UNITED STATES of America, Plaintiff-Appellee, v. Mario Joaquin VITE-ESPINOZA; Jose Martinez-Rivera (02–5492), Defendants-Appellants.
Nos. 02-5491, 02-5492.
United States Court of Appeals, Sixth Circuit.
Argued: Oct. 15, 2002. Decided and Filed: Aug. 25, 2003.
342 F.3d 462
V. CONCLUSION
For the reasons stated above, we REVERSE the district court‘s dismissal of Marks‘s state-law claims to the extent that they are not related to the plan, and we REMAND for further proceedings in the district court Marks‘s state-law breach of contract claim and, insofar as Marks alleges that Newcourt induced Marks to accept employment by deceiving him about his duties, his state-law claim for fraud and misrepresentation. Although the district court erred by including McFarlane‘s electronic mail in the administrative record, we AFFIRM the district court‘s judgment on all other grounds.
Sumter L. Camp (argued and briefed), Federal Public Defender‘s Office, Nashville, TN, Paul J. Bruno (argued and briefed), Bruno, Haymaker & Heroux, Nashville, TN, for Defendants-Appellants.
Before: BOGGS, SUHRHEINRICH, and CLAY, Circuit Judges.
BOGGS, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. CLAY, J. (pp. 471-475), delivered a separate opinion concurring in the outcome reached by the majority.
OPINION
BOGGS, Circuit Judge.
Defendants Mario Joaquin Vite-Espinoza and Jose Martinez-Rivera appeal the district court‘s denial of their motion to suppress, on Fourth Amendment grounds, firearms found in their possession and statements they made as they were taken into custody. A joint federal, state, and local police task force investigating the counterfeiting of immigration and identifi
I
On July 5, 2001, following up on intelligence that the house was being used to produce and sell counterfeit immigration documents and social security cards, as well as deal large quantities of marijuana, the United States Secret Service retrieved trash left for collection outside the house. In the trash were found “stems, seeds and remnants of marijuana” and Mexican birth certificates. On this evidence, a federal search warrant was issued for the house. Prior to execution of the warrant, the law enforcement agents invоlved, about fifteen officers from the INS, the Secret Service, and Tennessee state and local police agencies, agreed to question all persons found on the premises regarding their immigration status, on the basis that persons found in a location where counterfeit immigration documents are dealt could reasonably be suspected of being illegal aliens, and to perform Terry stops-and-frisks, on the basis that persons involved in drug deals are frequently armed and dangerous.
The police raided the house and executed the search warrant that same day. Four men and a woman, among them the defendants, were found in the back yard of the house and immediately handcuffed and patted down. The pat-down of Martinez-Rivera uncovered a handgun in his waistband. Vite-Espinoza‘s search uncovered no weapons, but the officers took documents and a billfold from his pocket. Upon questioning, both Vite-Espinoza and Martinez-Rivera admitted to being in the country illegally. The officers also found another handgun lying on the ground, which another of the men present admitted dropping. At this point, the officers decided to search the vehicles in the driveway of the house. Under the floorboard of a truck owned by Vite-Espinoza, the police discovered another handgun, which Vite-Espinoza admitted to owning. The defendants were taken into custody by the INS. James Grant, a Tennessee Highway Patrol officer assigned to the raid, determined that Vite-Espinoza‘s truck was leased and that other vehicles on the premises also registered to Vite-Espinoza had title and licensing irregularities. Grant impounded the truck, took an inventory, and returned it to the lien-holder. The search of the house itself uncovered “several identification documents, [a] Polaroid camera, a typewriter, . . . large quantities of ammunition, . . . blank Mexican birth certificates,” and more marijuana remnants, but no bulk marijuana.
On July 25, 2001, the defendants were indicted for being illegal aliens in possession of a firearm, in violation of
II
The generally applicable principles of search and seizure jurisprudence are well-known and settled. The United States Constitution bars “unreasonable sеarches and seizures.”
