                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 14-30249
            Plaintiff-Appellee,
                                         D.C. No.
              v.                   1:13-cr-00090-SPW-2

HECTOR MAGALLON-LOPEZ,
        Defendant-Appellant.               OPINION


      Appeal from the United States District Court
              for the District of Montana
       Susan P. Watters, District Judge, Presiding

              Argued and Submitted
         November 3, 2015—Portland, Oregon

                   Filed March 31, 2016

     Before: Raymond C. Fisher, Marsha S. Berzon,
          and Paul J. Watford, Circuit Judges.

              Opinion by Judge Watford;
             Concurrence by Judge Berzon
2            UNITED STATES V. MAGALLON-LOPEZ

                           SUMMARY*


                          Criminal Law

    The panel affirmed the district court’s denial of a motion
to suppress drugs found in a car that officers stopped and
seized based on information learned through wiretap
intercepts while investigating an interstate drug-trafficking
ring.

    The defendant, who did not and could not seriously
contest the existence of reasonable suspicion for stopping the
car, contended that the stop violated the Fourth Amendment
because the officer who pulled him over deliberately lied
when stating the reason for the stop, and the reason the officer
gave was not itself supported by reasonable suspicion.
Rejecting this contention, the panel wrote that so long as the
facts known to the officer establish reasonable suspicion to
justify an investigatory stop, the stop is lawful even if the
officer falsely cites as the basis for the stop a ground that is
not supported by reasonable suspicion. The panel concluded
that in light of the information obtained during the stop, the
officers had probable cause to seize the car.

    Judge Berzon concurred because the line of cases that
begins with Whren v. United States, 517 U.S. 806 (1996),
seems to lead ineluctably to the conclusion that it is fine for
police officers to tell drivers that they observed—or thought
they observed—a traffic violation when they did not. Noting
that the defendant did not make the argument here, Judge

  *
    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. MAGALLON-LOPEZ                   3

Berzon would not foreclose holding, in another case, that
there is a due process based right to be informed of the true
basis for a stop or arrest.


                         COUNSEL

Michael J. Donahoe (argued) and Mark S. Werner, Assistant
Federal Public Defenders, Federal Defenders of Montana,
Billings, Montana, for Defendant-Appellant.

Michael W. Cotter, United States Attorney, Brendan P.
McCarthy (argued), Assistant United States Attorney, United
States Attorney’s Office for the District of Montana, Billings,
Montana, for Plaintiff-Appellee.


                         OPINION

WATFORD, Circuit Judge:

    Officers investigating an interstate drug-trafficking ring
learned through wiretap intercepts that a shipment of
methamphetamine would be traveling by car from
Washington to Minnesota. They stopped the car en route in
Montana; the car belonged to appellant Hector Magallon-
Lopez, who was driving. Officers seized the car and, after
obtaining a search warrant, discovered approximately two
pounds of methamphetamine hidden in an area beneath the
trunk. That discovery formed the basis for Magallon-Lopez’s
drug-trafficking convictions following a jury trial. On appeal,
he challenges only the district court’s denial of his motion to
suppress the drugs found in his car.
4          UNITED STATES V. MAGALLON-LOPEZ

                              I

    The relevant facts are not in dispute. Officers working
with a Drug Enforcement Administration task force obtained
authorization to wiretap a suspected drug trafficker’s
telephone. From the wiretap intercepts, the officers learned
that: (1) on September 27, 2012, a man named Juan Sanchez
would be transporting methamphetamine from the Yakima
Valley in Washington to Minneapolis, Minnesota;
(2) Sanchez would be accompanied by another Hispanic male
who had a tattoo on his arm of a ghost, skull, or something
else related to death and went by the nickname “Chaparro”
(meaning short); and (3) the two men would be traveling in
a green, black, or white passenger car with Washington
plates. Based on cell site location information obtained from
Sanchez’s cell phone, the officers estimated that the car
would be traveling through Bozeman, Montana, sometime
between 3:00 a.m. and 4:00 a.m. on September 28.

    The officers set up a surveillance operation near Bozeman
on Interstate 90, the main east-west highway through
Montana. Around 3:00 a.m. on September 28, they spotted
a green Volkswagen Passat with Washington plates traveling
eastbound. An officer dispatched to follow the car confirmed
that two men were inside and that both appeared to be
Hispanic and short in stature. The officer relayed the car’s
license plate number to another officer, who determined that
the car was registered to a man named Hector Lopez at an
address in Toppenish, Washington, a town in the Yakima
Valley associated with the investigation.

    After obtaining this information, the officers decided to
conduct an investigatory stop. The officer following the car
pulled it over as if making a routine traffic stop. Although
           UNITED STATES V. MAGALLON-LOPEZ                   5

the officer had not observed any traffic violations, he told
Magallon-Lopez that the reason for the stop was Magallon-
Lopez’s failure to signal properly before changing lanes. The
officer knew this was not the real reason for the stop, but he
did not want to disclose at that point the true nature of the
investigation.

