                 FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 17-10217
                  Plaintiff-Appellee,
                                             D.C. No.
                 v.                       4:16-cr-00855-
                                           RCC-BGM-1
ALFREDO ENOS LANDEROS,
              Defendant-Appellant.          OPINION



       Appeal from the United States District Court
                for the District of Arizona
        Raner C. Collins, District Judge, Presiding

       Argued and Submitted September 12, 2018
               San Francisco, California

                 Filed January 11, 2019

  Before: Marsha S. Berzon, Johnnie B. Rawlinson, and
           Paul J. Watford, Circuit Judges.

                Opinion by Judge Berzon
2                UNITED STATES V. LANDEROS

                          SUMMARY *


                          Criminal Law

    Reversing the district court’s denial of a motion to
suppress evidence obtained as a result of a traffic stop, the
panel held that law enforcement officers may not extend a
lawfully initiated vehicle stop because a passenger refuses to
identify himself, absent reasonable suspicion that the
individual has committed a criminal offense.

    The panel recognized that Rodriguez v. United States,
135 S. Ct. 1609 (2015) (holding that an officer may conduct
certain unrelated checks during an otherwise lawful traffic
stop but may not do so in a way that prolongs the stop, absent
the reasonable suspicion ordinarily demanded to justify
detaining an individual), at least partially abrogated United
States v. Turvin, 517 F.3d 1097 (9th Cir. 2008) (holding that
an officer did not transform a lawful traffic stop into an
unlawful one when, without reasonable suspicion, he took a
break from writing a traffic citation to ask the driver about a
methamphetamine laboratory and obtain the driver’s consent
to search the his truck). The panel held that because the
district court’s approval of the duration of the stop in this
case was based on Turvin and disregarded Rodriguez, it was
premised on legal error.

    Observing that the record does not demonstrate that the
officer had a reasonable suspicion that the defendant was out
past his curfew or drinking underage, the panel held that any

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                UNITED STATES V. LANDEROS                      3

extension of the traffic stop to investigate those matters was
an unlawful seizure.

    Based on the plain text of Ariz. Rev. Stat. Ann. § 13-
2412(A), the panel rejected the government’s contention that
the defendant’s refusal to identify himself provided
reasonable suspicion of the additional offenses of failure to
provide identification and failure to comply with law
enforcement orders.

    Because the police could not lawfully order the
defendant to identify himself, the panel explained that the
defendant’s repeated refusal to do so did not constitute a
failure to comply with an officer’s lawful order under Ariz.
Rev. Stat. Ann. § 28-622(A). The panel concluded that there
was therefore no justification for the extension of the
detention to allow the officers to press the defendant further
for his identity.

    The panel held that the bullets the defendant was
convicted of possessing, only because he was ordered from
the car as part of the unlawfully extended seizure and
subsequently consented to a search of his pockets, cannot be
introduced at trial. The panel wrote that because the stop
was no longer lawful by the time the officers ordered the
defendant to leave the car, the validity or not of the exit order
does not matter.

    The panel addressed in a concurrently filed
memorandum disposition the defendant’s challenge to the
district court’s denial of his motion to dismiss the
indictment.
4                 UNITED STATES V. LANDEROS

                             COUNSEL

Lee Tucker (argued), Assistant Federal Defender; Jon M.
Sands, Federal Defender; Federal Public Defender’s Office,
Tucson, Arizona; for Defendant-Appellant.

Charisse Arce (argued) and Angela W. Woolridge, Assistant
United States Attorneys; Elizabeth A. Strange, First
Assistant United States Attorney; Robert L. Miskell,
Appellate Chief; United States Attorney’s Office, Tucson,
Arizona; for Plaintiff-Appellee.


                              OPINION

BERZON, Circuit Judge:

    Our question is whether law enforcement officers may
extend a lawfully initiated vehicle stop because a passenger
refuses to identify himself, absent reasonable suspicion that
the individual has committed a criminal offense. We
conclude that they may not do so. As a result, we reverse. 1

                                    I.