The exclusionary rule bars the admission of items seized during an unconstitutional search, Weeks v. United States, 232 U.S. 383, 398 (1914), and of testimony concerning knowledge acquired during such a search, Silverman v. United States, 365 U.S. 505, 509 (1961). However, “evidence may be admitted if the government can show that the evidence inevitably would have been obtained from lawful sources in the absence of the illegal discovery.” United States v. Leake, 95 F.3d 409, 412 (6th Cir.1996) (citing Nix v. Williams, 467 U.S. 431, 444 (1984)). “The burden of proof is on the government to establish that the tainted evidence ‘would have been discovered by lawful means.‘” Leake, 95 F.3d at 412 (quoting Nix, 467 U.S. at 444). “[T]he government can meet its burden of showing that the tainted evidence inevitably would have been discovered through lawful means ‘by establishing that, by following routine procedures, the police would inevitably have uncovered the evidence.‘”
However, as straightforward as the Terry standard is, its application to the facts of a given case remains, outside the limits of a few bright-line rules, to a considerable degree indeterminate. The court faces a question of first impression unless there is precedent finding reasonable suspicion in a factual situation that in every relevant respect was no more suspicious, or finding no such suspicion in a factual situation that in every relevant respect was no less suspicious. See Illinois v. Gates, 462 U.S. 213, 238 n. 11 (1983) (stating that in the course of adjudicating the existence of reasonable suspicion, “one determination will seldom be a useful ‘precedent’ for another“). Given the near-infinite variety of factual circumstances in which Terry stops-and-frisks occur, it is unsurprising that neither party can present such precedent, but that both must instead rely on cases which are merely similar in one or more particular aspects.
In this context, we turn to the facts of the present case. As the police entered the premises, they had reason to suspect, or in some instances even probable cause to believe, that the house was used as a factory of counterfeit immigration and identification documents for Mexican nationals and for the trafficking of marijuana. Furthermore, rational inferences warranted reasonable suspicions that those encountered on the premises would either be counterfeiters themselves or their illegal alien customers, because legal residents have of course little need for counterfeit documents, or that they would be armed and dangerous, because drug traffickers tend to be so. Indeed, the court below made a finding of fact to that effect. At this point the police encountered the defendants, both of whom appeared to be of Hispanic ethnicity, in the back yard.
The court below and the United States rely primarily on United States v. Bohannon, 225 F.3d 615 (6th Cir.2000). In Bohannon, while law enforcement agents were executing a search warrant on a residence suspected of being used as a methamphetamine laboratory, two men approached the residence. Id. at 616. The law enforcement agents seized and searched the men before they entered the residence, turning up incriminating evidence. Ibid. We held that detention of those entering such a premise was constitutional. Id. at 617 (expanding on Michigan v. Summers, 452 U.S. 692, 705 (1981) (permitting detention of occupants of a premise being searched subject to a warrant)). See also Baker v. Monroe Township, 50 F.3d 1186, 1192 (3d Cir.1995). We reasoned that most of the rationales underlying Summers, prevention of flight if incriminating evidence is found and minimization of risk of harm to the officers, were also present in the circumstances of Bohannon, even if the third rationale of Summers that the occupants would assist in the orderly completion of the search was not. Bohannon, 225 F.3d at 616-17. See also Leveto v. Lapina, 258 F.3d 156, 167 n. 5 (3d Cir.2001) (citing Bohannon for the proposition that “[a] detention may be reasonable even if fеwer than all of [Summers] law enforcement interests are present“); Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir.2002) (holding “that officers act within their Summers powers when they detain an individual who approaches a searched property, pauses at the property line, and flees when the officers instruct him to get down” because while “this reaches beyond Summers‘s ‘occupants’ language, it is consistent with the policies that Summers has
The defendants point out that the case at bar differs in that they were not entering or leaving the searched residencе but were merely present in its backyard. Indeed, this circumstance does render the inference of involvement with the criminal activity inside the house weaker, but only slightly so. Innocent individuals are not significantly more likely to while away their hours in the backyard of a drug and counterfeit document distribution facility than they are to enter or to leave it. And in so far as their presence raises a reasonable suspicion of involvement in criminal activity, the rationales found sufficient in Bohannon, prevention of flight and harm to officers conducting the search, are equally applicable here.
