# United States v. Karim Hussein Al Nasser, AKA Karim Hussein Al-Nasser, Karim H. Alnasser, Kram Nseelt, Karim H. Alaassar > Court of Appeals for the Ninth Circuit · March 20, 2007 · 479 F.3d 1166 URL: https://www.frixlaw.com/law-library/cases/9499525 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Karim HUSSEIN AL NASSER, AKA Karim Hussein Al-Nasser, Karim H. Al-Nasser, Kram Nseelt, Karim H. Alaassar, Defendant-Appellant - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** March 20, 2007 - **Citations:** 479 F.3d 1166; 2007 U.S. App. LEXIS 6405; 2007 WL 817634 - **Precedential status:** Published - **Opinion:** Dissent by Ferguson - **Judges:** Ferguson, Trott, Kleinfeld - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499525 ## How later opinions describe it (automated extraction) - holding downward adjustment for committing alien transportation crime other than for profit was not appropriate as long as defendant “was part of a scheme to transport the aliens for money, whether he personally received any of the money or not” ## Opinion text FERGUSON, Circuit Judge, dissenting: I agree with the majority concerning the general rule that a “person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained,” maj. op. at 1170 (quoting United States v. Mendenhall, 446 U.S. 544, 553 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980)); see also Terry v. Ohio, 392 U.S. 1 , 19 n. 16, 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), but I disagree with its decision that A1 Nasser’s movement was not so restrained. “[Tjaking into account all of the circumstances surrounding the encounter” in this case, “the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Florida v. Bostick, 501 U.S. 429, 437 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569 , 108 S.Ct. 1975 , 100 L.Ed.2d 565 (1988)) (internal punctuation omitted). The majority’s conclusion to the contrary is illogical and contravenes both Supreme Court and Ninth Circuit precedent. I. On the night of October 4, 2003, uniformed Border Patrol Agents Cortright and Spivey were patrolling a stretch of Federal Route 15 (“Route 15”), a two-lane highway that runs through Arizona and the Tohono O’odham Nation. That evening, Agents Cortright and Spivey, along with Police Officer Lopez, pulled over two vehicles on suspicion of transporting undocumented immigrants. While questioning and arresting the occupants, the officers blocked traffic on the northbound lane of Route 15. Driving north on this stretch of highway, Karim Hussein A1 Nasser (“Al Nasser”) drove up to the arrest scene. Three marked police cars were in the road, at least two with activated flashing lights. The two stopped civilian vehicles were also detained and blocking traffic, and their occupants were being arrested. Uniformed Border Patrol Agent Cortright *1173 stood in the northbound lane, facing Al Nasser’s oncoming vehicle. Border Patrol Agent Cortright shone his “stinger” flashlight into the front of Al Nasser’s car, allegedly to alert Al Nasser to the agent’s presence. Al Nasser slowed and then moved to the southbound lane in order to pass. As Al Nasser began to drive by at a slow speed, the uniformed agent followed the car with his stinger, shining it directly into the passenger window of Al Nasser’s vehicle as it passed and continued forward. In Agent Cortright’s own words, he shone the beam of the stinger “before, during, and after ... the vehicle as it passed.” 1 Al Nasser then came to a complete stop in the middle of the two-lane highway, approximately fifteen feet past the Border Patrol agent. Agents Cortright and Spi-vey ran to the car, and Agent Spivey yanked the keys out of the ignition. The officers then proceeded to question and arrest Al Nasser and all other occupants of his vehicle. II. While a voluntary exchange between the police and a member of the public will not trigger the protections of the Fourth Amendment, an officer may not temporarily detain an individual for investigative purposes without “reasonable suspicion based on articulable facts.” United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir.1987). Further, as the Supreme Court explained in Mendenhall, 446 U.S. at 556-57 , 100 S.Ct. 1870 , “stopping or diverting an automobile in transit, with the attendant opportunity for a visual inspection of the areas of the passenger compartment not otherwise observable, is materially more intrusive than a question put to a passing pedestrian.” The Court specifically recognized “the fact that the former amounts to a seizure.” Id. at 557 , 100 S.Ct. 1870 . In Kerr , the Ninth Circuit confronted “the unusual problem of characterizing an automobile stop as either a voluntary encounter or an investigative stop.” Id. at 1386 . As we explained in that case, whether an auto stop has occurred is generally undisputed. Id. “The vast majority of automobile stops are initiated by police officers using flashing lights or a siren and are clearly fourth amendment seizures.” Id. In Kerr , no lights were used, but the police officer drove into a one-lane driveway, thereby blocking the path of the defendant, who had been driving out. Id. at 1385 . We ruled that such police conduct constituted an investigative stop, because the police officer’s “authority and conduct provided Kerr with no reasonable alternative except an encounter with the police.” Id. at 1387 . Al Nasser, too, adopted the only reasonable course of action, given that police vehicles with flashing lights blocked the road and, when Al Nasser attempted to circumnavigate the scene, an officer beamed his flashlight directly into the passenger compartment of Al Nasser’s car. Just as in Kerr , the police “conduct [] precipitated the confrontation” and Al Nasser “could reasonably [have] con-elude[d]” that the officers’ actions were “directed at intercepting him.” Id. at 1387 . It was precisely on the basis of such circumstances that we ruled in Kerr that an investigative stop had occurred. Id. at 1386-87 . 