United States v. James Earl Atlas
94 F.3d 447
8th Cir.
1996
Check Treatment

*2 ARNOLD, Before RICHARD S. MAGILL, Judge, Judge, Circuit and VAN SICKLE,** Judge. District MAGILL, Judge. Circuit appeals James Atlas his conviction for be- ing firearm, a felon in of a violation of 922(g)(1), contending 18 U.S.C. warrantless search of a duffel was unconstitutional searching because the possess officers did not a reasonable danger. were in imminent Atlas also contends that the district erred at in awarding only a two responsibili- level reduction for ty, rather than a three level reduction.1 SICKLE, government cross-appealed **THE HONORABLE BRUCE M. VAN 1. The from the sen- tence, appeal April United States District for the District of but this was dismissed on Dakota, sitting by designation. North nylon bag just part, and remand similar tо the one part, reverse discarded affirm at 11-12. resentencing. Atlas. Id. house, approached As he Officer Reim- I. er asked Atlas the house was 1007 Hum- *3 13, 1994, Minneapolis, September On boldt, responded to which Atlas “no.” Tr. at Reimer and Minnesota Police Officers Jason 12. He then asked Atlas what was in the responded to a “re- Frederick McDonald “[Wjhat bag. responded, bag?,” When Atlas at property”2 trieve call 1007 Humboldt Ave- said, you just “[T]he Reimer threw Minneapolis. North in The officers were nue Testimony Reimer, down.” of Officer Tr. of warning that there was a “hazard” advised Evidentiary Hr’g Before the District address, pre- this which means that some оn 1995) (hereinafter (July at 6-7 cited as incident had occurred at this address to vious at”). Notwithstanding “E.H. Tr. thud the should alerted. In this which officers be bag that Reimer heard when the was thrown case, paramedics previously been at- down, “[0]h, responded, nothing.” Atlas oh residence, family at that and tacked the Id. at 6. hospital family tо attack later at the the tried that, at point, Officer Reimer testified this paramedics again. the The officers area, appeared Atlas “real Tr. nervous.” at 12. that that and 1007 Humboldt in alerted gaze activity. Atlas shifted his between particular, was Reimer, bag the and Officer “as if [Atlas] information, parked the officers Given this [Officer didn’t want to look at” the Reimer] away approached and a few houses bag. point, having Id. At that after seen Humboldt on foot. As Officer Reimer reaction, having Atlas’s nervous and after through yards of houses walked the near ques- received several evasive answers to Humboldt, standing оn a he Atlas tions, place Officer Reimer told Atlas to his contact, porch. eye the house two made pat hands on the wall for a search. E.H. Tr. eyes “got saw that Atlas’s Officer Reimer his, bag 67. He asked Atlas the police.” big, like he was to see the to which said Tr. at Atlas “no.” 13. Officer Reimer, Testimony Hr’g of Officеr Tr. of began pat Reimer then search Atlas for (Mar. 29, Magistrate Judge the at 11 Before weapons. 1995) (hereinafter at”). cited as “Tr. nylon holding also noted that Atlas was a soft house, approached Officer McDonald bag in hand. As soon as Atlas saw him and Officer Reimer told to check the dropped bag, Officer he the duffel bag. bag, touched the and Officer McDonald and Officer Reimer heard a “thud” when the thought he felt the barrel what he ground. bag hit the Tr. at 11. Atlas then shotgun. When he advised Officer Reimer away bag turned from the and walked to- shotgun bag, Atlas that there was wards one of the doors the house. began fight to resist and Officer Reimer. finally point, approached At After the two officers succeeded Officer Reimer Atlas, they bag handcuffing opened Atlas. He wanted to find out if Atlas was and loaded, the one who had made the initial retrieve found a bolt-action rifle with sawed- barrel, plus property call. Tr. at 11. he sus- off а round of ammunition pected bag may relating gang. to a local The officers have contained a items gun. suspicion fac- ran a routine warrant check on Atlas He based this on three then (1) outstanding way tors: that Atlas threw the and discovered that there was an (2) Reimer; parole down when he saw the wаrrant for a federal violation. Atlas landed; Hennepin County thud made when it and was taken to Jail (3) had, just the fact that one booked for the warrant and the firearms Officer Reimer earlier, weapon week recovered a from a violation. eluded, property party usually pursuant