    Officers questioned both occupants of the car. They
asked for identification and confirmed that the passenger was
a man named Juan Sanchez. They also confirmed that the
driver was Magallon-Lopez, the registered owner of the car.
After asking Magallon-Lopez to pull up his sleeves, the
officers observed a tattoo of a ghost or grim reaper on his
right forearm. Both Magallon-Lopez and Sanchez said they
were traveling from the Yakima Valley to Minnesota to work
in a restaurant.

    While Magallon-Lopez and Sanchez were detained on the
side of the highway, the officers summoned a drug-detection
dog from a nearby sheriff’s office. The dog positively alerted
to the presence of drugs in the car. At that point the officers
seized the car and took it to the sheriff’s office for
safekeeping while they obtained a search warrant. The
validity of the warrant is not at issue, other than the
lawfulness of the stop and subsequent seizure of the car that
led to its issuance.

                              II

    The first question is whether the officers lawfully stopped
the car. The Fourth Amendment permits investigatory stops
if the facts known to the officers established “reasonable
suspicion to believe that criminal activity may be afoot.”
United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal
6          UNITED STATES V. MAGALLON-LOPEZ

quotation marks omitted). Magallon-Lopez does not
seriously contest the existence of reasonable suspicion, nor
could he.

    Based on the wiretap intercepts, the officers knew (or at
least had probable cause to believe) that Juan Sanchez would
be leaving the Yakima Valley on September 27 and traveling
by car to Minneapolis with a shipment of methamphetamine.
The officers’ information about this trip—including the
identifying details of the car and Sanchez’s traveling
companion—came not from an anonymous tip but straight
from the conspirators themselves. Officers overheard
members of the conspiracy discussing details of the planned
trip in real time, during conversations that the conspirators
did not know were being intercepted by law enforcement.
That information, like information received from a victim or
citizen witness, is presumptively reliable absent
circumstances suggesting that the conspirators might be
lying. See Ewing v. City of Stockton, 588 F.3d 1218, 1224–25
(9th Cir. 2009); 2 Wayne R. LaFave, Search and Seizure
§ 3.4(a), at 274–75 (5th ed. 2012). Here, there were no such
circumstances. The officers therefore had probable cause to
believe that methamphetamine would be found in the car
transporting Juan Sanchez through Bozeman on the date and
during the time frame in question. To justify stopping a
particular vehicle, however, the officers needed reasonable
suspicion to believe they had identified the right car.

    The details that the officers confirmed before making the
stop sufficed to establish reasonable suspicion. Green, black,
or white passenger car with Washington plates? Check.
Traveling eastbound through Bozeman, Montana, on the
correct date and during the predicted, quite narrow time
frame? Check. Occupied by two Hispanic males? Check.
           UNITED STATES V. MAGALLON-LOPEZ                      7

Registered to an owner who lived in a town associated with
the investigation and who, at least in terms of stature, fit the
description of the person expected to be accompanying
Sanchez? Double check. Verification of these details, taken
together, established reasonable suspicion to believe that the
green Passat was the car transporting Juan Sanchez as
discussed in the wiretap intercepts.

    Unable to contest the existence of reasonable suspicion,
Magallon-Lopez challenges the legality of the stop on a
different theory. He contends that the stop violated the
Fourth Amendment because the officer who pulled him over
deliberately lied when stating the reason for the stop, and the
reason the officer gave was not itself supported by reasonable
suspicion.

     That the officer lied about seeing Magallon-Lopez make
an illegal lane change does not call into question the legality
of the stop. The standard for determining whether probable
cause or reasonable suspicion exists is an objective one; it
does not turn either on the subjective thought processes of the
officer or on whether the officer is truthful about the reason
for the stop. If, for example, the facts provide probable cause
or reasonable suspicion to justify a traffic stop, the stop is
lawful even if the officer made the stop only because he
wished to investigate a more serious offense. Whren v.
United States, 517 U.S. 806, 812–13 (1996). Likewise, if the
facts support probable cause to arrest for one offense, the
arrest is lawful even if the officer invoked, as the basis for the
arrest, a different offense as to which probable cause was
lacking. Devenpeck v. Alford, 543 U.S. 146, 153–55 (2004);
United States v. Ramirez, 473 F.3d 1026, 1030–31 & n.2 (9th
Cir. 2007). The Court in Devenpeck emphasized that the
objective facts are what matter in situations like these:
8          UNITED STATES V. MAGALLON-LOPEZ

        While it is assuredly good police practice to
        inform a person of the reason for his arrest at
        the time he is taken into custody, we have
        never held that to be constitutionally required.
        Hence, the predictable consequence of a rule
        limiting the probable-cause inquiry to
        offenses closely related to (and supported by
        the same facts as) those identified by the
        arresting officer is not . . . that officers will
        cease making sham arrests on the hope that
        such arrests will later be validated, but rather
        that officers will cease providing reasons for
        arrest. And even if this option were to be
        foreclosed by adoption of a statutory or
        constitutional requirement, officers would
        simply give every reason for which probable
        cause could conceivably exist.

