United States v. Leslie Craig Robertson, and Connie M. Steeprow

under- none of the policy will cover surance claims, duty to has no Transamerica

lying Alaska Federal.

defend Transamerica’s other need not reach appeal since we hold Trans-

arguments on duty to defend because has no

america underlying “created” the Federal

Alaska summary judg- The district court’s

claims.

ment is

REVERSED. America, STATES of

UNITED

Plaintiff-Appellee, ROBERTSON, Craig and Connie

Leslie Defendants-Appellants. Steeprow,

M. 86-3068,

Nos. 86-3074. Appeals, Court of

Ninth Circuit.

Argued May and Submitted 1987.

Decided Nov.

OPINION IN No. 86-3068. NOONAN, Judge: Circuit Craig Leslie Robertson and Connie M. Steeprow appeal rulings suppression on evidence. stipulated Robertson had the evidence was sufficient to show that he had manufactured methamphetamine on a residence located at Street, 855 68th Springfield, Oregon and Steeprow stip- had ulated that the evidence was sufficient to attempted show she to manufacture meth- amphetamine at the same address. The stipulations are void if sup- the motions to press are appeal. reversed on We affirm Robertson, district court as to reverse Steeprow. as to I On October P.M., at about 1:45 Wisenor, Richard W. agent Drug Agency (DEA), Enforcement in Eugene, Oregon learned from an anonymous tele- phone Lyle call that operating Johnson was “a crank Street, lab” at 855 68th Spring- field, Oregon, where the informant said Wisenor, Johnson lived. a veteran of 14 years DEA, with the knew that “a crank lab” was a manufactory methamphet- amine. His informant told him that she had visited morning the lab that and that it in operation been with Johnson and present. two associates Wisenor learned from Springfield Utilities Board that Johnson was indeed a customer listed at 855 68th Street. He himself knew that prior Johnson had ar- rests for manufacturing methamphetamine Oregon. Lane City, now He learned from police state outstanding of an Oregon McCrea, Or., Robert J. Eugene, for de- against arrest warrant Johnson for this fendant-appellant Robertson. crime. issued March Diment, was, Donald Jr., D. Eugene, Or., according clerk, county for to the defendant-appellant Driving still valid. Streeprow. to Springfield, Wisenor and a state inspected officer Coffin, Thomas Eugene, Or., N. plain- house at 855 68th Street from outside tiff-appellee. and noted that the house windows were

curtained garage and the windows were They masked. also observed the house a black pick-up truck that turned out to be ANDERSON, Before registered TANG and prior drug with a NOONAN, Judges. Circuit record. years prison. to five sentenced day, was the same P.M. of 4:30 At about appeals Their appealed. other have been by seven Each accompanied Wisenor Police, Oregon State argument and decision. Springfield consolidated officers— Police, DEA —arrived They saw state warrant. on the Johnson II woman, identified later two —a the walk- on leaving the house Steeprow, A to be John- man, determined later way; a man saw son, doorway. When in argues that the seven-month Robertson inside, officers, stepped he the uniformed warrant for delay in execution of the arrest it. door and bolted slammed unconstitutional, violating the was Johnson and dis- to freeze told the woman agents under the Fourth of “the individual” rights ordered the then guns. played Amendment, Equal the Due Process and nothing door when open the and man to the Fourteenth Clauses of Protection open. They found happened they forced Amendment, Oregon con- comparable and in pad hiding a foam rubber Johnson statutory provisions. He and stitutional police he had told the kitchen. Johnson should have that the warrant been claims sick. Wise- “cooking” day and felt all been stop during traffic a routine executed of a equipment characteristic nor noted Johnson months earlier. laboratory’s a and sniffed such crank lab odor. characteristic encounters a fundamen Robertson entry, Wisenor told Shortly after standing. must A defendant tal obstacle: go if she that she free government has standing if the show even purse be- backpack and leave her would court. pressed the issue the district not them behind refused to hind. She leave Nadler, F.2d 998 v. 698 States United Wisenor wrote remained. and therefore rights (9th Cir.1983). Amendment Fourth detailing the 7-page by hand a affidavit out rights may not be vicar which are later a three hours day’s events. Some Illinois, 439 iously v. asserted. Rakas Michael by Magistrate was issued 425-26, 128, 133-34, 58 affidavit. of Wisenor’s Hogan on the basis officers when 387 Even secured, the warrant With of one blatantly pretextual arrest amake Steeprow’s and back- the house searched exigent circum that creates defendant finger- Robertson’s pack. de of a second justifying search stances laboratory equip- on the prints were found may house, defendant the second fendant’s making methamphet- ment. Formulas the arrest. challenge legality of not handwriting, in found, in her amine were Chase, 70 v. States United Steeprow’s backpack. undisputed that (9th Cir.1982). Here it prison. himself in Robert- killed Johnson only Johnson. arrest warrant named and moved indicted were son and survived, have raised he could he Had hearing, After the evidence. suppress delay in execution challenge to the findings fact Magistrate Hogan made man, the dead Standing warrant. motions. of their denial and recommended rights any John may invoke Robertson Judge hearing, District After a further had. might have son denied them. Robertson Burns James law, of state alleged As to the violations manufacturing methamphet- convicted be admissible the evidence 841(a)(1) 21 of U.S.C. in violation § amine Kovac, 795 F.2d case, v. United sentenced 2 and was U.S.C. § Cir.1986), (9th year prison with a five years in fifteen U.S. —, convict- Steeprow was special parole term. relevant, Rob Oregon (1987). If law were metham- attempting to manufacture ed of Emery, v. standing. State lacked ertson of 21 U.S.C. in violation phetamine Or.App. 597 P.2d 841(a)(1) U.S.C. and 846 and 18 § §§