    Early in the morning of February 9, 2016, police officer
Clinton Baker pulled over a car driving 11 miles over the
speed limit. The stop occurred on a road near the Pascua
Yaqui Indian reservation. Alfredo Landeros sat in the front
passenger seat next to the driver. Two young women were in


    1
      Appellant also challenges the district court’s denial of his motion
to dismiss the indictment based on alleged police abuses after his arrest.
We address that challenge in a concurrently filed memorandum
disposition.
                 UNITED STATES V. LANDEROS                        5

the back seat. The driver apologized to Officer Baker for
speeding and provided identification.

    Officer Baker wrote in his incident report and testified
that he smelled alcohol in the car. The two women in the
backseat appeared to him to be minors, and therefore subject
to both the underage drinking laws and the 10:00 p.m.
Pascua Yaqui curfew. 2 According to the two women’s
testimony, Officer Baker requested their identification and
explained that he was asking because they looked younger
than 18 years old “and it was past a curfew.” The two
women—who were 21 and 19 years old—complied.

    As he stated at the suppression hearing, Officer Baker
did not believe that Landeros was underage, and he was not.
Nonetheless, Officer Baker, in his own words,
“commanded” Landeros to provide identification. Later,
Officer Baker explained it was “standard for [law
enforcement] to identify everybody in the vehicle.”
Landeros refused to identify himself, and informed Officer
Baker—correctly, as we shall explain—that he was not
required to do so. Officer Baker then repeated his “demand[]
to see [Landeros’s] ID.” Landeros again refused. As a result,
Officer Baker called for back-up, prolonging the stop.
Officer Frank Romero then arrived, and he too asked for
Landeros’s identification. The two officers also repeatedly
“commanded” Landeros to exit the car because he was not
being “compliant.”

   Landeros eventually did leave the car. At least several
minutes passed between Officer Baker’s initial request for


    2
      Officer Baker is a police officer with the Pascua Yaqui Police
Department who has authority to enforce both the Pascua Yaqui tribal
code and Arizona state laws.
6                 UNITED STATES V. LANDEROS

Landeros’s identification and his exit from the car, although
the record does not reflect the exact length of time.

    Officer Baker testified that, as Landeros exited the car,
he saw for the first time pocketknives, a machete, and two
open beer bottles on the floorboards by the front passenger
seat. Arizona prohibits open containers of alcohol in cars on
public highways, Ariz. Rev. Stat. Ann. § 4-251. Officer
Baker then placed Landeros under arrest. Consistent with
Officer Baker’s testimony, the government represented in its
district court briefing that Landeros was arrested both for
possessing an open container 3 and for “failure to provide his
true full name and refusal to comply with directions of police
officers.” See Ariz. Rev. Stat. Ann. § 13-2412(A) (“It is
unlawful for a person, after being advised that the person’s
refusal to answer is unlawful, to fail or refuse to state the
person’s true full name on request of a peace officer who has
lawfully detained the person based on reasonable suspicion
that the person has committed, is committing or is about to
commit a crime.”); id. § 28-622(A) (“A person shall not
willfully fail or refuse to comply with any lawful order or
direction of a police officer invested by law with authority
to direct, control or regulate traffic.”).

    The officers handcuffed Landeros as soon as he exited
the car. Officer Romero asked Landeros if he had any
weapons; Landeros confirmed that he had a knife in a
pocket. Officer Romero requested consent to search
Landeros’s pockets, and Landeros agreed. During that



    3
       We do not reach the question whether, if the seizure were otherwise
lawful, law enforcement could have lawfully detained and arrested
Landeros based on the open container of alcohol seen where he had been
sitting. He was never charged with that offense.
                UNITED STATES V. LANDEROS                     7

search, Officer Romero found a smoking pipe and six bullets
in Landeros’s pockets.

    Two and a half months later, Landeros was indicted for
possession of ammunition by a convicted felon, 18 U.S.C.
§§ 922(g)(1), 924(a)(2). He moved to suppress the evidence
based on the circumstances of the stop, and also to dismiss
the indictment based on alleged abuse by the police officers
after the search. The magistrate judge recommended the
district court deny both motions, and it did so in a single
sentence order. Landeros then entered into a plea agreement
that preserved his right to appeal the denials of the two
motions. The district court accepted the agreement and
sentenced Landeros to 405 days in prison and three years of
supervised release.