543 U.S. at 155 (footnote omitted).

    The same principle—that the objective facts are
controlling in this context, not what the officer said or was
thinking—applies here. So long as the facts known to the
officer establish reasonable suspicion to justify an
investigatory stop, the stop is lawful even if the officer falsely
cites as the basis for the stop a ground that is not supported by
reasonable suspicion. We emphasize, however, that although
our focus is on the objectively reasonable basis for the stop,
not the officers’ subjective intentions or beliefs, the facts
justifying the stop must be known to officers at the time of
the stop. See Moreno v. Baca, 431 F.3d 633, 639–40 (9th Cir.
2005).
           UNITED STATES V. MAGALLON-LOPEZ                   9

    The only remaining question is whether, in light of the
information obtained during the stop, the officers had
probable cause to seize Magallon-Lopez’s car. We think they
did. As discussed above, given the reliability of the
information gleaned from the wiretap intercepts, the officers
had probable cause to believe that Juan Sanchez would be
transporting methamphetamine by car on the date and during
the time frame in question. That, in turn, gave the officers
probable cause to believe that methamphetamine would be
found inside the car in which Sanchez was riding, assuming
they could identify the correct car.

    As we have said, even before the officers stopped
Magallon-Lopez’s car, the facts known to the officers
provided reasonable suspicion to believe they had identified
the correct car. The investigatory stop eliminated virtually
any doubt on that score, as the stop confirmed that a man
named Juan Sanchez was indeed a passenger in the car. Sure,
he could have been a different Juan Sanchez, not the one
mentioned in the wiretap intercepts, but the likelihood of that
was minuscule given all the other details that matched,
including the tattoo on Magallon-Lopez’s arm and the fact
that both he and Sanchez admitted they were traveling to
Minnesota. In light of these and the other details the officers
were able to corroborate, there was “a fair probability” that
the officers had stopped the right car and that drugs would be
found inside. Illinois v. Gates, 462 U.S. 213, 238 (1983).
That gave them probable cause to seize the car.

    Because the officers had probable cause to seize the car
even without the drug-detection dog’s positive alert, we need
not address Magallon-Lopez’s argument that the dog’s lapsed
certification rendered his alert insufficiently reliable under
Florida v. Harris, 133 S. Ct. 1050 (2013).
10         UNITED STATES V. MAGALLON-LOPEZ

                   *            *            *

   The district court correctly denied Magallon-Lopez’s
motion to suppress. The judgment is AFFIRMED.



BERZON, Circuit Judge, concurring:

    Is it fine for police officers flatly to tell the drivers they
stop that they observed—or thought they observed—a traffic
violation when they really did not? We hold today that it is.
And I cannot disagree, as the line of cases that begins with
Whren v. United States, 517 U.S. 806 (1996), seems to lead
ineluctably to that distressing conclusion. But lying to
government officials can lead to lengthy prison terms. See
U.S.S.G. § 2J1.3(a) (providing a base offense level of
fourteen for perjury-type offenses, which, at criminal history
category I, results in a recommended sentence of fifteen to
twenty-one months). One would expect that lying by police
officers to citizens would have consequences as well.

    Whren and the other cases the majority cites do not deal
directly with flat out lies about what police officers saw.
Instead, Whren dealt with pretextual stops—that is, instances
in which the officers did perceive actions that violated the
traffic laws, but were really using the traffic violations as a
basis for investigating some other crime. Perhaps there was
no reasonable suspicion as to the real reason for the stop, just
a hunch. Or perhaps the officers did not want to reveal the
real reason for the stop, as the underlying criminal
investigation was still ongoing. United States v. Evans noted
that law enforcement terms this type of stop a “wall
stop”—that is, “the traffic stop [i]s to be independent and
           UNITED STATES V. MAGALLON-LOPEZ                   11

clear from the [ongoing] investigation to protect [law
enforcement’s] information and the data and identities of the
sources of information.” 786 F.3d 779, 781 n.2 (9th Cir.
2015) (alterations omitted). In either instance, police officers
are usually confident that they can “develop . . . probable
cause” of a traffic violation. Id. at 781. The traffic laws are
sufficiently comprehensive, as well as general, that almost all
drivers violate at least one whenever they are on the road.
See Whren, 517 U.S. at 810 (noting the defendants’ argument
to this effect).

