the suspect was lying down and handcuffed). 

Holding a suspect at gunpoint similarly does not necessarily escalate an 

investigatory stop to an arrest. See, e.g., United States v. Alvarez, 899 F.2d 833, 

838–39 (9th Cir. 1990) (defendant was not arrested even though officers

approached his vehicle with guns drawn and ordered him to step out of his car). 

The district court therefore did not err in concluding that Gates was merely 

detained and not arrested. And, having detained Gates, the officers were justified 
4 

in conducting a protective frisk of the passenger compartment of the car to secure 

the gun in the front seat. Michigan v. Long, 463 U.S. 1032, 1049 (1983).

Third, we decline to consider Gates’s argument that the circumstances made 

his production of his driver’s license involuntary because the issue was not 

properly raised in the district court. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 

2018) (“The usual rule is that arguments raised for the first time on appeal . . . are 

deemed forfeited.”).

1

 And, once the police officers identified Gates as a felon, they 

had probable cause to arrest him for possession of a firearm in violation of 18 

U.S.C. § 922(g)(1).

2

 

2. The trial court did err, however, in denying the motion to suppress 

evidence discovered following the traffic stop. As part of the “community 

caretaking function,” law enforcement officers are permitted under the Fourth 

Amendment to impound a vehicle and conduct an inventory search of that vehicle. 

See South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976). But federal law 

requires that, when a police officer decides to impound a vehicle and conduct an 

 

1 Even if we were to review for plain error, neither the testimony about Gates’s 

provision of his identification nor the law surrounding consent in such 

circumstances would support the conclusion that any error here was plain. See 

United States v. Olano, 507 U.S. 725, 734 (1993) (“‘Plain’ is synonymous with 

‘clear,’ or, equivalently, ‘obvious’. . . . under current law”).

2 Because we conclude that the district court’s reasons for denying the motion to 

suppress the firearm seized in the first incident were appropriate, we need not 

reach the Government’s alternative argument that the gun would have inevitably 

been seized in a search incident to arrest. 
5 

inventory search, the officer must comply with state law governing impoundments 

as well. United States v. Wanless, 882 F.2d 1459, 1464 (9th Cir. 1989). 

Washington law imposes two requirements for a vehicle to be impounded: 

first, it must be necessary for “the vehicle [to] be moved because it has been 

abandoned, impedes traffic, or otherwise threatens public safety or if there is a 

threat to the vehicle itself and its contents of vandalism or theft” and, second, “the 

defendant, the defendant’s spouse, or friends are not available to move the 

vehicle.” State v. Tyler, 302 P.3d 165, 170 (Wash. 2013). Police officers need not 

exhaust all possible alternatives, but they must at least consider reasonable 

alternatives, id. at 170, and show that they “attempted, if feasible, to get from the 

driver the name of someone in the vicinity who could move the vehicle; and then 

reasonably concluded from [their] deliberation that impoundment was in order,” 

State v. Hardman, 567 P.2d 238, 241 (Wash. Ct. App. 1977). 

Here, the impoundment and subsequent inventory search of Gates’s car after 

the traffic stop violated Washington law. The officer on the scene did not consider

reasonable alternatives to impoundment by asking whether Gates had friends or 

family who could move the vehicle, rendering his conduct deficient under the 

second prong of the Tyler test. Because the impoundment was improper, the 

subsequent inventory search was invalid as well. Wong Sun v. United States, 371 

U.S. 471, 488 (1963). The firearm and cocaine found in the car should therefore 
6 

have been suppressed.3

AFFIRMED in part and REVERSED in part.

 

3 The Alprazolam pills found in the car should also have been suppressed, but 

Gates conceded at oral argument that his conviction for possession of Alprazolam 

may still stand based on the Alprazolam properly found on his person when he was 

searched incident to his arrest. Because we hold that the evidence found in the car 

after it was impounded must be suppressed, we need not reach Gate’s alternative 

argument that trial counsel was ineffective for failing to challenge other aspects of 

the search of the car.