                              II.

    This case implicates two doctrines, one concerning the
circumstances under which law enforcement can prolong a
stop, and the other governing when law enforcement can
require a person to identify himself.

                              A.

    Rodriguez v. United States held that “[a]n officer . . . may
conduct certain unrelated checks during an otherwise lawful
traffic stop. But . . . he may not do so in a way that prolongs
the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual.” 135 S. Ct.
1609, 1615 (2015). In that case, a police officer stopped
Rodriguez for a minor traffic violation. Id. at 1612. The
officer collected Rodriguez’s license, registration, and proof
of insurance, ran a records check on both Rodriguez and a
passenger, and questioned the passenger about “where [they]
were coming from and where they were going.” Id. at 1613.
8              UNITED STATES V. LANDEROS

He then returned to the vehicle “to issue [a] written warning”
to Rodriguez for the traffic violation. Id.

    Although the reasons for the traffic stop were, at this
point, “out of the way,” the officer continued the stop, asking
Rodriguez for permission to walk a dog around the vehicle.
Id. When Rodriguez refused, the officer ordered Rodriguez
out of the car and called for back-up. Id. Several minutes
later, after a deputy sheriff arrived, the officer conducted a
dog sniff test, which resulted in the discovery of
methamphetamines within the car. Id.

    Based on the fruits of that search, Rodriguez was
indicted for possession with intent to distribute. Id. He
moved to suppress the evidence on the ground that there was
no reasonable suspicion of any offense other than the traffic
violation, so the stop was unlawfully prolonged by the dog
sniff. Id. The district court agreed with Rodriguez that the
officer lacked reasonable suspicion to extend the stop after
the written warning, but determined that the extension was
nonetheless permissible because of its brevity. Id. at 1613–
14. The Eighth Circuit affirmed. See United States v.
Rodriguez, 741 F.3d 905, 907–08 (8th Cir. 2014), vacated
and remanded, 135 S. Ct. 1609.

    The Supreme Court vacated the judgment on the basis
that law enforcement may not extend a traffic stop with tasks
unrelated to the traffic mission, absent independent
reasonable suspicion. Rodriguez, 135 S. Ct. at 1616–17. In
reaching this conclusion, the Court made clear that it would
not have mattered if the police officer conducted the dog
sniff test before, rather than after, he issued the warning.
What mattered was the added time, not at what point, in the
chronology of the stop, that time was added. Id.
               UNITED STATES V. LANDEROS                     9

    This court so emphasized in United States v. Evans,
published a month after Rodriguez. 786 F.3d 779, 786 (9th
Cir. 2015). There, we held that law enforcement
impermissibly extended a traffic stop by running an ex-felon
registration check unrelated to traffic safety and unsupported
by separate reasonable suspicion. Id. “That the ex-felon
registration check occurred before . . . the officer issued a
ticket [stemming from the initial traffic violation] is
immaterial,” we explained. Id. (brackets, citation, and
internal quotation marks omitted). “[R]ather, the critical
question is whether the check prolongs—i.e., adds time to—
the stop.” Id. (brackets, citation, and internal quotation
marks omitted).

    We recognize here, for the first time, that Rodriguez at
least partially abrogated this circuit’s previous precedent,
United States v. Turvin, 517 F.3d 1097 (9th Cir. 2008), upon
which the magistrate judge relied and to which the
government now cites for support. Turvin held that a police
officer did not transform a lawful traffic stop into an
unlawful one when, without reasonable suspicion, he took a
break from writing a traffic citation to ask the driver about a
methamphetamine laboratory and obtain the driver’s consent
to search his truck. Id. at 1098. Turvin concluded that
because “the circumstances surrounding the brief pause here
were reasonable,” the extension was permissible despite the
absence of reasonable suspicion. Id. at 1101–02.