B or authority employed. See United States Patterson, Cir. Robertson upon relies the district 1981) (citing Harrington, States v. finding court’s that he lived at the house to Cir.1981) (citations argue expectation that his privacy omitted)). We often confront the issue of violated execution of the arrest warrant legitimate when a “Terry stop,” for which for Johnson without a search warrant. only suspicion reasonable of criminal activi- Robertson, however, at most shared the ty required, into escalates an arrest for Johnson, residence with who held the lease required. cause is The dif- paid the rent and utilities. As it was fering standards for each reflect the differ- lawful for the to enter to arrest ing degrees of intrusion characteristic to Johnson, entry their was not excludable as each. A Terry stop involves no more than any expectation violation of of privacy on stop, interrogation and, brief under the of Robertson. United States v. proper circumstances, a brief check for Ramirez, (9th F.2d 770 1460 Cir. weapons. Beyond such a brief and narrow- 1985). guest. Johnson not Robertson’s ly intrusion, circumscribed an arrest oc- Steagald See States, v. United 451 U.S. curs, for probable which cause is required. 204, 213, 1642, 1648, 101 S.Ct. 68 L.Ed.2d City Pierce, See Kraus v. 793 F.2d of (1981). 38 Johnson was as much a resident (9th Cir.1986), 1108-09 denied, cert. as Robertson and so his residence could be U.S. —, 107 S.Ct. 94 L.Ed.2d 763 entered with a warrant for his arrest. (1987). The question ultimate whether, Payton York, v. New 573, 590, 100 445 U.S. circumstances, view of all the a reason- 63 (1980); L.Ed.2d 639 able would believe himself to be Ramirez, supra; United States v. Under Kraus, Id. In under arrest. we examined wood, (9th (en 717 F.2d 482 Cir.1983) banc), turning spotlights on defendants, denied, cert. 465 U.S. 104 S.Ct. along with the confrontation of them by Robertson’s motion weapons officers with drawn. Defendants suppress to fails. were ordered to raise their arms and drop judgment as to Robertson is AF- that, their knees. We held under these FIRMED. circumstances, a reasonable believe himself to be under arrest. 793 OPINION IN No. 86-3074. F.2d at 1109. Previously, Strickler, v. (9th Cir.1974), 490 F.2d 378 we TANG, Judge: Circuit that, police held where cars surrounded In appeal, the facts are as set occupied by vehicle the defendant forth in Robertson, United States v. No. pointed guns him, their at an arrest and not 86-3068. challenges her deten- investigatory mere detention had oc- tion and subsequent search of her back curred, and thus justified only if pack. probable cause existed. Id. at 379. We that, reasoned gunpoint, while at re- I striction of liberty of defendant’s move- Strickler, complete. ment was we could Steeprow’s Detention: no discern difference terms restriction Steeprow objects detention, to her con- liberty holding between defendant at tending that it was not a Terry stop, but an gunpoint handcuffing pro- him and arrest for probable which cause was lack- nouncing him to be under arrest. Similar- ing. agree We with this contention. ly, in United States v. Ramos-Zaragosa, (9th Cir.1975), 516 F.2d 144 we held A holding that the gunpoint defendants at Whether an arrest has occurred de- under circumstances suggesting fears pends on all surrounding circumstanc- for their safety, amounted to an es, including the extent to liberty which purposes arrest of the Fourth Amend- movement is curtailed and type of force ment.