The defendants cite numerous cases for the proposition that the additional suspicious circumstances are insufficient tо justify a Terry stop-and-frisk. Merely observing a suspect conversing with known narcotics addicts by itself is insufficient to create reasonable suspicion. Sibron v. New York, 392 U.S. 40, 63-64 (1968). “[M]ere propinquity to others independently suspected of criminal activity does not, without more,” give rise to a reasonable belief that the suspect is armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 91-93 (1979). “[W]hile the fact of companionship did not of itself justify [a] frisk . . . it is not irrelevant to the mix that should be considered in deter
We hold that the combination of the close factual resemblance to Bohannon and the additional suspicious circumstances, in particular the defendants’ presence without apparent lawful purpose outside the facility and their appearance, was sufficient to create reasonable, articulable suspicion. Therefore the police officers were permitted to stop and frisk the defendants and the handgun found on Martinez-Rivera was admissiblе, as the court below
We do not here decide whether the police were justified in handcuffing the defendants and forcing them onto the ground or in taking the documents and billfold from Vite-Espinoza‘s pocket. However, as both the defendants very shortly thereafter admitted to being illegal aliens, permitting the INS to take them into custody under
III
The district court held that Vite-Espinoza‘s truck was not covered by the search warrant, but that the handgun in it would inevitably have been discovered when Grant, a Tennessee Highway Patrol officer, impounded and inventoried the truck.1 Grant testified that he routinely impounded and inventoried cars following arrests. Such impoundments are authorized by Tennessee statute. “A police department may take into custody any motor vehicle found abandoned, immobile, or unattended on public or private property.”
Vite-Espinoza also raises an argument of somewhat greater merit under the Tennessee constitution. Tennessee case law has restricted the use of the unattended motor vehicle statute for evidence gathering purposes:
[I]f the circumstances that bring the automobile to the attention of the police in the first place are such that the driver, even though arrested, is able to make his or her own arrangements for the custody of the vehicle, or if the vehicle can be parked and locked without obstructing traffic or endangering the public, the police should permit the action to be taken rather than impound the car against the will of the driver and then search it. Just cause to arrest the driver is not, alone, enough; there must also be reasonable cause to take his vehicle into custody.
Drinkard v. State, 584 S.W.2d 650, 653 (Tenn.1979). The guidelines of Drinkard “must be considered by law enforcement officers on the scene.” State v. Lunsford, 655 S.W.2d 921, 923 (Tenn.1983). “Our holding does not mandate that an arrestee must be advised of all available options to impoundment; such a per se rule would be unworkable because of changing conditions and circumstances. However, the extent of the consultation with an arrestee is a factor for the trial judge to consider in determining whether the impoundment was reasonable and necessary.” Ibid. (quoting Sanders v. State, 403 So.2d 973, 974 (Fla.1981)). There is no recorded case holding impoundment reasonable and necessary under circumstances similar to the case at bar, where the car is safely parked
Evidence found during an inventory search incident to an unreasonable impoundment is “the product of an unreasonable search in violation of the Fourth Amendment and Article I, Section 7, Constitution of Tennessee” and therefore inadmissible in Tennesseе courts. Drinkard, 584 S.W.2d at 654. The federal constitutional basis of Drinkard has been overruled. In the absence of a showing that police acted in bad faith or for the sole purpose of investigation, evidence discovered during inventory search of arrestee‘s car is admissible. Colorado v. Bertine, 479 U.S. 367, 372-73 (1987). “[R]easonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.” Id. at 374. But Drinkard was also based on the Tennessee constitution and state courts are the final authority on the meaning of state law. Hutchison v. Marshall, 744 F.2d 44, 46 (6th Cir.1984). Therefore the Drinkard line of cases remains valid Tennessee law. See, e.g., State v. Crutcher, 989 S.W.2d 295, 301 n. 7 (Tenn.1999) (“An inventory search of a vehicle will be upheld, however, only when there is no reasonable alternative to seizure of the vehicle.” (citing Drinkard)).
IV
For the foregoing reasons, we AFFIRM the district court‘s judgment.