    Rodriguez squarely rejected such a reasonableness
standard for determining whether prolonging a traffic stop
for reasons not justified by the initial purpose of the stop is
lawful. 135 S. Ct. at 1616. Instead, Rodriguez requires that a
traffic stop may be extended to conduct an investigation into
matters other than the original traffic violation only if the
10             UNITED STATES V. LANDEROS

officers have reasonable suspicion of an independent
offense. Id.

    Dissenting in Turvin, Judge Paez wrote, “Because I do
not believe that reasonable suspicion supported [the
officer’s] decision to prolong his traffic stop of Turvin, I
would affirm the district court’s order granting Turvin’s
motion to suppress.” 517 F.3d at 1104 (Paez, J., dissenting).
Judge Paez’s dissent aligns with the majority in Rodriguez,
and so highlights the “tension between Turvin, which
permits slight prolongations to ask unrelated questions, and
Rodriguez, which requires independent, reasonable
suspicion if [the additional investigation] adds any time to a
traffic stop.” United States v. Cornejo, 196 F. Supp. 3d 1137,
1151 (E.D. Cal. 2016). As Turvin’s reasonableness standard
cannot be reconciled with the holding of Rodriguez, Turvin
is no longer binding precedent. See Miller v. Gammie, 335
F.3d 889, 893 (9th Cir. 2003) (en banc) (“[W]here the
reasoning or theory of our prior circuit authority is clearly
irreconcilable with the reasoning or theory of intervening
higher authority, a three-judge panel should consider itself
bound by the later and controlling authority, and should
reject the prior circuit opinion as having been effectively
overruled.”).

    Here, the magistrate judge concluded that the extended
stop was permissible because it was “reasonable,” looking to
Turvin rather than Rodriguez to guide the inquiry. The
magistrate wrote, in relevant part:

       “[W]hether questioning unrelated to the
       purpose of the traffic stop and separate from
       the ticket-writing process that prolongs the
       duration of the stop may nonetheless be
       reasonable . . . [upon] examin[ation] [of] the
                 UNITED STATES V. LANDEROS                         11

        totality of the circumstances surrounding the
        stop, and [a] determin[ation] whether
        [Officer Baker’s] conduct was reasonable.”
        United States v. Turvin, 517 F.3d 1097, 1101
        (9th Cir. 2008) (internal quotations and
        citations omitted).

The district court adopted the magistrate judge’s
recommendation, and therefore his analysis, without
comment or explanation. Because it was based on Turvin and
disregarded Rodriguez, the district court’s approval of the
duration of the stop was premised on legal error.

                                 B.

    Applying Rodriguez, we shall assume that Officer Baker
was permitted to prolong the initially lawful stop to ask the
two women for identification, because he had reasonable
suspicion they were underage. 4 But the several minutes of
additional questioning to ascertain Landeros’s identity was
permissible only if it was (1) part of the stop’s “mission” or
(2) supported by independent reasonable suspicion. 135
S. Ct. at 1615.

    A demand for a passenger’s identification is not part of
the mission of a traffic stop. “When stopping an individual
for a minor traffic violation, ‘an officer’s mission includes
ordinary inquiries incident to the traffic stop.’” Evans, 786
F.3d at 786 (quoting Rodriguez, 135 S. Ct. at 1615). These
involve “checking the driver’s license, determining whether
there are outstanding warrants against the driver, and
inspecting the automobile’s registration and proof of
insurance,” and each shares “the same objective as

    4
      We really cannot tell whether the suspicion was reasonable as we
do not know what the two women looked like.
12             UNITED STATES V. LANDEROS

enforcement of the traffic code: ensuring that vehicles on the
road are operated safely and responsibly.” Rodriguez, 135
S. Ct. at 1615. The identity of a passenger, however, will
ordinarily have no relation to a driver’s safe operation of a
vehicle.

    Rodriguez also “recognized that ‘an officer may need to
take certain negligibly burdensome precautions in order to
complete his mission safely.’” Evans, 786 F.3d at 787
(quoting Rodriguez, 135 S. Ct. at 1616 (emphasis added by
Evans court). But knowing Landeros’s name would not have
made the officers any safer. Extending the stop, and thereby
prolonging the officers’ exposure to Landeros, was, if
anything, “inversely related to officer safety.” Evans, 786
F.3d at 787.

