202 F.3d 1060 (8th Cir. 2000), 99-1558, United States v Davis

Docket Nº:99-1558
Citation:202 F.3d 1060
Party Name:United States of America, Plaintiff - Appellee, v. Clayton Anthony Davis, Defendant - Appellant.
Case Date:February 07, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1060

202 F.3d 1060 (8th Cir. 2000)

United States of America, Plaintiff - Appellee,

v.

Clayton Anthony Davis, Defendant - Appellant.

No. 99-1558

United States Court of Appeals, Eighth Circuit

February 7, 2000

Submitted: October 18, 1999

Rehearing and Rehearing En Banc

Denied April 4,[2000*]

Appeal from the United States District Court for the District of Minnesota.

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Before WOLLMAN, Chief Judge, LAY and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

After the District Court1 denied his motion to suppress, Clayton Anthony Davis pleaded guilty to a charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The firearm was uncovered by a protective frisk of Davis that occurred during a consensual stop of Davis and his uncle, Quinton Blount. Davis appeals, arguing that the frisk violated his Fourth Amendment rights. Concluding that the investigating officer acted reasonably under the circumstances, we affirm.

On the afternoon of February 10, 1998, Minneapolis police officer Giovanni Veliz observed Blount and Davis attempting to enter an apartment complex at 1826 Chicago Avenue through its secured back door. Sergeant Veliz had been patrolling the complex twice a day since September 1997, at the request of its owner/landlord, because of repeated drug dealing and other criminal activity. During those patrols, Sergeant Veliz had made several narcotics and one weapons arrest. He had come to know most of the apartment residents by sight and also knew that the back door was sometimes propped open to defeat the building's security system. So, when Veliz saw two strangers attempting to enter through the back door, his suspicions were aroused.

Blount and Davis spotted Sergeant Veliz's squad car and walked to the front of the building. Sergeant Veliz drove around to the front, exited the squad car and approached the two men, and asked if he could talk to them. They agreed, and Blount handed Veliz a driver's license. Veliz immediately pat-searched Blount for weapons. While pat-searching Blount, Veliz observed Davis nervously move behind Veliz, adjust his jacket, and place his hand in a jacket pocket. Veliz then pat-searched Davis. When he felt a hard metal object in the jacket pocket, Veliz ordered Davis and Blount to the ground and called for back-up. A search of Davis then uncovered the handgun that is the basis for the conviction and twenty-four-month prison sentence he now appeals.

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court first considered the constitutional limitations on the power of police officers to "stop and frisk" suspicious persons. The Court concluded that a protective frisk or pat-down search, however brief, is both a search and a seizure for Fourth Amendment purposes. 392 U.S. at 19. But the Court held that a protective search for weapons is constitutional, even in the absence of traditional Fourth Amendment probable cause, "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous." Id. at 30. The critical inquiry is whether the officer had "reasonable suspicion." We review this ultimate issue de

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novo, but we review the district court's findings of historical fact for clear error, giving "due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 699 (1996).

On appeal, Davis concedes that his initial exchange with Sergeant Veliz was the sort of concensual encounter that does not trigger Fourth Amendment scrutiny.2 However, Davis argues that the consensual encounter was transformed into an investigative stop when Veliz pat-searched Blount; that this seizure violated the Fourth Amendment because Veliz lacked reasonable suspicion that Blount and Davis were engaged in criminal activity at the moment Veliz commenced the investigative stop; that Davis's conduct after the stop commenced cannot supply the reasonable suspicion needed to justify an investigative stop; and that the subsequent pat-down search of Davis was therefore an illegal fruit of the unconstitutional Terry stop. In denying Davis's motion to suppress, the district court relied heavily on his furtive actions while Veliz was pat-searching Blount. Thus, a critical element in Davis's theory is the assertion that these actions are irrelevant to our Fourth Amendment inquiry. For the following reasons, we reject that assertion.

Although we agree with Davis that conduct after an investigative stop begins cannot supply the reasonable suspicion needed to justify the stop, see, e.g., United States v. White, 890 F.2d 1413, 1417 n.4 (8th Cir. 1989), cert. denied 498 U.S. 825 (1990), we cannot agree that the pat-down search of Blount was an investigative stop. Terry leaves no doubt that a pat-down search is a seizure.3 But it need not follow from the fact that Blount was momentarily seized during the protective frisk that the frisk was also an investigative stop. The two types of seizures have distinct law enforcement justifications. During an investigative stop, the officer may briefly detain a person while the officer investigates his reasonable suspicion that criminal activity is afoot. A pat-down search, on the other hand, protects the officer's personal safety while dealing with a person he reasonably believes may be armed and presently dangerous. To be constitutionally reasonable, a protective frisk must also be based upon reasonable suspicion that criminal activity is afoot, and therefore pat-down searches normally occur during investigative stops of persons suspected of criminal activity. But the two types of seizures are analytically distinct, as is evidenced by the fact that the Supreme Court in Terry upheld the constitutionality of a pat-down search without considering whether an investigative stop preceded the protective frisk. See 392 U.S. at 19 n.16.

The distinction is critical in this case. If Sergeant Veliz turned the initial consensual encounter into an investigative stop, that would involve a brief but forcible detention in which neither suspect was free to leave. But Veliz did nothing to change the consensual nature of the encounter except frisk Blount for weapons. When that momentary seizure ended, Blount remained free to answer Veliz's questions or to leave (assuming the search uncovered no weapons). And Blount's companion, Davis, was free to break off the consensual encounter and leave during or after the

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protective search of Blount. Because the consensual nature of Davis's encounter with Veliz did not change, we need not consider whether Veliz had reasonable suspicion to make an investigative stop at the time he frisked Blount. The only relevant question is whether Veliz reasonably concluded, after pat-searching Blount, that officer safety justified a pat-down search of Davis because "criminal activity may be afoot and [Davis] may be armed and presently dangerous." Terry, 392 U.S. at 30.

Davis's assertion that the suspicion justifying a protective frisk must be present at the outset of an investigative stop also fails to recognize the analytical distinction between investigative stops and protective frisks. The danger to officer safety that justifies a protective search may arise after a consensual encounter or investigative stop has commenced. This irrefutably logical proposition is illustrated by our decision in United States v. Abokhai, 829 F.2d 666 (8th Cir. 1987), cert. denied 485 U.S. 907 (1988), where we upheld a protective frisk conducted some ten minutes after the investigative stop commenced. In Abokhai, the investigating officers decided to put the suspects in the back seat of the patrol car to keep warm while a computer check of their identities was in progress. Though the officers initially had no reason to believe the suspects were dangerous, we upheld the later frisk because putting them in the rear of the patrol car increased the risk to officer safety. 829 F.2d at 670-71. Thus, the Fourth Amendment inquiry as to whether a...

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