UNITED STATES OF AMERICA v. JAMES ANTONIO BROWN, AKA James Anthony Brown
No. 19-50250
United States Court of Appeals for the Ninth Circuit
May 12, 2021
D.C. No. 3:18-cr-00058-JLS
Appeal from the United States District Court for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted July 10, 2020
Pasadena, California
Filed May 12, 2021
Before: Bobby R. Baldock,* Marsha S. Berzon, and Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins
Criminal Law
The panel reversed the district court‘s denial of James Antonio Brown‘s motion to suppress the fruits of a search of his pocket and his subsequent conviction for possession of 35.35 grams of heroin with intent to distribute, and remanded.
Brown contended that his encounter with two police officers in a motel parking lot did not comply with the limitations set forth in Terry v. Ohio, 392 U.S. 1 (1968), and that the evidence the officers found on him should have been suppressed as fruits of a violation of his Fourth Amendment rights.
The panel held that the officers’ encounter with Brown was consensual until the point at which an officer ordered Brown to stand up and turn around; at that point, the officer had seized Brown, but the seizure was justified because the officer had developed reasonable suspicion that Brown was engaged in a drug transaction.
The panel concluded, however, that, under Sibron v. New York, 392 U.S. 40 (1968), the officer‘s search of Brown‘s pocket exceeded the limited scope of what Terry permits because, in conducting the limited protective search for weapons that Terry authorizes, the officer did not perform any patdown or other initial limited intrusion but instead
COUNSEL
Paul W. Blake (argued), Law Offices of Paul W. Blake, Escondido, California, for Defendant-Appellant.
Mark R. Rehe (argued), Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Robert S. Brewer, Jr., United States Attorney; United States Attorney‘s Office, San Diego, California; for Plaintiff-Appellee.
OPINION
COLLINS, Circuit Judge:
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that if an officer has reasonable articulable suspicion that a person is engaged in a crime, the officer may briefly detain that person to make a limited and appropriate inquiry, id. at 21-22, and if the officer has reason to believe that the person detained may be armed with any sort of weapon, the officer may further conduct a limited protective frisk for such weapons, id. at 27-29. Appellant James Antonio Brown contends that his encounter with two police officers in a motel parking lot did not comply with Terry‘s limitations in multiple respects, and that, as a result, the heroin and other evidence the officers found on him should have been suppressed as fruits of a violation of his Fourth Amendment rights. We conclude that the officers complied with Terry and its progeny in all respects except one: in
I
On the morning of November 15, 2017, El Cajon Police Department Officers Robert Wining and Robert Nasland responded to a radio call stating that motel staff at a downtown Econo Lodge Motel had reported two “transients” in the motel parking lot, one of whom was a white male who had a bike and who had been seen urinating in the bushes and the other of whom was a female.1 The officers, who were in uniform, drove their patrol car over to the Econo Lodge and turned into the parking lot on the motel‘s south side. On the other side of the parking lot from
Barlett is a white male who had a bike with him, so he fit the general description of one of the individuals provided in the radio call. Brown, however, did not meet the description of either of those individuals, because he is an African-American male and had no bicycle with him. Officer Wining testified that the two men look surprised to see the police, describing their reaction as a “deer-in-the-headlights look.” Wining initiated a conversation, stating, “Howdy, guys,” and asking, “What are we up to today?” Brown responded that he had come to “get some stuff out of the van,” and Barlett stated that he was going to help Brown. Wining responded skeptically, telling Barlett “the motel called us because they saw you urinating back here in the bushes.” Barlett responded, “they didn‘t see me,” emphasizing the word “me.” Wining then asked Barlett what his name was and, after he responded, Wining inquired if he had identification. While Barlett looked for his identification, Wining asked what room they were staying in, and Brown gave his room number. Wining then asked
Wining then asked the two men directly, “So, do we have a drug deal going on here, or what do we got going?” Barlett mumbled a response, and Brown said, “A drug deal? No, sir.” Wining, who had 22 years of experience as a policeman, stated that “that‘s not uncommon in this area, so don‘t—you don‘t need to look at me so surprised.” At Wining‘s request, Brown supplied his name, date of birth, height, and weight. For almost the next full minute, Wining wrote down information and communicated over his radio. Brown then spoke up, saying, “Didn‘t you say your call was for him urinating in the bushes; what does this got to do with me?” After Wining reiterated what the call was about, Brown said, referring to Barlett, “he just barely rode up.” Wining said, “OK, there was somebody on a bike mentioned. Alright? So, we‘re here just to check it out.” Wining asked Brown if the manager could verify that he was staying at the motel, and Brown said yes and explained that he was staying with another person there.
