UNITED STATES of America, Plaintiff-Appellee v. Tyrone HARRIS, Defendant-Appellant.
No. 12-3247.
United States Court of Appeals, Eighth Circuit.
April 4, 2014
Rehearing and Rehearing En Banc Denied May 14, 2014.
747 F.3d 1013
In Stollings v. Ryobi Technologies, Inc., 725 F.3d 753, 760 (7th Cir. 2013), the Seventh Circuit noted that “the weight of the evidence” is another relevant factor in determining “whether the improper argument deprived a party of a fair trial.” 725 F.3d at 760. Though not determinative, we agree this is a relevant factor. Again, it points toward the need for a new trial in this case. After the jury returned its verdict, the district court commented, “it was kind of a tough case. It could go either way.” And unlike the district court, we conclude that Gilster‘s credibility, which counsel‘s improper argument was intended to enhance, was a key issue as to liability, as well as damages. Only Gilster described Strub‘s alleged harassment other than the “take out your teeth” comment, because her former female co-workers testified they did not observe such conduct or experience it themselves. Gilster‘s testimony describing retaliatory actions by Strub and other Primebank officers, and her opinion that the reasons given for her termination were false, were contradicted by her co-workers, as well as by her supervisors and by the Primebank decisionmakers. The hard-fought trial warranted hard-hitting, but not improper, closing argument.
Having carefully reviewed the entire trial record, we are left with the firm conviction that the timing and emotional nature of counsel‘s improper and repeated personal vouching for her client, using direct references to facts not in evidence, combined with the critical importance of Gilster‘s credibility to issues of both liability and damages, made the improper comments unfairly prejudicial and require that we remand for a new trial. This is not an action we take lightly, for it means that Gilster is deprived of a favorable jury verdict, and that all the witnesses may need to endure again what was surely a stressful, unpleasant trial. However, as we said many years ago in an opinion that has been frequently cited by other courts, “when a lawyer departs from the path of legitimate argument, [s]he does so at [her] own peril and that of [her] client.” Kelly, 84 F.2d at 573.
The judgment of the district court including the award of attorneys’ fees is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
Tyrone Harris, Greenville, IL, pro se.
Christina Y. Tabor, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
Before RILEY, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Tyrone Harris entered a conditional guilty plea to being a felon in possession of a firearm in violation of
I.
Around 1:00 p.m. on January 29, 2011, a Greyhound bus employee called the Kansas City Police Department to notify the police that a man at its bus station had fallen asleep on a bench with a handgun falling out of his pants pocket. Firearms were prohibited in the Greyhound terminal as Greyhound had elected, pursuant to
After Harris‘s motions to suppress the firearm were denied, Harris entered a conditional plea of guilty for being a felon in possession of a firearm in violation of
We review the district court‘s denial of Harris‘s suppression motions de novo and the factual determinations underlying the district court‘s decision for clear error. See United States v. Orozco, 700 F.3d 1176, 1178 (8th Cir. 2012).3 Applying this standard of review, we hold that the officers acted reasonably in their response to the emergency they faced, and accordingly, we affirm the district court‘s denial of Harris‘s motions to suppress.
II.
The ultimate touchstone of the Fourth Amendment is “reasonableness.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Generally, searches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable, “subject only to a few specifically established and well-delineated exceptions.” United States v. Taylor, 636 F.3d 461, 464 (8th Cir. 2011) (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). The well-known exception upon which the Government initially relies, first recognized in Terry v. Ohio, permits an officer to stop and frisk an individual if the officer has a reasonable suspicion that “criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous.” See 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Government struggles to show, however, that the Kansas City police had a reasonable suspicion of criminal ac-
Nevertheless, Terry remains relevant to the disposition of this case because the Terry Court recognized that “[e]ncounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime.” Terry, 392 U.S. at 13. The Supreme Court has described this “community caretaking” aspect of local law enforcement as those activities that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Our circuit has recognized, under the “community caretaker” classification, that noninvestigatory searches and seizures may be justified in certain limited situations. See Burke v. Sullivan, 677 F.3d 367, 371 (8th Cir. 2012); United States v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006); Samuelson v. City of New Ulm, 455 F.3d 871, 877-78 (8th Cir. 2006); Winters v. Adams, 254 F.3d 758, 762-64 (8th Cir. 2001); accord Wilson v. State, 409 Md. 415, 975 A.2d 877, 889-92 (2009) (compiling cases that have permitted noninvestigatory seizures under the community caretaker doctrine).