CLAY, Circuit Judge, concurring.
I concur in the outcome reached by the majority in these consolidated cases. I write separately to speak on the manner in which the various law enforcement agencies arrived on the scene. Although not outcome determinative under the facts of this case, the conduct of the law enforcement officers in arriving on the scene with guns drawn, ordering the оccupants of the home to lie on the ground while the officers forced their knees into the backs of the occupants (including both Defendants),
A. Governing Fourth Amendment Jurisprudence
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. . . .”
However, in Summers, the Supreme Court recognized that
some seizures significantly less intrusive than an arrest have withstood scrutiny under the reasonableness standard embodied in the Fourth Amendment. In these cases the intrusion on the citizen‘s privacy “was so much less severe” than that involved in a traditional arrest that “the opposing interests in crime prevention and detection and in the police officer‘s safety” could support the seizure as reasonable.
Id. at 697-98 (quoting Dunaway, 442 U.S. at 209). The Supreme Court has therefore carved out “narrowly drawn” exceptions to the probable cause warrant requirement for seizures not rising to the level of a formal arrest. United States v. Sharpe, 470 U.S. 675, 689 (1985) (Marshall, J., concurring) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 115 (1977)); see also Douglas K. Yatter, et al., Warrantless Searches & Seizures, 88 Geo. L.J. 912, 912-13 (2000).
Two of the exceptions recognized by Summers are relevant to the matter at hand. Specifically, the Summers Court recognized the “stop and frisk” exception as set forth in Terry v. Ohio, wherein the Court held that a police officer may briefly stop an individual and conduct a patdown or “frisk” for weapons when the officer has a reasonable suspicion (something less than probable cause) to believe that criminal activity is afoot. See Summers, 452 U.S. at 698 (citing Terry, 392 U.S. at 16). The other relevant exception recognized by Summers is that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Id. (footnotes omitted) In a footnote to this holding, the Court opined that “[a]lthough special circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case, we are persuaded that this routine detention of residents of a house while it was being searched for contraband pursuant to a valid warrant is not such a case.” Id. at 705 n. 21. In United States v. Fountain, 2 F.3d 656, 663 (6th Cir.1993), overruled on other grounds, Burchett v. Kiefer, 310 F.3d 937 (6th Cir.2002), this Court extended the exception established in Summers regarding the detention of residents of a home being search pursuant to a valid warrant, to the detention of visitors to the home as well.
Despite these exceptions, it must be remembered that the exceptions are just that, and the “general rule [is that] every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause.” Summers, 452 U.S. at 699-700; Mendenhall, 446 U.S. at 554 (finding that a seizure has occurred when a reasonable person under the circumstances “would not have believed that he was free to leave“). The essential attributes of a formal arrest, or stated differently, the point at which the detention ripens into a de facto arrest requiring probable cause, is decided on an individual basis. See Sharpe, 470 U.S. at 685 (“Much as a ‘bright line’ rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary
For purposes of determining whether a Terry stop has exceeded its permissible scope, this Court has found that “[w]hen police аctions go beyond checking out the suspicious circumstances that led to the original stop, the detention becomes an arrest that must be supported by probable cause.” United States v. Butler, 223 F.3d 368, 374 (6th Cir.2000) (quoting United States v. Obasa, 15 F.3d 603, 607 (6th Cir.1994)). This Court has also found that when officers restrained an individual in a police cruiser after he refused to consent to a search of a storage locker and truck, the scope of the seizure went beyond the bounds of Terry and ripened it into a custodial arrest under the Fourth Amendment. See United States v. Richardson, 949 F.2d 851, 857-58 (6th Cir.1991).