2. A to a domestic arrest. retrieve call involves to a oversight past dispute obtaining police oversight no domestic Police is needed to ensure that person’s recovery personal belongings protective or violation of or- further altercation dwelling person place. from a after that has been ex- ders takes brought activity a motion in Atlas criminal be afoot and that the gun, contending suppress persons with dealing may whom he is be violated the Fourth search Amendment be- presently dangerous,” armed and the officer cause Officer Reimer lacked a reasonable ‍​​‌​‌‌​‌‌​​‌‌​​‌​​‌​‌​​​​‌‌‌​‌‌‌​​‌​‌‌‌‌​​​​​‌‌‌‍is entitled to conduсt a limited search of that suspicion engaged Atlas was in criminal person any weapons to discover activity. hearing magistrate After a before a Ohio, used to harm the officer. 8, 1995, judge May magistrate judge 1, 30, 1868, 1884-85, 88 S.Ct. 20 L.Ed.2d granting Atlas’s motion. recommended We review de novo the district regarding court’s conclusions whether a rea objected magis- to the The existed. See Ornelas v. report judge’s trate and recommendation. States, U.S. -, -, evidentiary court held an hear- district *4 1657, 1663, (1996). 134 911 L.Ed.2d Howev 6,1995, ing July adopted magis- and it on er, reviewing a findings court should “review judge’s findings. Although trate factual only of historical fact for clear error and to agreed magistrate judge’s court with the give weight due to inferences drawn from that conclusion Officer Reimer lacked a rea- by judges those facts resident and local law activity that criminal enforcement officers.” Id. afoot, court the district nevertheless denied suppress, concluding Atlas’s motion to аnalyzing In whether a “reasonable possessed Officer Reimer a reasonable belief “ existed, suspicion” totality ‘the of the cir danger. in he was imminent picture cumstances —the whole —must guilty plea Atlas then entered a conditional ” taken into account.’ United States v. Dick count, possession on in reserving the felon son, (8th Cir.) 1258, (quoting 1262 right appeal to the denial of the motion Cortez, 411, 417, States 449 U.S. suppress. part plea, parties to 690, 695, (1981)), 101 S.Ct. 66 L.Ed.2d 621 agreed that Atlas should a receive three level (8th reh’g, Cir.1995), 64 F.3d 409 aff'd reduction in acceptance the offense level for denied, U.S. -, 747, 133 cert. responsibility, pursuant to U.S.S.G. (1996). L.Ed.2d 695 We must cоnsider the however, sentencing, 3E1.1. At the court information police available to the at the time reduction, only awarded a two level because doing, of the search. weigh so “we Atlas, finding of its while incarcerated at library analysis information ‘not in terms of County awaiting sentencing, Anoka Jail by scholars, ‍​​‌​‌‌​‌‌​​‌‌​​‌​​‌​‌​​​​‌‌‌​‌‌‌​​‌​‌‌‌‌​​​​​‌‌‌‍by but as understood those facility violated rules and had ” versed in the field of law enforcement.’ Id. ongoing disruptive been an at influence Cortez, (quoting 449 101 at S.Ct. facility.3 seventy- Atlas was sentenced to 695). eight prison years months in and three release, supervised and he was ordered to agree with the pay special a assessment. $50 possessed Officer Reimer a suspi reasonable activity cion that criminal was afoot and that

II. First, dangerous.4 Atlas was armed and we Where a officer “observes note that responding the officers were ato unusual reasonably conduct which leads him in dangerous neighborhood, call a one that light to conclude in experience of his gang activity. they in The house lockdown, refusing (standard Incidents included use of U.S. at 116 S.Ct. at 1663 staff, against profanity review). verbal threats staff, However, directed at appeared control, acting interfering out of with a “certainly base its conclusion on the fact that shakedown, spitting deputy's in a face. See officer could not have known that the defendant Captain Mem. from Lieutenant R.P. Poirier to D. would have otherwise been or in this case a felon 15, 1995), (Aug. reprinted Appellee's Brehm possession.” E.H. Tr. at 68. Add. at 3. officers need not have known that Atlas was а justify Terry stop. They felon in 4. We note that the district court concluded that suspected, need stances, have based on the circum- possess Officer Reimer did ‍​​‌​‌‌​‌‌​​‌‌​​‌​​‌​‌​​​​‌‌‌​‌‌‌​​‌​‌‌‌‌​​​​​‌‌‌‍not sus- reasonable activity that criminal was afoot. We picion activity that criminal was afoot. We re- conclude that meet this standard. Sеe - Ornelas, infra. view this conclusion de novo. See