                             C.

    The officers’ extension of the stop therefore violated the
Fourth Amendment unless supported by independent
reasonable suspicion. Reasonable suspicion “exists when an
officer is aware of specific, articulable facts which, when
considered with objective and reasonable inferences, form a
basis for particularized suspicion.” United States v.
Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en
banc); see also Evans, 786 F.3d at 788. The government
argues that Officer Baker had reasonable suspicion of
“underage drinking and curfew violations” based on “the
smell of alcohol and belief that the back seat passengers were
younger than eighteen.” An extension of the traffic stop was
necessary, the government contends, because Landeros’s
“own conduct prevented the officers from being able to
determine whether he had committed the offenses of
underage drinking or curfew violation.” But, on cross-
examination, Officer Baker stated that Landeros did not look
               UNITED STATES V. LANDEROS                   13

“underage” to him at the time of the stop. Further, Officer
Baker’s testimony and reports indicate he asked Landeros
for identification because it was “standard” procedure, not
because he was concerned about Landeros’s age. Indeed, the
reports specifically mention that Officer Baker believed the
two women were underage, but make no mention of
Landeros’s age. As a result, the record does not demonstrate
that Officer Baker had a reasonable suspicion that Landeros
was out past his curfew or drinking underage. Any extension
of the traffic stop to investigate those matters was an
unlawful seizure.

    The government also contends that Landeros’s refusal to
identify himself “provided reasonable suspicion of the
additional offenses of failure to provide identification and
failure to comply with law enforcement orders.” Arizona law
provides:

       It is unlawful for a person, after being advised
       that the person’s refusal to answer is
       unlawful, to fail or refuse to state the person’s
       true full name on request of a peace officer
       who has lawfully detained the person based
       on reasonable suspicion that the person has
       committed, is committing or is about to
       commit a crime.

Ariz. Rev. Stat. Ann. § 13-2412(A). By the plain text of the
statute, Landeros could not have violated Section 13-2412
because, as already explained, the officers lacked reasonable
suspicion, at the time they initially insisted he identify
himself, that Landeros had committed, was committing, or
was about to commit any crimes, including violating curfew
or drinking underage.
14              UNITED STATES V. LANDEROS

    Additionally, Arizona Law provides that “[a] person
shall not willfully fail or refuse to comply with any lawful
order or direction of a police officer invested by law with
authority to direct, control or regulate traffic.” Ariz. Rev.
Stat. Ann. § 28-622(A). The question that remains, then, is
whether law enforcement could lawfully order Landeros to
identify himself, absent reasonable suspicion that he had
committed an offense.

    In some circumstances, a suspect may be required to
respond to an officer’s request to identify herself, and may
be arrested if she does not. Hiibel v. Sixth Judicial District
Court upheld a Nevada “stop and identify” statute, similar to
Arizona’s, that permitted law enforcement to detain “any
person whom the officer encounters under circumstances
which reasonably indicate that the person has committed, is
committing or is about to commit a crime” so as to ascertain
that person’s identity. 542 U.S. 177, 181–82, 185 (2004)
(quoting Nev. Rev. Stat. § 171.123 (2003)). As
authoritatively interpreted by the Nevada Supreme Court,
the statute required only that a suspect disclose her name—
not produce a driver’s license or any other document. Id. at
185.

    The challenge to Nevada’s law arose out of Hiibel’s
arrest for failing to identify himself to law enforcement. Id.
at 181. Earlier on the day of the arrest, the local sheriff’s
department received a report of a man assaulting a woman
in a truck on a particular road. Id. at 180. When an officer
arrived at that road to investigate, he found a truck matching
the reported description, with a man—later identified as
Hiibel—standing outside, and a young woman sitting inside.
Id. at 180–81. The officer explained to the man that he was
investigating a reported fight and repeatedly asked him for
identification. Id. The officer warned Hiibel that if he did not
               UNITED STATES V. LANDEROS                   15

provide identification, he would be arrested for refusing to
identify himself. Id. at 181. Hiibel did not comply, so he was
arrested. Id. The Court determined this application of the
Nevada law permissible, because the request was
“‘reasonably related in scope to the circumstances which
justified’ the stop.” Id. at 189 (quoting Terry v. Ohio, 392
U.S. 1, 20 (1968)). (The Court did not mention that the
officer’s request for “identification,” which it understood as
“a request to produce a driver’s license or some other form
of written identification,” id. at 181, demanded more than
state law required Hiibel to provide.)