781 attempt ed, made no the officers de- but the officers’ conclude armed, thereby strongly if she was discern gunpoint at tention slightest cause. had not suggesting that required Compare to ten was armed. seven that she indication was confronted gun Greene, his aimed v. officers, 783 F.2d States of whom United one freeze, detained nose, Cir.) defendants (9th (police told her her knew at 1368 fifteen perhaps at least five them), her for armed, frisked liberty of her restriction minutes. this encircle- upon complete movement suggests that Nothing in the record orders at gave her officers who ment necessary to ensure display of force was Kraus, at 1108-09 F.2d gunpoint. stop. request compliance with her by officers (encirclement of defendants Patterson, at 633-34 Compare F.2d spotlight); United drawn; guns with motor run- (defendant in seat with driver’s 1303, 1305 Coades, v. defendant); arrest of other ning at scene of stop and Cir.1977) defendant (ordering (defendant kept Bautista, 684 F.2d at ar- constituted gunpoint self at prostrate head, if was think- turning “as he pacing, supra at rest); Ramos-Zaragosa, running”). See United States ing about Strick gunpoint); (holding defendants Cir.1977), Thompson, (surrounding defendant ler, at 380 denied, rt. ce 1466, cruisers, holding gun- in car with (1978). Accordingly, States, (citing Henry v. point) “Terry stop”— asserted purpose of (1959)). 168, 4 L.Ed.2d 134 98, 80 S.Ct. U.S. investigate to without the officers allow to “choose between not free to Steeprow was violence, see Adams v. flight or fear of continuing the encounter.” terminating or 143, 1921, 32 Williams, 92 407 U.S. S.Ct. Johnson, F.2d 626 v. United States See (1972) not served 612 L.Ed.2d — was 537, aff'd, 457 Cir.1980), U.S. (9th 753, 755 reason necessity, No imposed. intrusion (1982). We 202 73 L.Ed.2d 102 S.Ct. Steep- stopping for purpose is shown nor holdings such a acknowledge previous on arrest warrant to serve the in order row exces- restriction, and not if brief complete Johnson. circumstances, may consti- under the sive case recently decided do not find We an arrest. stop” and not “Terry a valid tute to the dissent’s persuasive as of Greene Bautista, 684 v. See, e.g., United “Terry stop” oc- a mere denied, contention that Cir.1982), cert. 1286, 1289(9th F.2d that, in this reasons The dissent curred. 75 103 S.Ct. 1367-68, Greene, case, in 783 F.2d Patterson, at 632-34. (1983); an not constitute does use of force such given the here case is not But such justify the circumstances where the arrest of the restriction nature excessive safety.1 personal for their agents’ fears arm- not the circumstances. weapons any ... to remove in order support rested Otherwise, of its rea cites in dissent further The safety might well be officer’s Wiga, soning v. frustrated. endangered, the arrest itself Cir.1981), 102 S.Ct. 456 U.S. addition, for the entirely (1982), proposition is reasonable In for the any seize arresting to search for officer concealment prevent to its in order evidence of one engaged lawful arrest in the officers or destruction. in interest home have an in a motor California, 395 U.S. v. Chimel occupants vehicle do seeing that other generally 2034, 2040, 23 L.Ed.2d danger execu- them impose while T.L.O., Jersey v. New ting the arrest. J., (1985) (Brennan, 751-52, 83 L.Ed.2d sweep" "protective of Wiga, we sustained In dissenting part), in concurring part and arrest infra to a lawful home as incident motor n. 3. defendant. ar- a lawful incident is no "search There is a search to arrest incident A Steeprow. relating to the detention excep- rest" issue the well-delineated one within falls Steep- the detention question is whether requirement. to the warrant tions period several minutes gunpoint for a made, row at it is reasonable an arrest When place. in the first arrest to an amounted ar- arresting search the officer Coades, supra. recogniz- See also While fact is the officers’ omission engage in a ing specific that the officers had no infor- patdown or frisk in order to search for mation and dan- weapons. armed The officers in Greene conduct- gerous, the dissent nevertheless declares frisk, ed such manifesting their fears of that “sudden violence reasonably be physical danger. See 783 F.2d at 1367. anticipated.” distinguishes The dissent Taylor, 708; See also Coades, 716 F.2d at Strickler and Ramos-Zaragosa on the ba- 549 F.2d at 1305. sis that those cases stops “involved of sus- pected by police pointing guns vehicles B. adjacent from their cars.” The dissent Having held that gun- the detention at suggests that Greene is the more vital point of Steeprow arrest, amounted to an authority supplanted and has Strickler question next probable whether