451 suspected 114 proceeding to was S.Ct. 126 L.Ed.2d 314 were Unit Willis, (8th activity subject of a hazard call. and was the ed 967 F.2d 1223 danger Cir.1992) (when presence defendant’s While the defendant leaves the scene enough ous area is not itself to raise bag upon seeing and abandons police, suspicion, proрensity “an area’s reasonable supports suspicion). Given activity something criminal that an this, toward the search of Atlas and the duffel may consider.” United States v. officer Johnson, proper. See United States v. Lender, Cir.1993); F.2d see (8th Cir.1980) (officer con Evans, States v. also United ducting valid frisk search duffel Cir.) (same), U.S. bag a suspect). few feet from the significantly, upon Most Atlas’s reaction III. seeing supports a determina- Atlas also contends that the district suspicion. tion of reasonable When Atlas awarding only erred at wide, eyes grew suggesting two level reduction for respon he was to see the officer. He sibility, reduction, rathеr than a three level immediately threw down the that was in presentenee deportment. due to Atlas’s *5 hand, began and he to walk towards one presentence deportment may Whether of of the doors the house. When Officer determining used as a factor in if a defendant Atlas, began asking questions of Reimеr he qualifies for a reduction offense level un gave appeared “real nervous” and evasive question § der 3E1.1 U.S.S.G. raises a of answers to the officer. guideline application, and we review de novo. landed, bag it made a when the Gullickson, 344, United States v. 981 F.2d . object Clearly heavy a in- loud thud. 346 ) Cir.1992 testified, just sidе. As Officer Reimer agree with the district court that earlier, he a firearm in a