    In its opinion, the Court distinguished the circumstances
of Hiibel’s arrest from those of an earlier case, Brown v.
Texas, 443 U.S. 47 (1979). Brown overturned a conviction
under a Texas “stop and identify” law similar to that at issue
in Hiibel. Id. at 49–50. Unlike Hiibel, Brown was stopped,
detained, and interrogated about his identity even though
there was no reasonable suspicion that he had committed any
offense. Id. at 51–52; see also Hiibel, 542 U.S. at 184
(discussing Brown). Brown held squarely that law
enforcement may not require a person to furnish
identification if not reasonably suspected of any criminal
conduct. Brown, 443 U.S. at 52–53.

   In short, Brown holds that an officer may not lawfully
order a person to identify herself absent particularized
suspicion that she has engaged, is engaging, or is about to
engage in criminal activity, and Hiibel does not hold to the
contrary.

    As explained above, the officers insisted several times
that Landeros identify himself after he initially refused, and
detained him while making those demands. At the time they
did so, the officers had no reasonable suspicion that
16             UNITED STATES V. LANDEROS

Landeros had committed an offense. Accordingly, the police
could not lawfully order him to identify himself. His
repeated refusal to do so thus did not, as the government
claims, constitute a failure to comply with an officer’s lawful
order, Ariz. Rev. Stat. Ann. § 28-622(A). There was
therefore no justification for the extension of the detention
to allow the officers to press Landeros further for his
identity.

      Evidence obtained as the result of an unconstitutional
seizure “is ordinarily tainted by the prior illegality and thus
inadmissible, subject to a few recognized exceptions,” none
of which the government contends apply in this case. United
States v. Gorman, 859 F.3d 706, 716 (9th Cir. 2017) (internal
quotation marks omitted.) Here, “the challenged evidence
. . . is unquestionably the product of the illegal governmental
activity—i.e., the wrongful detention.’” New York v. Harris,
495 U.S. 14, 19 (1990) (internal quotation marks and
brackets omitted). The officers discovered the bullets
Landeros was convicted of possessing only because he was
ordered from the car as part of the unlawfully extended
seizure and subsequently consented to a search of his
pockets. As a result, the evidence cannot be introduced at
trial.

    The government repeatedly notes that this court’s
precedent permits police to “ask people [including
passengers in cars] who have legitimately been stopped for
identification without conducting a Fourth Amendment
search or seizure.” United States v. Diaz-Castaneda, 494
F.3d 1146, 1152 (9th Cir. 2007) (emphasis added). But we
need not resolve whether that precedent remains valid after
Rodriguez. Regardless of whether the first request for
Landeros’s identification was lawful, law enforcement’s
               UNITED STATES V. LANDEROS                 17

refusal to take “no” for an answer was not. Diaz-Castaneda
does not suggest otherwise.

    Landeros also refused to comply with the officers’
commands to leave the car. Police officers may order a
suspect out of a car during a traffic stop. Pennsylvania v.
Mimms, 434 U.S. 106, 111 (1977). The Supreme Court has
extended that rule to passengers detained during a lawful
stop. Maryland v. Wilson, 519 U.S. 408 (1997). But here, the
stop was no longer lawful by the time the officers ordered
Landeros to leave the car, as it had extended longer than
justified by either the suspected traffic violation or any
offense as to which there was independent reasonable
suspicion. See Rodriguez, 135 S. Ct. at 1616. As Officer
Baker had, before Landeros was ordered from the car,
impermissibly extended the stop based on Landeros’s refusal
to identify himself, the validity or not of the exit order
standing alone does not matter.

                            III.

   For the foregoing reasons, we REVERSE the district
court’s denial of Landeros’s motion to suppress.