Ramos-Zaragosa.2 cause existed for that required arrest as ground holding for our in Greene the Fourth Amendment. was that the spe- officers that case had cific knowledge that the defendants were probable hold that cause for armed. See 783 F.2d at 1368. On this her arrest was absent. For all that was basis, the upheld Court stop officers’ then officers, known to the Steeprow was legitimate defendants as a Terry stop. Id. an innocent Lacking visitor. from both the words, Greene, other officers were arrest warrant for Johnson and the search confronted with justifying circumstances premises slightest was the fears for safety although not indication that was involved in amounting justi- cause so as to activity. criminal Her presence mere on fy justified an arrest —which temporary premises, more, support without cannot restriction of defendant’s freedom of move- her under these circumstances. ment. See also United States Taylor, Compare Summers, Michigan v. Cir.1983) (police 692, 701, knew armed dangerous); defendant (1981) (warrant justifying search of Coades, supra (police knew defendants justified defendant’s house detention of his flight armed and in from robbery bank person on premises), Greene, 783 F.2d at attempt gun fight). Here, and there is no (pistol 1368 room), in defendants' motel indication that the officers were confronted 1185, 2923, 106 S.Ct. with circumstances such as those in (1986), Taylor, supra (po Greene, Taylor, and Certainly Coades. lice knew danger defendants armed and slamming provided ous), the door cause Patterson, 648 F.2d for belief that might violence erupt 625, in (9th Cir.1981) (defendant 628 in car But, house. Greene, unlike Taylor, engine and with running; gun officers knew Coades, the record in the case seat), at bench is Coades, (po front supra and any bare of indication that was lice knew flight defendants armed and in dangerous. armed or Underscoring this from bank robbery gun fight), attempt and disagree We likewise with gossamer the dissent's re- what that observation involve Buffington, liance on United States v. seizures of defendants in automobiles rather (9th Cir.1987), 1292 in which we held that the than outside houses. distinction is This one gunpoint detention at prone of defendants in a a without person difference. We fail to see how a position was Buffing- not an arrest. Crucial to house, accosted outside of a absent other (1) ton were: one of the defendants’ known circumstances, likely pose more to a 1300, history," (2) "violent criminal id. at and threat to officers than one an inside automobile. suspicious activity “casing" defendants’ Indeed, opposite may true. See United be bank. No appear similar circumstances here. Russell, States v. 841 Cir. history. had no known criminal Her 1976) (officers justified displaying weapons activity only walking path consisted down camper where defendants in with curtained and leading from activity a house in which criminal night; "perfect screened windows at conditions suspected. was ambush") J., (Wright, concurring). for an 2. The attempt distinguish dissent makes no to Ramos-Zaragosa beyond Strickler and the some-