A search or seizure of a person by a police officer acting in the officer‘s noninvestigatory capacity is reasonable if the “governmental interest in the police officer‘s exercise of [the officer‘s] ‘community caretaking function,’ ” “based on specific articulable facts,” outweighs “the individual‘s interest in being free from arbitrary government interference.” Samuelson, 455 F.3d at 877 (quoting Winters, 254 F.3d at 767 (Bye, J., concurring)); accord United States v. Garner, 416 F.3d 1208, 1213 (10th Cir. 2005). The scope of the encounter must be carefully tailored to satisfy the purpose of the initial detention, and the police must allow the person to proceed once the officer has completed the officer‘s inquiry, unless, of course, the officer obtains further reason to justify the stop. See Garner, 416 F.3d at 1213; see also United States v. Morgan, 729 F.3d 1086, 1091 (8th Cir. 2013) (“While officers should employ the least intrusive means reasonably available to verify or dispel their suspicions, they may take any additional steps that are ‘reasonably necessary to protect their personal safety ... during the course of the stop.’ ” (alteration in original) (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985))).
One situation in which an officer may act under the community caretaker doctrine is when “the officer has a reasonable belief that an emergency exists requiring his or her attention.” Burke, 677 F.3d at 371 (internal quotation marks omitted); see, e.g., Quezada, 448 F.3d at 1007 (holding that a warrantless entry into a home was reasonable because “a reasonable officer in the deputy‘s position could conclude that someone was inside but was unable to respond for some reason“); Winters, 254 F.3d at 764 (holding that a seizure without suspicion was reasonable because allowing a “possibly intoxicated individual to drive [a] vehicle” created a serious risk to the public). When police must make a split-second decision in the face of an emergency to either stand idly by, permitting a dangerous situation to continue uninterrupted, or act, addressing the potential danger to protect the public, we have reasoned that officers are expected to
We must first determine the capacity in which the officers were acting here because “there is a difference between the standards that apply when an officer [acts] as a so-called community caretaker and when he or she [acts] to investigate a crime.” See Quezada, 448 F.3d at 1007. Viewing the circumstances and the officers’ actions objectively, see Ashcroft v. al-Kidd, — U.S. —, 131 S.Ct. 2074, 2080-83, 179 L.Ed.2d 1149 (2011); Brigham City, 547 U.S. at 404-05, we are satisfied that the officers were acting in their community caretaker capacity. The police department received a request from Greyhound to assist it in dealing with a dangerous, potentially volatile situation. The circumstances in this case are analogous to those in Quezada and Winters, in which the officers were forced to respond to potential emergency situations while assisting members of the community. See Quezada, 448 F.3d at 1006-07 (holding community caretaker doctrine applied when officer encountered emergency while serving a childprotection order); Winters, 254 F.3d at 762-64 (holding community caretaker doctrine applied when officers responded to a complaint that an individual was acting irrationally at the end of a dead-end street in a residential area).
Next, we must weigh the government‘s interest in the officers’ actions against Harris‘s right to be free from government intrusion. When the officers arrived at the public, highly trafficked Greyhound bus station, which is in a high-crime area, they saw a handgun hanging out of Harris‘s pocket. Any number of dangerous, or even deadly, outcomes4 could have resulted if the officers had permitted the situation to continue uninterrupted. See United States v. Janis, 387 F.3d 682, 687-88 (8th Cir. 2004) (permitting officers to secure a weapon that had been used in an accidental shooting); see also Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (“Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions.“). The justification for the limited intrusion was not simply a suspicion that Harris was carrying a firearm, see, e.g., J.L., 529 U.S. at 270-73; Jones, 606 F.3d at 965-66, or even actual knowledge that Harris was carrying a firearm; the justification was that the police knew that Harris was carelessly handling a firearm in a dangerous and public location that had forbidden firearms. Unlike most typical Fourth Amendment encounters, the governmental interest vindicating the officers’ actions here is not encompassed in the enforcement of criminal statutes but, instead, in the officers’ obligation “to help those in danger and to protect property,” see Quezada, 448 F.3d at 1007, and to ” ‘ensure the safety of the public and/or the individual, regardless of any suspected criminal activity.’ ” See Samuelson, 455 F.3d at 877 (quoting Winters, 254 F.3d at 763); cf. Terry v. Ohio, 392 U.S. 1, 13 & n. 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (reasoning that a police encounter may “be designed simply to help an intoxicated person find his way home, with no intention of arresting him unless he becomes obstreperous“). In light of the risks Harris‘s
Once we are satisfied that the initial encounter was justified, we must assess whether the scope of the encounter was carefully tailored to satisfy the purpose of the initial detention. Here, we consider the protective measures the police took to ensure their safety and the scope and duration of the intrusion.