2 *1174 Similarly, we previously held that a stop occurred where a uniformed officer driving a marked police car approached a vehicle and the defendant’s “decision to stop was sufficiently influenced by the official appearance and conduct of the [law enforcement] agents.” United States v. Torres-Urena, 513 F.2d 540 , 541 n. 1 (9th Cir.1975). In Torres-Urena , the officer testified, “he stopped for us when he saw the uniforms.” Id. Likewise, A1 Nasser stopped for Agent Cortright when the uniformed patrol agent directed his flashlight into A1 Nasser’s moving car. The Supreme Court has repeatedly identified the “crucial test” for whether an investigatory stop has occurred as whether a reasonable person in the defendant’s position “would [have felt] at liberty to ignore the police presence and go about his business.” Bostick, 501 U.S. at 437 , 111 S.Ct. 2382 (quotation and internal punctuation omitted). When A1 Nasser drove up in the darkness, he saw police lights flashing, three marked police cars, two detained civilian vehicles, and a uniformed officer standing in his lane. He could have reasonably believed that all drivers were required to pull over for an administrative checkpoint of some kind. Moreover, when he attempted to continue past this roadblock, Agent Cortright continued to shine his stinger directly into the passenger compartment of A1 Nasser’s ear. It is completely reasonable for a driver to interpret this gesture as an attempt to get his attention and initiate an investigatory stop. An auto stop is different from a pedestrian stop, partly because of the additional intrusion noted in Mendenhall, 446 U.S. at 556-57 , 100 S.Ct. 1870 , but also because of the difference in the channels of communication. Given that the uniformed officer in this case was on foot and not inside a police car, the use of his flashlight was the most effective, if not the only, means of communicating his authority; A1 Nasser reasonably recognized that fact. A driver must read and respond to police signals more ambiguous than those received by a pedestrian, who is typically asked questions by an officer within normal hearing range. Given the additional dangers inherent in driving while managing distractions from the road, a driver can easily be coerced to stop when the police are already blocking the only available lane of traffic. “[T]aking into account all of the circumstances surrounding [A1 Nasser’s] encounter” with uniformed law enforcement officials on Route 15, “the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Bostick, 501 U.S. at 437 , 111 S.Ct. 2382 (quotation and internal punctuation omitted). III. None of the cases cited by the majority support its position. In United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.1997) (quoting Bostick, 501 U.S. at 437 , 111 S.Ct. 2382 ) (internal punctuation omitted), the Ninth Circuit reiterated the rule that a “police officer has restrained the liberty of a citizen if, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Chan-Jimenez held that the defendant was seized within the meaning of the Fourth Amendment when the officer obtained and failed to return the defendant’s license and registration. Id. The initial stop of the defendant’s vehicle did not constitute an investigatory stop only be *1175 cause the defendant had chosen to pull over to examine a mechanical problem with his vehicle. Id. When the officer approached on foot, the car was already stopped at the side of the road, and the hood of the truck was propped open. Id. Similarly, in United States v. Kim, 25 F.3d 1426, 1430 (9th Cir.1994), the police officer approached a car already parked in a parking lot. The officer was not in uniform, and he never activated the flashing lights on top of his car, nor did he utilize a flashlight. Id. at 1430 n. 1. Also, in United States v. Judge, 501 F.2d 1348, 1349 (9th Cir.1974), decided just one year before Torres-Urena , the police officer approached an individual exiting a parked vehicle that was already stationary in a parking lot. None of these cases concerned the question of whether the stop of a moving vehicle was investigatory or voluntary. In contrast to the defendants in Chan-Jimenez, Kim, and Judge , all of whom were approached after they had brought their cars to complete stops, parked them in appropriate and safe locations, and turned off their ignitions, 3 Al Nasser’s vehicle was in motion, and he was actively driving along a highway when Border Patrol Agent Cortright signaled with his flashlight, and Al Nasser then responded by halting in the middle of the road. Al Nasser halted directly in the middle of the highway, several paces past Agent Cort-right and the other cars. Contrary to the assertion of the majority, this cannot logically be interpreted as a move a driver would make voluntarily, simply to “assure himself that it was safe to go on instead of speeding past all the stopped vehicles.” Maj. op. at 1168. IV. Because the majority’s decision contradicts both logic and clear precedent, I respectfully dissent. In my view, Al Nasser’s conviction and sentence should be vacated, and his case should be remanded for the lower court to determine whether the officers had reasonable suspicion based on articulable facts at the time they stopped his vehicle. I therefore would not reach the sentencing issues addressed in Part II of the majority opinion. . There is some dispute as to whether the officers made verbal orders or other additional gestures. Officer Lopez testified at the suppression hearing that Al Nasser was ordered to "stop,” but the court below did not credit the officer’s testimony. I harbor serious doubts about the accuracy of the factual findings of the court below, but for purposes of this dissent I accept those findings as true. My position remains the same in either case. . The majority readily acknowledges the eminent reasonableness of Al Nasser’s conduct *1174 yet finds no stop occurred. See maj. op. at ll 67-68, 1169. . The engine was running in Chan-Jimenez, 125 F.3d at 1326 , only because necessary for the owner to investigate the vehicle's mechanical problems while he looked under the car's hood. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499525. Public record. Not legal advice.