783 house, and one whom (mere lived in prox- 380 Strickler, F.2d at 490 with cause to believe was probable officers cocaine where residence to a imity Be- activity. id. in criminal See engaging in some participation and being delivered to Johnson and proximity activity) yond mere observing driving and ambiguous identify no house, government can 144 F.2d at 516 Ramos-Zaragosa, prudent would lead a cause which probable de- imprecise with vehicle (conformity of had com- to informant, informant’s believe where scription of committing a criminal of- or was demonstrated, justify mitted did not reliability pro- fense, her York, thus that constitutional 392 Newv. arrest). also Sibron 1889, 1902-03, upon.3 could be intruded See Beck 62-63, tection 88 S.Ct. U.S. Ohio, number of v. U.S. (1968) (talking to a (1964); 225-26, Henry, period of over addicts narcotics known necessity 171. No 80 S.Ct. at proba- U.S. at establish to insufficient eight hours Steeprow in to Kraus, stopping order arrest); is shown cause ble upon Johnson. arrest warrant car from serve departing (seeing rapidly fleeing on seen after robber lot parking II. to estab- lot insufficient parking into foot of car own- cause for probable lish Back Pack Search of the officers had ers). undisputed that It is in this authorized The warrant case ac- that criminal believe probable cause a search But where house. in the tivity was afoot Street, 68th premises known person is of a for the seizure the standard curtilage ap- Oregon and Springfield sup- cause, be seizure must and vehicles. purtences [sic] particularized cause by probable ported dissent would government and the person. Ybarra v. respect with particularity require- that the hold have us n. Illinois, 93 & Amendment4 satis- ment of the Fourth (1979) L.Ed.2d 238 n. 343 & “appurtenc- reference to by the fied either con- place cannot be (warrant search a “curtilage.” Steeprow contends es” or to every indi- search of to authorize strued read to describe warrant cannot that the It is place). insufficient in that vidual search of it thus that the backpack, her proximity to mere defendant’s point to the in violation of awas warrantless suspected of criminal independently others govern- reject the Amendment. We Fourth Ybarra, 444 activity. See reading expansive dissent’s ment’s and the person who walked Every at 343. Steeprow. agree with of the warrant and house on Johnson’s premises onto The search possessed constitutional October the violated search unreasonable search against an unreasonable protection Amendment. Fourth protec- That seizure. an unreasonable or warrantless recognizing that some While from the distinct separate and was tion reasonableness do not violate searches possessed protection Amendment Fourth difficulty in con- have no requirement,5 we Robertson, of whom both by Johnson nothing left insures that is general searches and an entire- affairs is not this state of We realize 3. executing See officer. officials. the discretion of happy enforcement to ly one for law 196, 192, States, poorly surprising marked such v. United is not that Marron It 76, (1927); transgressed. Our sometimes are 72 L.Ed. boundaries task, S.Ct. Cir.1982). however, markings (9th preserve Cardwell, is to 680 F.2d by pretend- do this best we cannot can. ing not do exist. beyond interest special governmental [S]ome 5. Ramos-Zaragosa, supra 145. merely apprehend lawbreakers to the need exception categorical justify necessary requires that war- The Fourth Amendment part, requirement. For the most the warrant "par- supported by probable cause be rants ticularly to over- governmental needs sufficient searched, special be place to describ[e] "exi- requirement flow from ride the warrant particu- things be seized." or is, press that of time from the gency against protecting requirement larity is aimed —that eluding that the warrantless search in edge this of Steeprow’s criminal activity was case was unreasonable. The Supreme that she leaving a house where the Court and other courts have repeatedly rec- officers had cause to believe that ognized that containers backpacks such as activity criminal was afoot. The officers are so closely associated with one’s had no indication per- was a that a search of them must supported be son with a criminal history or might who by a warrant which particular- satisfies the inclined to assault them. Ybarra, See ity requirement, by or one of the excep- U.S. at 100 S.Ct. at 343-44. In this tions to the requirement. warrant In this sense, Steeprow is indistinguishable from case, particularity absent, and no ex- Ybarra, defendants in Branch, Spor- ception requirement warrant leder. The officers lacked the benefit of Ybarra, available. 444 U.S. at 100 either a warrant or one of the exceptions to (search S.Ct. at 343 of defendant and sei- the warrant requirement to support a zure pocket contents of justified not by search of her. warrant authorizing searches of tavern and We government’s find the reliance on bartender); Sanders, Arkansas v. 442 U.S. Williams, States v. S.Ct. Cir.1982),misplaced. In case, (warrantless (1979) search of suitcase we held that a search authorizing taken justified from car not “automobile the search “premises” supported the exception” to warrant requirement); Unit- search of a lunch box located under work Sporleder, ed States v. 813 bench in a cabin. Williams easily distin- (10th Cir.1980)(search of pock- defendant’s guishable. We doubt a lunchbox sit- justified ets not by search warrant autho- ting on the floor of one's residence can be rizing search of “premises”); United said to equivalent be the bag a shoulder Branch, States v. 178 App.D.C. 99, 545 carried on one’s purpose F.2d 182 (D.C.Cir.1976) (search of evaluating privacy concerns. The lunchbox bag shoulder not authorized search war- in Williams was in a free and stationary rant apartment). See also United position on premises at the time the Graham, States v. 1111, 1114 executed; warrant was it was not in Cir.) (purses or bags shoulder appended are possession immediate body and thus included within the defendants. In Steeprow, the defendant concept person), of one’s 450 had in her possession, and 68 L.Ed.2d 231 refused to surrender it. It was a Branch, In the D.C. Circuit exam- her person in which possessed she a rea- ined the constitutionality of the search of expectation sonable of privacy. In that bag shoulder defendant, who arrived on the backpack sense is not remotely similar premises after the begun. search had to a lunchbox left resting under a work In holding that the search was unconstitu- bench Further, cabin. the officers in tional, the court stated: Williams did know of the existence of he was apparently a visitor; mere his the lunchbox before swearing out the affi- relationship to premises was not davit in support of the search known, but was at best the subject of “inadvertently discovering]” it in search- speculation. ing the case, cabin. however, this 545 F.2d at 178. See also United States v. officers did anything but inadvertently dis- Micheli, 429, (1st Cir.1973) cover the backpack executing in the search (transient visitor expectation retains pri- of They warrant. full knew well that Steep- vacy in belongings on premises to be row had a backpack possession in her that searched) (dictum). Similarly, in the case she refused to relinquish. Nevertheless, bench, at the extent of the officers’ knowl- failed to describe its existence in the obtaining makes a warrant impossible either concurring (em- dissenting part) in in infeasible, hopelessly or [citations] phasis original). T.L.O., Jersey