The officers radioed in the identifying information about the two men, which took over one minute. Wining then asked if either of the men had any warrants. Brown said no, but Barlett answered that he had “just cleared up some,” having been released on bond from jail only two weeks ago. Pointing to the visible needle marks on Barlett‘s arms, Wining asked him whether he was using heroin. Barlett said, “not anymore,” but he acknowledged that he “ha[d] a history of it.” Shortly thereafter, Brown‘s cell phone went off, and
At this point, the encounter between the four men had lasted just over seven minutes. While asking about the multi-tool, Wining noticed that Brown “put his hands down to his sides” and that he then “reach[ed] his index finger into his right pocket.” Wining walked over to Brown who raised his hands to his sides and said: “Oh, my bad, man, my bad.” Wining ordered Brown to stand up and turn around. Wining explained, “I saw you reaching in that pocket,” and when Brown denied that he had done so, Wining said, “Yeah, you were.” Brown complied with Wining‘s instructions and allowed Wining to secure his arms behind his back in a finger hold. Pointing with his free hand to Brown‘s pants pocket, Wining asked, “What‘s in here?” Brown responded, “I‘m not quite sure.” Wining then stated “I‘m going to check, OK?” Brown grunted a monosyllabic response that is unintelligible on the officers’ body camera video. Wining then reached into Brown‘s pocket and pulled out a plastic bag. Brown claimed that it was coffee, but after inspecting it, Wining said “that is not coffee, James, that‘s heroin.” Wining conducted a more thorough search of Brown, finding
The police subsequently obtained the motel‘s security camera footage from the hour immediately before Brown‘s and Barlett‘s encounter with the officers. It showed several people driving up to the vicinity of the U-Haul, briefly interacting with Brown, and then leaving.
Brown was charged with one felony count of possession of 35.35 grams of heroin with intent to distribute, in violation of
At trial, Brown testified that he never sold heroin to anyone and that he possessed the heroin that day only for his personal use. He testified that, at the time of his arrest, he was smoking at least three grams a day to alleviate the pain from injuries sustained in a car accident. The jury returned a guilty verdict and Brown was sentenced to 41 months in prison and three years of supervised release. Brown timely appealed, and we have jurisdiction under
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
On appeal, Brown contends both that he was unlawfully seized by Officer Wining without the requisite reasonable suspicion and that, even if Wining had authority to detain Brown under Terry, the search of Brown‘s pocket exceeded
A
We conclude that the officers’ encounter with Brown was consensual until the point at which Officer Wining ordered Brown to stand up and turn around. At that point, Wining had seized Brown, but the seizure was justified because, by that time, Wining had developed reasonable suspicion that Brown was engaged in a drug transaction with Barlett.
1
The Supreme Court has held that “a seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991). “So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” Id. (simplified). But once the officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen,” then a seizure has occurred and the requisite level of justification for the seizure must be shown. Id. If the consensual encounter has ripened into an investigatory detention under Terry, then the officer must have “‘reasonable suspicion‘—that is, ‘a particularized and objective basis for suspecting the particular person stopped’ of breaking the law.” Heien v. North Carolina, 574 U.S. 54, 60 (2014) (citation omitted). But if the encounter has ripened into a full-blown arrest, then
A consensual encounter with a police officer ripens into a seizure when, under “all the circumstances surrounding the encounter,” the “police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, 501 U.S. at 439. This “‘reasonable person’ test presupposes an innocent person.” Id. at 438. Having reviewed the record evidence, including the videotape of the incident, we conclude that Wining‘s encounter with Brown and Barlett did not ripen into a seizure of Brown until the point at which Wining ordered Brown to stand up and turn around.
Several factors confirm that the officers’ approach began as a consensual encounter. The “encounter occurred in the middle of the day” and “in public view,” United States v. Crapser, 472 F.3d 1141, 1146 (9th Cir. 2007), and it took place in an area where Brown was already seated when the police arrived and from which he showed no inclination to depart, see Bostick, 501 U.S. at 435-46 (in determining whether the encounter was consensual, court should consider that person approached by officer is in a place that he or she “has no desire to leave“). The officers’ initial approach was casual and nonthreatening, opening with the greeting, “Howdy, guys,” followed by an open-ended question about what they were doing. Wining promptly disclosed that the officers were there to investigate the motel‘s report of public urination, and Wining accused Barlett of committing it. Brown correctly realized—and said aloud—that that report did not involve him. Officer Wining stated his suspicion that the men were perhaps engaged in a drug deal, but both denied it, and Wining‘s questioning then shifted almost
But the nature of the encounter changed once Wining ordered Brown to stand up and turn around. By giving this order, Wining “affirmatively assert[ed] authority over [Brown‘s] movements,” Crapser, 472 F.3d at 1146, and at that point Brown was seized for Fourth Amendment
2
The only remaining question concerning the legality of this temporary seizure of Brown is whether Wining had the requisite reasonable suspicion to justify it. In “discussing how reviewing courts should make reasonable-suspicion determinations,” the Supreme Court has said “repeatedly that they must 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.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (citation omitted). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.‘” Id. (citation omitted).