    But what if the driver is very careful not to break any
laws, as one might be if carrying a cargo of illegal drugs?
And what if the police officers are intent nonetheless on
catching their targets, without revealing that they are pretty
sure what is in the car? Here, the law enforcement solution
was to flat out lie. Not just about why the car was being
stopped (as in Whren and its progeny), but also about what
they had seen—the purported traffic violation.

    As I read Whren, 517 U.S. 806, and Devenpeck v. Alford,
543 U.S. 146 (2004), there is no plausible argument for
treating this sort of lie differently from the lie involved in
Whren—as to why the officer is actually stopping the
suspect—or the misstatment in Devenpeck—as to the offense
as to which the officer had probable cause for an arrest. In
both instances, the Supreme Court found no Fourth
Amendment violation as long as there was indeed a proper
basis for the stop or arrest on the facts known to the officers.
As a result, the suspect in both instances had no useful
opportunity verbally to explain why he should not be cited or
arrested, as the purported basis for the police action was not
binding on law enforcement anyway. That any such
explanation would have been similarly futile here, this time
12         UNITED STATES V. MAGALLON-LOPEZ

because the police were lying about what they saw, does not
distinguish Whren and Devenpeck.

     The upshot is that approving the practice used in this case
is the inevitable result of the Whren/Devenpeck line of cases.
But as countless commentators have warned, Whren and
related cases “hint[] to law enforcement that it can escape the
Fourth Amendment’s restrictions if it offers phony
explanations for [its] actions.” Wayne R. LaFave, The
“Routine Traffic Stop” from Start to Finish: Too Much
“Routine,” Not Enough Fourth Amendment, 102 Mich. L.
Rev. 1843, 1904 (Aug. 2004). The Whren-type precedents
are especially troubling in that they enable artifice and abuse
by law enforcement, with disproportionate effect on racial
minorities; “[i]ndeed, as the recent debate over racial
profiling demonstrates all too clearly, a relatively minor
traffic infraction may often serve as an excuse for stopping
and harassing an individual.” Atwater v. City of Lago Vista,
532 U.S. 318, 372 (2001) (O’Connor, J., dissenting). At least
in part because of these considerations, I would not foreclose,
in another case, holding that there is a due process (not Fourth
Amendment) based right to be informed of the true basis for
a stop or arrest. Devenpeck, I note, left open that possibility.
See 543 U.S. at 151, 155. But no such argument was made
here.

     Many states find the officers’ conduct here concerning,
for the same reasons I do. For that reason, many jurisdictions
require law enforcement officers to inform detainees of the
reasons for custodial arrests, and some hold them responsible
for misstatements. While Magallon-Lopez does not argue in
this case for a constitutionally-based requirement that police
officers identify some basis for a stop or arrest, it is good
police practice to inform a detainee of the basis of a
           UNITED STATES V. MAGALLON-LOPEZ                   13

detention, as Devenpeck acknowledges. See 543 U.S. at 155.
The non-exhaustive list of states that have adopted such a
requirement includes New York, California, Massachusetts,
and North Carolina, all of which have enacted statutes to this
effect. See N.Y. Crim. Proc. Law § 140.15(2); Cal. Penal
Code § 841; Mass. Gen. Laws ch. 263 § 1; N.C. Gen. Stat.
§ 15A-401(c)(2)c. The Massachusetts statute—perhaps to
impose the same standard of truthfulness on both law
enforcement and everyday citizens—specifically requires that
an officer’s statement be true, and punishes an officer’s false
statement by a fine of up to $1,000 and/or imprisonment for
up to one year. Mass. Gen. Laws ch. 263 § 1. Georgia’s
courts have also established, by precedent, the requirement
that an officer inform an arrestee of the cause of his or her
arrest. See Dorsey v. State, 66 S.E. 1096, 1097–98 (Ga. Ct.
App. 1910); see also Bashir v. Rockdale Cnty., 445 F.3d 1323
(11th Cir. 2006) (reversing summary judgment for officers on
the plaintiff’s state-law unlawful arrest claim because the
officers did not inform the plaintiff of the crime for which he
was arrested).

    Most relevant here—as Magallon-Lopez was stopped in
Montana by a Montana officer—Montana requires an
arresting officer to “inform the person to be arrested of the
officer’s authority, of the intention to arrest that person, and
of the cause of the arrest.” Mont. Code Ann. § 46-6-312
(emphasis added). Magallon-Lopez has not asserted that his
arrest was unlawful under this provision, and Montana’s
courts have not extended the statute, applicable only to
“arrests,” to Terry-type stops premised on reasonable
suspicion, as occurred here. Nonetheless, that Montana and
other states have such laws in place may guard against the
frequent use of stops similar to the one here.