New v. 105 S.Ct. (1985) (Brennan, J., L.Ed.2d 720 a rule the such violates apparent the more Certainly, all It is thus affidavit. by Supreme Court enunciated the principles in- have could officers although that, the Chadwick, 433 U.S. v. re- particularity the conformity with sured 2476, 2484, 53 L.Ed.2d 538 12, 97 S.Ct. knowledge of of their because quirement Sanders, 442 U.S. at (1977) and so. Com- to do they failed backpack, the Chadwick, the held 2592. In Court at S.Ct. 293. Williams, at supra pare footlocker, search of a that the warrantless distinctions, Notwithstanding these clear probable agents had government in which Williams extend would government the contraband, vio- there cause to believe such of a container presence that the hold The Court Fourth Amendment. lated the the “curti- within as reasoned: in a search described premises lage” of dou- effects inside a personal By placing to the subject them would footlocker, warrant mani- respondents ble-locked an exten- Such in the warrant. that the contents expectation authorized fested legit- for the certainly public ill examina- bode free from remain sion would of who locks privacy of one tion. No less than expectations imate intruders, against one home located within of his to be doors enough unfortunate possessions personal his safeguards de- who premises of physical boundaries protection manner is due in this have chosen and who in an affidavit scribed Clause. Warrant Amendment the Fourth carrying by expectations their protect unrea- exigency, it was being no There to them such personal are which containers to conduct for the Government sonable bookbags, and shoul- handbags, purses, as safeguards ju- without the this search only with a armed bags. Officers der provides. dicial justify could premises for search warrant luggage emphasized that The Court Id. con- and all any warrantless searches personal ef- repository aas intended physi- persons within carried tainers are not contents fects, luggage and that warrant, whether in the described cal area Sanders, 442 also public view. See open to the search of existed probable cause (purpose at 2593 at S.Ct. U.S. situation, or not. such the containers per- repository luggage is to serve argue merely government would rea- Moreover, items). the Court sonal within was located container since had soned, agents detained once in the area described “curtilage” of the control, their put footlocker necessary probable cause no danger that the slightest not the there was independent of the the search support been have could or its contents footlocker of the area for the search cause be ob- could a warrant before removed Under warrant. in the described at at at 433 U.S. tained. Id. lug- rationale, searches government’s Sanders, also briefcases, containers and other gage, container (once police have at 2593 for which the area within are located which control, exigency of their securely within justi- thus would is authorized a search exists). case longer no mobility suspicion what- in the absence fied identical presents considerations bench in which anything they contain soever Steep- and Sanders. those in Chadwick interest legitimate police have priva- legitimate safeguard a row chose Belton, 453 York v. viewing. See New items shielding her cy interest luggage. Once piece in a J., (White, dissenting). (1981) luggage, there detained Brock, 667 F.2d have Compare danger that slightest Cir.1982) (canister of me- or otherwise 1311, 1322 the contents any of removed destroy the indi- beeper danger she would posed a thylamine contained safety. the officers’ in area or threaten its whereabouts contents to officers cated anof how the search see fail to U.S. thus searched), to be justi- could be so item L.Ed.2d 493 grounds fied under of exigency leagues, of I believe that the court has not generally which characterize the well-delin- properly resolved the conflict between the exceptions require- eated to the warrant security against police ment. and appropriate enforcement of the law. Ybarra, against backdrop Viewed Steeprow: Detention When the Sanders, Chadwick, Branch, Sporled- and agents were approaching the house to er, lunchbox, Williams —which involved a serve the arrest warrant on Lyle Johnson, possession defendant, not in the of a left Steeprow was emerging from the house. a under bench—is at remotely appo- best She was about ten door, feet from the front site. If the officers had cause to which open by was held apparent- someone believe that the backpack ly contained contra- following Simms, her. Donald a DEA band, they should have obtained a agent, her, shouted “Police, at Freeze.” backpack described the and which He field, the middle of a about would have authorized a search of its con- thirty away; pointed feet he gun a at her. Hicks, tents. See Arizona v. U.S. agent posted Another near the garage also —, gun directed his stopped. her. She Absent that the search Within minute most of the pushed violated the Fourth her, Amendment. past door, knocked and arrested Ybarra, 345; U.S. at 100 S.Ct. at Johnson and Robertson. The elapsed, time Sanders, 2594; U.S. at 99 S.Ct. at according Steeprow herself, “maybe Chadwick, 2486; three, 97 S.Ct. at minutes,” four “five, or seven min- Sporleder, 813; Branch, 635 F.2d at maybe not even long. hap- It utes— F.2d at 178. Evidence obtained as a result pened fast.” At point only agent should suppressed. have been still covering Steeprow ceased his cover- age. point Steeprow At that was told she The denial of sup- motion to if leave she left her and press reversed, vacated, her conviction purse. Was the three to seven minute cause remanded for pro- further detention of a Terry stop? ceedings not opinion. inconsistent with this The desire of mitigate courts to NOONAN, Judge, Circuit dissenting: harsh exclusionary rule that applies if a detention is an arrest has led to the inven- No one wants the using guns to tion of terma of art: the Terry stop. An people arrest on a hunch. No one wants speech arrest in normal is an action of the police to very personal things stopping seizing. or A Terry stop is an without a warrant or arrest. No one wants speech, in normal but it does not go the guilty to free on technicalities or amount to an arrest meaning within the violation etiquette. rules of the Fourth investiga- Amendment. It is an These sometimes conflicting aspirations tory detention. have constitutional right dimensions. The people “against to be secure unrea- In Steeprow’s case two the normal seizures, searches sonable shall not be Terry stop criteria for a undeniably were violated, issue, and no Warrants shall First, but met. the detention was brief. Sec- upon probable cause, ond, ... particularly grounds there were reasonable describing place searched, to be suspicion leaving smelly someone things or to be seized.” United crank participant lab or customer. Constitution, court, however, Amendment I. At the The focuses on the use of a same time obligation President is gun single gun that was pointed at —the to “faithfully execute” the laws of the for no more than three four Constitution, States. United States Why minutes. does visibility and di- Article II. Both the judi- executive and the gun rection this convert the Terry stop cial obligation branches recog- have the something into Because, might worse? nize these answered, constitutional commands. gun a drawn is more threat- case, instant respect with all to my ening gun col- in a holster. than But wheth- gun patted as it rests in an offi- was police er the is detained the while searched the person pointed person, at a the they cer’s belt or house. When found narcotics in the brought basement, the is to a halt because of authori- they then searched him and ty by person asserted the officers. The found pocket. heroin in his Michigan The “seized”—the constitutional term —wheth- suppressed courts the heroin as evidence. gun pointed er the or not. Supreme The Court reversed. Justice Ste- vens wrote: seems, then, everything It should Although special danger no po- to the made on