For purposes of determining whether the scope of the detention has exceeded the Summers exception that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted,” Summers, 452 U.S. at 705 (footnotes omitted), it would appear that so long as the officers do not detain the occupants beyond the point of the premises’ search, the detention has not exceeded its permissible scope. This conclusion comports with the legitimate government interests which the Summers Court believed justified the detention, such as preventing flight in the event that incriminating evidence is found, minimizing the risk of harm to the officers by allowing officers to exercise unquestioned command
B. Application of the Law to the Facts of Defendants’ Motions to Suppress
As noted, the exceptions to the Fourth Amendment‘s requirement of probable cause in this case are two. First, under Summers, the reasonable detention exception as to the occupants of a residence for which a valid search warrant has been issued aрplies. See Summers, 452 U.S. at 705. Second, the “stop and frisk” exception under Terry also applies inasmuch as the officers not only detained Defendants, but made a decision prior to the search that they would invoke Terry and conduct a “patdown” for weapons on the belief that drugs may be on the premises. However, when officers from several different law enforcement agencies, including the INS, arrived on the scene with guns drawn, ordered the occupants to lie on the ground, forced their knees into the backs of the occupants (including both Defendants), and immediately handcuffed and questioned the individuals, all after the officers had blocked ingress and egress to the street on which the residence was located, the officers’ actions exceeded the reasonableness of Summers and Terry. Instead, the officers’ actions in this regard were tantamount to a de facto arrest inas
The case law from this circuit and our sister circuits support this conclusion. See United States v. Bohannon, 225 F.3d 615, 619 (6th Cir.2000) (Batchelder, J., dissenting) (“A police officer‘s verbal command---if heeded is often sufficient to seize a person” for purposes of taking the matter out of the bounds of the limited and brief nature of Terry stops) (citation and internal quotation marks omitted); Butler, 223 F.3d at 374 (“The brevity and limited nature of Terry-type stops have been repeatedly affirmed.“) (citing Obasa, 15 F.3d 603, 607); Richardson, 949 F.2d at 857-58 (finding that the scope and nature of the detention exceeded the bounds of Terry when officers restrained an individual in a police cruiser after he refused to consent to a search of a storage locker and truck); Oliveira, 23 F.3d at 642, 645-46 (2d Cir.1994) (finding that a Terry stop ripened into a custodial arrest when six police cruisers surrounded the suspects, ordered them from their vehicles at gunpoint, handcuffed the suspects, and placed them in separate police cruisers); United States v. Anderson, 981 F.2d 1560, 1566 (10th Cir.1992) (finding that a Terry detention ripened into a custodial arrest when officers blockеd suspect with cars and one officer
Thus, although the officers had a legal basis to detain the occupants of the residence, including Defendants, under Summers and Terry, the scope and nature of the detention was not reasonable “in view of all of the circumstances surrounding the incident.” Mendenhall, 446 U.S. at 554; see also Summers, 452 U.S. at 698 (citing Terry, 392 U.S. at 16).
It is true that the officers had made a decision prior to executing the warrant that any individuals found on the premises would be “detained” and friskеd for weapons because of the marijuana seeds found in the trash pull conducted earlier that day; however, when asked whether by the term “detained” the officers meant “arrested” or just “monitored,” Secret Service Agent Monica Woods replied “monitored.” (J.A. at 143.) Specifically, the questioning of Agent Woods went as follows:
Q: [P]rior to the execution of the warrant, was there a meeting of the various agencies and individuals who‘re part of the search warrant execution team?
A: Yes. Everyone who was part of the search warrant was involved in a briefing just prior to the search warrant.
Q: Had the issue of whether or not people who were on the property, if
A: All of those people would be patted down for weapons and detained until we decided what steps to take next.
Q: Now, by detained, do you mean placed under arrest or just put to the side and monitored?
A: Yes, monitored.
(J.A. at 142-43 (emphasis added).)
Indeed, under the agent‘s own testimony, the scope and nature of the detention went well beyond that which had been agreed to prior to the time the search warrant was executed. Had the officers followed the plan attested to by Agent Woods---arriving on the scene, patting down the occupants of the home, and putting them to the side until the search had been completed, at which point the occupants may or may not have been arrested depending upon whether evidence of criminality had been found---the conclusion would be different inasmuch as the officers’ actions would have been within the reasonableness of Summers and Terry.
C. Conclusion
Although the law enforcement officials’ actions upon arriving on the scene were unreasonable, I concur in the outcome reached by the majority because, under the facts of this case, the evidence was otherwise discovered through lawful means.