In United States v. Bontemps, --- F.3d ---, No. 19-10196 (9th Cir. 2020), a divided panel affirmed the district court's denial of the defendant's suppression motion.
The case arose out of a Terry stop based on officers observation of a large bulge in the defendant's sweatshirt consistent with a gun.
According to the majority: "Precedent suggests—and common sense confirms— what we now hold here: a bulge that appears to be a concealed firearm can form the basis for a Terry stop in a jurisdiction where carrying a concealed weapon is presumptively unlawful. This holding accords not only with our past cases discussed above but also with the basic mode of analysis under Terry, in which courts look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing."
The majority distinguished drug bulges from gun bulges: "Cases involving 'drug bulges,' however, present somewhat different considerations than 'gun bulges' under the fact-based Terry inquiry. While guns are made of rigid materials (such as metal or hard plastics) and possess a relatively distinctive shape, drugs or packages of drugs come in different shapes and sizes, some quite small, soft, and nondescript."
"Our holding is []that a bulge suggestive of a firearm can be sufficient to create reasonable suspicion, and that in this case there was ample evidence from which to conclude that Bontemps’s 'obvious' bulge was likely a concealed firearm."
The dissent, however, made the point that "seeing a non-descript bulge without more should not allow police officers to stop and frisk citizens. And the majority’s holding gives license to stop and frisk any citizen based upon nothing more than officer testimony that the officer had seen a bulge."