not be to turn whether the officer suggested lice is by the evidence in gun this ready. particular, has the at the record, the execution of a gun dispositive should not be the factor search for narcotics is the kind of under the circumstances of this case. trans- The may give action that rise seeking to sudden were to serve an vio- lence or frantic efforts fugitive. to conceal or warrant on a Their business de- stroy evidence. The risk of to catch harm to They Johnson. did not both want his police occupants suspected accomplice is minimized to make maneu- if the officers routinely advantage unques- exercise advantage vers to his or to take tioned command of the pre-occupation of their situation. Cf. 2 away. and run Lafave, Search and W. Seizure They pp. not know whether or not she § (1978). 150-151 They armed. did have reason to think she was enterprise the criminal Summers, Michigan 702- involving police narcotics. The did what 06, 2587, 2594-96, 69 L.Ed.2d 340 thing was the sensible to do: for at the they most Steeprow seven minutes secured That turned out to be a visitor proportionate with force to the circum- occupant not an is of course not a relevant stances. distinction; thirty away, Agent feet Simms My view conflicts with that of status, the court could not know her exact but he on both the facts and the law. had to act. The distinction can be made exactly was not “confronted seven to being our case the warrant served ten support officers.” The law does not fugitive was for the arrest of a not for the proposition that the officers would have premises. search of the That distinction justified in displaying only been force if may escape enable the court to the force of knowledge special danger their had been Michigan v. Summers controlling au- Michigan v. Sum- shown on the record. thority. justify The distinction does not mers, 2587, disregard reasoning of the Court’s as to The law does the circumstances in which detention is rea- support proposition pur- that the “Unquestioned sonable. command” was poses preventing flight and violence thought what the Court in cir- reasonable appropriately stop. were not served Apparent- cumstances identical with ours. suggestion of the court ly disagrees. that the failure our court to frisk undercuts the officers’ require The Fourth Amendment does not original apprehensions is psychologically perfect police requires It reason- behavior. large unfounded: when felons are at rea- police Although judges able behavior. precautions sonable will take police who now condemn on were not captured. then relax when are scene, handling judges’ way it— suggestion court’s perilously comes near to apparently by simple order to verbal Terry stop creating a new rule of law: a is Steeprow may, perhaps, not have been good only frisking if a follows. unreasonable. But did un- what Michigan v. Summers comes close to pressures der the of the moment was being absolutely equally They decisive here. It deals reasonable. to a intruded exactly with detention of a A Steeprow. minimum on substantial Steeprow’s position leaving space separated agents. a house that from her about to They “prone They were enter. The did not make her out.” search, ing bag a a person. They took does not