In the course of an encounter, police officers may take steps reasonably necessary to protect their personal safety. United States v. Morgan, 729 F.3d 1086, 1091 (8th Cir. 2013). During a Terry stop, we have reasoned that officers may “handcuff a suspect ... to protect their personal safety” and maintain the status quo. Id.; United States v. Smith, 645 F.3d 998, 1002 (8th Cir. 2011). Officers may take similar protective measures during consensual encounters. See United States v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000). The officers’ encounter with Harris is no different than a Terry stop or consensual encounter in the sense that it involved police action “‘at close range,‘” see Morgan, 729 F.3d at 1091 (quoting Terry, 392 U.S. at 24), and, as such, the officers were entitled to take reasonable protective measures. See Davis, 202 F.3d at 1062-63. The officers’ decision to handcuff Harris was reasonable considering the “circumstances confronting the officer when he made the decision.” See id. at 1063. The officers knew that they were in a high-crime area, Harris was carrying at least one weapon, and Harris was sleeping. Faced with these circumstances, the officers’ decision to handcuff Harris until they could safely awaken him and obtain more information was reasonable. See United States v. Martinez, 462 F.3d 903, 907-08 (8th Cir. 2006).
Finally, the scope and duration of the intrusion were also reasonable. After the officers woke Harris, they asked Harris his name and were notified that he had an outstanding warrant for his arrest. The officers were entitled to verify Harris‘s identity because his identity was reasonably related to the circumstances justifying the encounter. See United States v. Garcia, 646 F.3d 1061, 1069 (8th Cir. 2011); cf. Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (reasoning that an innocent explanation may exist for an ambiguous situation but officers can detain an individual in order to “resolve the ambiguity“). The officers’ justification to intervene arose because of the evident risk the unguarded handgun posed to the public. By returning the handgun to an individual “‘wanted for another offense, or [with] a record of violence or mental disorder‘” without further inquiry, the officers would have instantly revived a dangerous situation. See Garcia, 646 F.3d at 1069 (quoting Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 186, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004)). Verifying Harris‘s identity was a quick and minimally intrusive method for the officers to protect themselves and those around them. Once the officers learned of the outstanding warrant for Harris‘s arrest, the officers had probable cause for the arrest. See Johnson v. Phillips, 664 F.3d 232, 237-38 (8th Cir. 2011) (“The outstanding warrant gave [the officer] probable cause to arrest [the individual].“).
Our inquiry in this case is guided by the Fourth Amendment‘s central requirement, reasonableness. Based on the specific and
III.
For the foregoing reasons, we affirm the district court‘s denial of Harris‘s motion to suppress.
Wes COLOMBE, Personal Representative of Charles Colombe, Individually and as an Officer of BBC Entertainment, Inc., a dissolved Minnesota corporation, Plaintiff-Appellant v. ROSEBUD SIOUX TRIBE; Rosebud Sioux Tribal Court; Judge Sherman Marshall, in his Official and Individual Capacities, Defendants-Appellees.
Wes Colombe, Personal Representative of Charles Colombe, Individually and as an Officer of BBC Entertainment, Inc., a dissolved Minnesota corporation, Plaintiff-Appellee v. Rosebud Sioux Tribe; Rosebud Sioux Tribal Court; Judge Sherman Marshall, in his Official and Individual Capacities, Defendants-Appellants.
Nos. 13-1382, 13-1512.
United States Court of Appeals, Eighth Circuit.
Submitted: Oct. 23, 2013.
Filed: April 4, 2014.