USA V. MARC WILLY, No. 21-30006 (9th Cir. 2022)

Court Description: Criminal Law. The panel affirmed the district court’s order granting Marc Anthony Willy’s motion to suppress evidence and statements obtained after his arrest, in a case that required the panel to determine whether there was probable cause to arrest Willy for displaying a weapon in a manner that “warrant[ed] alarm for the safety of other persons.” Wash. Rev. Code § 9.41.270(1). Willy was arrested after two people separately reported that a man in a truck had displayed a firearm while asking them questions about an alleged kidnapping in the area. After his arrest, a search of Willy’s vehicle and person recovered illegal firearms and a modified CO2 cartridge. He was charged with making and possessing a destructive device in violation of the National Firearms Act. Explaining important context for Willy’s actions, the panel noted that Washington is an open carry state (i.e., it is presumptively legal to carry a firearm openly) in which it is a misdemeanor to carry a concealed pistol without a license, but also a “shall issue state” meaning that local law enforcement must issue a concealed weapons license if the applicant meets certain qualifications. The panel wrote that the bare fact that Willy displayed a weapon would not be sufficient to stop Willy, because there is no evidence that Willy was carrying a concealed weapon. Noting that UNITED STATES V. WILLY 3 Washington courts have narrowed terms in § 9.41.270(1) to preserve the constitutionality of the statute, the panel observed that what emerges is a workable standard: The act must warrant alarm in a reasonable person for the safety of others. A sheriff’s deputy’s suspicion that Willy had violated § 9.41.270 arose not from his own observations but from the accounts of the two reporting parties. The panel wrote that it was reasonable for an officer in the sheriff’s deputy’s position to rely on the information, but concluded that the deputy did not, consistent with Washington law and the Fourth Amendment, have probable cause to arrest Willy without further inquiry for three reasons. First, it was not clearly erroneous for the district court to conclude that neither reporting party indicated to the deputy that Willy displayed his firearm in a threatening manner. Second, § 9.41.270(1) requires more than the mere display of a firearm, and at the time the deputy located Willy, he did not have sufficient information to reasonably believe Willy had displayed his gun in a manner that warrants alarm. The panel wrote that although the reports indicated that Willy displayed the firearm rather than just carrying it, this distinction does not, in an open-carry state, create enough of a possibility of criminal activity that Willy was subject to immediate arrest without further investigation. Finally, the district court accurately stated that § 9.41.270(1) both incorporates a reasonable person standard and does not require that a person’s actions actively cause alarm. As the government did not challenge application of the “fruit of the poisonous tree” doctrine, the panel affirmed the district court’s application of the exclusionary rule to 4 UNITED STATES V. WILLY suppress Willy’s statements, the firearms, and the CO2 device. Dissenting, Judge Christen wrote that the deputy without question had probable cause to suspect that Willy violated the second clause of § 9.41.270(1) because the reliability of the callers’ reports was verified when the details they provided checked out; and it was the deputy’s perilous duty to arrest Willy, a man he had good reason to believe to be armed and mentally compromised, for displaying a firearm “in a manner, under circumstances, and at a time and place that . . . warrants alarm for the safety of other persons.”