week had recovered presentence deportment may is a factor that nylon bag by similar to the one discarded in applying acceptance be considered suspicions bag Atlas. His about this and its responsibility reduction offense level under were further aroused because Atlas contents § 3E1.1. This Circuit has held that a district gaze bag shifted his between may court conduct consider that is not simi if Atlas and Officer as was afraid charged lar to the conduct in order to deter bag. that Officer Reimer would look at the truly sorry mine a defendant is for the factors, Based on these and mindful that crimes for which he has been convicted. See suppression hearing at a 194, Byrd, United States v. 76 F.3d 196-97 need demonstrate that a reasonable sus (8th Cir.1996). Moreover, the conduct at picion by preponderance existed a of the conduct, may issue be nоncriminal see United evidence, Matlock, see United States v. 415 (6th Cir.1990) Cross, 66, v. 70 States n. 94 n. U.S. 996 39 (defendant’denied reduction because he re (1974), L.Ed.2d 242 we conclude provide fused to financial information to the reasonably suspected Reimer that there was court), for noncriminal conduct nonetheless weapon bag a in the and that there was “ light sincerity does ‘shed on the of a defen something illegal pos about the defendant’s ” Byrd, dant’s claims of remorse.’ 76 F.3d at See, weapon. e.g., session of the O’Neil, (quoting United States v. Bloomfield, 918-19 (1st Cir.1991)). F.2d Atlas’s behav Cir.1994) (en banc) (defendant’s extreme ner jail awaiting sentencing ior in while is a valid suspiсion), vousness contributed to reasonable § factor under 3E1.1. denied, rt. U.S. ce 1970, err, however, United States The district court did (8th Cir.) (defen Jones, it amount of reduction awarded. Under 3E1.1, appearance deceptive § ‍​​‌​‌‌​‌‌​​‌‌​​‌​​‌​‌​​​​‌‌‌​‌‌‌​​‌​‌‌‌‌​​​​​‌‌‌‍dant’s nervous an U.S.S.G. defendant’s offense level police questions swers to contributed to rеa be decreased total three levels: suspicion), responsibility, 510 two levels for ARNOLD, Judge, 3El.l(a), RICHARD S. § and one additional see U.S.S.G. responsibility, dissenting. timely acceptance of level 3El.l(b). § As its basis see U.S.S.G. hold, Magistrate Judge I would as did reduction, the dis- level only a two granting case, in this who heard the evidence fully that Atlas hаd noted trict court police lacked sufficient reasonable did not The court responsibility. accepted justify the search of the defendant. timing acceptance at all. mention Therefore, we infer porch the front of his Mr. Atlas was on ' under one level reduction awarded a up and sаw Officer own house. He looked 3El.l(a) reduction under § and a one level yard. in the front When Mr. Atlas 3El.l(b). § officer, surprised and he was dropped holding. he was The 3El.l(a) § inquiry under a thud. landed with accept defendant did or did whether the Nothing in the text responsibility. respect, agree I these cannot With commentary suggests that its guideline or enough sus- facts are to create deviate from the district facts, objective, picion, articulable based respon “partial acceptance” of guidelines for being Signifi- that a crime was committed. noted, Fifth has “al sibility. As the Circuit exactly cantly, identifies the Court never court to award a one- low[ing] the district thought officers Mr. Atlas what crime the 3El.l(a)] permits [under level reduction They committing. had no idea whether to straddle the fence district court not, a felon or he was explicitly finding whether without close cases itself, (Indeed, though gun, in is not a crime. accept responsi did or did not the defendant absolute, right to bear arms is not it finds *6 Valencia, 957 F.2d bility.” States v. United explicit protection Rights.) in the Bill of Mr. (5th Cir.1992); also see slightest move to Atlas did not make the Carroll, 735, 741 Cir. threaten or menace the officer. 1993) (same), clearly something though contained 1234, 127 L.Ed.2d 577 Unit cf. thud, heavy enough I can’t to make a see Cron, ed States that that what reason there was to believe Cir.1995) (citing approvingly, al Valencia incident, something gun. previous merits). Thus, though reaching the dis not in Reimer had discovered a which Officer may level reduc not award trict nothing 3El.l(a) gun bag, in a similar to do with partial acceptance § for tion under Mr. Atlas. responsibility. resentencing. At remand for re- We thus porch, I have a front or much of a don’t consider, sentencing, the district court must door, yard, and I front but I do have a front factors, viewing all whether after relevant suspect that I if I would look responsibility. If the answer accepted Atlas my open should door and see a offiсer yes, is entitled to a two level is then Atlas there, my pri- standing property, without 3El.l(a), § and he reduction under bag, what was in the or notice. When asked a further one level reduction be entitled to surely “nothing,” Mr. Atlas said but it was 3El.l(b). fully accept- § If he has not under literally. take this statement unreasonable to responsibility, ed thеn he is entitled Obviously something bag: was in the any reduction under 3E1.1. “nothing” was in it was sim- statement way saying ply colloquial IV. significant. nothing contained When some- doing, say I and I one asks me what am court’s conclusion affirm the district We me “nothing,” it is not reasonable to take Terry. proper under the frisk literally. doing something, I am even sеntencing, in the court erred simply that I breathing. The answer means conformity resentencing for so we remand doing anything importance. am opinion. III of this with Part emphasis on the fact that is laid Some activity.”

neighborhood “was

Ante, at 449. should remember neighborhoods

people who live such are

probably frequent victims the most of such

activity. I they do not believe that should

indiscriminately dangerous. be considered ‍​​‌​‌‌​‌‌​​‌‌​​‌​​‌​‌​​​​‌‌‌​‌‌‌​​‌​‌‌‌‌​​​​​‌‌‌‍It just as reasonable to Mr.

would be infer that

Atlas, assuming gun, he did have a had it

lawfully protection. If for his own be, upheld,

search is to be it would have to view,

my theory adopted by on the the Dis- Court,

trict the officer had reasonable (The

apprehension danger to himself.

District not find that Court did the officers objectively

had an crime.) committing Perhaps

Atlas was it be the

should law officers search endangered

citizens whenever feel

any reason. I do not think that is the law

now. Nor do I believe that the officer’s

apprehension danger in this ease was suffi-

ciently grounded satisfy stan-

dard. short, suppress I believe the motion to granted.

should have been I would therefore

reverse this conviction and remand for fur- case, proceedings.

ther On this view of the it unnecessary express opinion an me

on the issue decided the Court. *7 SCHWARTZ, Plaintiff-Appellant,

Frankie PRIDY, individually,

Tom William and as employee Depart-

an of the Missouri Revenue; Keck,

ment of Ronald indi-

vidually, employee and as an Highway Patrol,

Missouri State Defen-

dants-Appellees.

No. 95-3737. Appeals, States Court

Eighth Circuit. April

Submitted 1996. Aug.

Decided