did not later touch her prevent being it from reason- seen under another precaution the minimal that was perspective safety person. of the as distinct from the ably consistent with the Branch, in True, premises, agents, their need to secure the 177, 182 (D.C.Cir.1976), a visitor Steeprow and their need to check out. entered an apartment after a warrant had been issued any police cries out that Common sense for its search and the court held that away let from officer who walk bag wearing shoulder he was was not cov- doing his the house would not have been (how ered the warrant could it have quarrels the details duty. The court with been?). Appeals The Court of for the Dis- procedure followed. Men embarked explicitly trict of said Columbia inherently dangerous enterprise on the bag some circumstances a shoulder capturing not a wanted felon should be prem- be found to be the ambit of a within Steep- judged narrowly. so The seizure of Branch warrant; supports ises search non- row was reasonable. suppression here. Backpack. Steep- The Search requires The Fourth Amendment that a backpack purse properly row’s were “particularly” place “the warrant describe seized after had the indi- Wisenor observed searched,” person things to be and “the or point he cia of a crank lab. At that had place seized.” The be searched probable cause to these con- believe curtilage. here was house The contraband, carried and the circum- tainers things to be seized were formulas for mak- holding exigent, requiring stances were ing methamphetamine. backpack The was magistrate of these articles until a could be ground. backpack on the came within found and a search warrant secured. the warrant. LaFave on and Sei- Search Licata, United States v. 542- zure (1987) 2, Examining the back- Cir.1985). pack seizing Steeprow. was not search, As to the later a with Steeprow’s objection To sustain the court backpack, equates the court the back- things: engages legal does two it fiction pack pocket pair pants on a with on a and it converts what at worst an over- was person. equation, With the aid of this sight important into the invasion of an authority supporting court finds decisive First, right. fiction, Illinois, backpack as to the Ybarra v. position. its part not it when 338, 341, 62 L.Ed.2d 238 say being examined. To she was searched equation justified, is not backpack Ybarra involved when her was searched shows authority apposite. is not order; legal ingenuity high of a but it is person’s a search of a clothes. Clothes the kind of fiction often induces dis- adage it, man; only, as the has make the gust ordinary person with the law. To the way person presents clothes are of a herself; per- was not searched when her they enough himself or are close per- to the to be assimilated son was untouched. bookbag,

son. A or whatever Second, if it is evident that may sentiments attach to it and however anticipate had this court’s been able to lugged youthful often it is around they specified mind the back- have owner, distinguishable. pack they when asked for the warrant. True, bag backpack if purse They specified a shoulder or has been could have good, thought great held to fall within a warrant for the search of it. What public purpose by disciplin- of a a case where the court what is served scope” ing prosecutor agents’ lack of refused to “narrow the of the war- for the detail? clairvoyance rant and admitted all the evidence or attention obtained. Graham, United States v. magis- drug agents, Trained enforcement trate, Cir.1981), judge have all and a federal district I thought this was reasonable. too that, perspective uphold- But reasonable. Protection of a under the think require or does not of citizens liberty basic fiction, legal of a new the invention

justify rule, legal of a new

the invention we defendant because

freeing guilty of a more ex- could have been

think

act. affirm convic-

I vote to

tion. 3-7, INTERNATIONAL WOOD

LOCAL AMERICA, OF

WORKERS

Plaintiff-Appellant, COMPANY, PRODUCTS

DAW FOREST

Defendant-Appellee.

No. 86-3891. Appeals,

United States Court

Ninth Circuit. 2, 1987.

Argued and Submitted March

Decided Nov.

Case Details

Case Name: United States v. Leslie Craig Robertson, and Connie M. Steeprow

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 30, 1987

Citation: 833 F.2d 777

Docket Number: 86-3068, 86-3074

Court Abbreviation: 9th Cir.