As an initial matter, we reject the Government‘s suggestion that, as soon as the officers arrived at the motel, they already had reasonable suspicion that Brown was
But by the time that Brown was asked to stand up and turn around—which is when the seizure commenced—the officers had acquired additional information that gave rise to reasonable suspicion that Barlett was there to purchase drugs from Brown. Barlett had visible needle marks on his arms and admitted to having used heroin in the past. His explanation for why he had the unopened multi-tool—he had found it “under [a] bridge“—strained credulity, and Wining knew from his prior experience that heroin addicts may try to barter items for drugs. Wining also knew that drug deals were not uncommon at motels in the area, and it was also notable that Brown and Barlett were seated behind the van,
B
We turn, therefore, to whether Wining‘s search of Brown‘s pocket was consistent with the Fourth Amendment. We conclude that Wining had ample justification to conduct a protective frisk, but that the search of Brown‘s pocket exceeded the permissible scope of such a frisk.
1
In connection with an otherwise lawful investigative detention under Terry, “an officer may conduct a brief pat-down (or frisk) of an individual when the officer reasonably believes that ‘the persons with whom he [or she] is dealing may be armed and presently dangerous.‘” United States v. I.E.V., 705 F.3d 430, 434 (9th Cir. 2012) (quoting Terry, 392 U.S. at 30). The test, again, is an objective one: “‘whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.‘” Id. at 435 (quoting Terry, 392 U.S. at 27).
Wining testified that he saw Brown “reach his index finger into his right pocket,” and the district court did not
2
Brown nonetheless contends that, even if Wining was authorized to conduct a protective frisk, his search of Brown‘s right pocket exceeded what Terry and its progeny allow. We agree.
In describing the scope of the permissible protective frisk that is authorized during a brief investigative detention, Terry emphasized that the “sole justification” for such a search “is the protection of the police officer and others nearby,” and any such search “must therefore be confined in scope to an intrusion reasonably designed to discover guns,
In a companion case to Terry, the Supreme Court addressed how these limits apply in the context of an officer who, as in this case, performed a protective pocket search rather than a patdown. See Sibron, 392 U.S. 40. In Sibron, the officer observed “Sibron talking to a number of known narcotics addicts over a period of eight hours,” id. at 62, and the officer ultimately approached Sibron at a restaurant and “told him to come outside,” id. at 45. Once outside, the officer said to Sibron, “You know what I am after.” Id. Sibron reached into his pocket, and the officer then “thrust
But the Court also went on to hold that, “[e]ven assuming arguendo that there were adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by [the officer] were so clearly unrelated to that justification as to render the heroin inadmissible.” Id. at 65. As the Court explained, the “search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault,” and it was only after feeling such weapons that the officer in Terry had “place[d] his hands in the pockets of the men he searched.” Id. By contrast, the officer in Sibron made “no attempt at an initial limited exploration for arms,” but simply “thrust his hand into Sibron‘s pocket and took from him envelopes of heroin.” Id. As a result, the Court concluded, “[t]he search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception—the protection of the officer by disarming a potentially dangerous man.” Id. The search of Sibron‘s pocket therefore “violate[d] the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents.” Id. at 65-66.
Here, as in Sibron and Dickerson, the officer exceeded the bounds of the weapons search permitted by Terry. That conclusion is compelled by Sibron, which in the relevant respects is on all fours with this case. Here, as in Sibron, the police officer did not bother to conduct “an initial limited
Although Brown relied on Sibron for this point in his opening brief, the Government failed even to mention the case in its answering brief. At argument, the Government suggested that Sibron is distinguishable because the Court noted that the officer in Sibron had not testified that he acted out of safety concerns. But this goes more to the Court‘s
The Government notes that courts have not required that officers employ a patdown as the sole initial method of conducting a protective search under Terry. This observation provides no basis for evading Sibron here. The Government cites no case in which the Supreme Court or this court has ever upheld a pocket search as the initial means of conducting a protective search of a fully compliant detainee
For example, in Adams v. Williams, 407 U.S. 143 (1972), an officer conducted a Terry stop based on an informant‘s tip that a man sitting in a particular nearby vehicle at 2:15 AM in a high-crime area “had a gun at his waist” and was carrying drugs. Id. at 144-45. After the officer approached the car and asked the occupant to open the car door and to step outside, the occupant ignored that request and instead stayed in the car and rolled down the window. Id. at 145, 148. The officer immediately reached through the window and grabbed a loaded gun, which had not been visible from outside of the car, from the occupant‘s waistband, “precisely the place indicated by the informant.” Id. at 145. The Court held that, “[u]nder these circumstances the policeman‘s action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety,” “was reasonable,” and was consistent with Terry. Id. at 148. Adams bears no resemblance to this case. It did not involve a pocket search as the initial means of intrusion; rather, it involved the immediate grabbing of a gun from the waistband of an uncooperative suspect in precisely the place where an informant had said it would be. Indeed, the Court in Adams specifically highlighted the fact that the suspect‘s refusal “to step out of the car so that his movements could more easily be seen” presented an “even greater threat” to the officer‘s safety that justified a more direct and focused protective intrusion. Id. Moreover, the encounter in Adams took place in middle-of-the-night circumstances that would reasonably be thought to present additional risks. Id. at 147. Nothing in Adams justifies the officer‘s decision in this case
The Government relies on our decision in United States v. Hill, 545 F.2d 1191 (9th Cir. 1976), but it too is inapposite. In Hill, police officers were investigating an armed robbery of a local bank. Id. at 1192. The report of the robbery indicated that the perpetrator, “lifting his shirt,” had “displayed to the teller what appeared to be a gun.” Id. Thus, as in Adams, the officers had specific information indicating that a gun would be in a particular place on a particular individual. An officer encountered Hill in the immediate vicinity of the robbery and intended to ask him whether he had seen the suspect “running through the area,” but the officer “noticed a large bulge at [Hill‘s] waistband which he suspected of being caused by a weapon.” Id. Without patting Hill down, the officer lifted Hill‘s untucked shirt and found not a gun, but the money Hill had stolen from the bank. Id. at 1192-93. In holding that the officer‘s actions “did not transcend the permissible bounds established by Terry,” we emphasized that the officer had not conducted a “general exploratory search[],” but only a “direct and specific inquiry” that corresponded to the report of a gun in the suspect‘s waistband under his shirt. Id. at 1193. Notably, we distinguished Sibron on the grounds that it “involve[d] pocket searches,” and we also noted that in Sibron there was no justification for a protective search in the first place. Id. Hill, like Adams, confirms that in some circumstances, the initial method for conducting a protective search during a Terry stop need not be a patdown. See United States v. Baker, 78 F.3d 135, 136, 138 (4th Cir. 1996) (officer‘s order that suspect lift his shirt, thereby revealing a gun, was justified by Terry after officer noticed a bulge under the suspect‘s shirt). But neither case supports the quite
The Government nonetheless seizes on Hill‘s comment that, “[a]ny limited intrusion designed to discover guns, knives, clubs or other instruments of assault are [sic] permissible” during a Terry protective search, id. at 1193, and it therefore argues that immediate pocket searches are always allowed during Terry stops. The Government errs in overreading this comment, which says nothing more than that a properly “limited” intrusion is permissible. We know from Sibron that the intrusion in this case was not “limited” in the manner that Terry and Sibron require. Moreover, the Government‘s overreading of this remark is impossible to square with the Court‘s holding in Dickerson. There, as we have explained, the Court held that a patdown of a pocket exceeded in length and intrusiveness what was necessary to verify that the suspect did not have a weapon. 508 U.S. at 378-79. According to the Government‘s view, however, the primary error that the officer in Dickerson made was apparently not to exercise his supposed authority to immediately start with a direct pocket search. Such a view would eviscerate both Dickerson and Sibron, and so it cannot be correct. Indeed, the Government‘s position that officers can always choose to begin with pocket searches would erase the critical distinction that Dickerson underscored between a limited intrusion to detect weapons and a general search “‘to discover evidence of crime.‘” Id. at 373 (citation omitted).
The Government also claims that this court “has already specifically approved pocket searches as reasonable protective searches,” citing United States v. Thompson, 597 F.2d 187 (9th Cir. 1979), and United States v. Hoffman, 762 F. App‘x 397 (9th Cir. 2019). These cases are
Finally, the Government relies on the Fifth Circuit‘s decision in United States v. Reyes, 349 F.3d 219 (5th Cir. 2003), which concluded that an officer‘s order to the detainee to empty his pockets and lift his shirt was a reasonable protective search under Terry. Id. at 225. However, the Government overlooks the fact that Reyes does not indicate that anything was found in Reyes‘s pockets and that the opinion instead describes his motion to suppress as directed only to the discovery of a taped package of drugs when he was asked to lift his shirt. Id. at 222, 225. Although the Fifth Circuit also suggested that the order to empty the pockets was reasonable, id. at 225, that observation was dicta and is inconsistent with Sibron and Dickerson.
Given that Brown was fully compliant and there were no special circumstances indicating a need for more immediately intrusive measures, the officer‘s direct search of Brown‘s pocket “was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception—the protection of
REVERSED and REMANDED.