U.S. v. Ward, 93-3262

• Decision Date: 04 May 1994
• Docket Number: No. 93-3262,93-3262
• Citation: 23 F.3d 1303
• Parties: UNITED STATES of America, Appellee, v. Paul Anthony WARD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1303

23 F.3d 1303

UNITED STATES of America, Appellee, v. Paul Anthony WARD, Appellant.

No. 93-3262.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 15, 1994.

Decided May 4, 1994.

Dean Grau, Minneapolis, MN, argued (Dean S. Grau and Scott Buhler, on the brief), for appellant.

Andrew Stephen Dunne, Minneapolis, MN, argued (Francis X. Hermann, Kenneth W. Saffold and Dale Caldwell, on the brief), for appellee.

Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.

WOLLMAN, Circuit Judge.

Paul Anthony Ward appeals from his conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1). He argues that the police unconstitutionally seized and searched him and that the district court ¹ therefore erred in not suppressing the evidence discovered during the search. We find that Ward was neither unconstitutionally seized nor improperly searched and therefore affirm.

I.

At approximately 6:00 p.m. on December 5, 1992, a clerk at a gas station in Hopkins, Minnesota, called the Hopkins Police Department. The clerk said that a customer had seen a man acting suspiciously in a brick alcove beside the station. Officer Klingbeil, who knew that the station had been robbed several times in the past, was the first officer to respond. He first inspected the alcove area, but saw no one. Klingbeil then examined the alley behind the station. When Reserve Officer Glassberg's patrol car appeared in the alley, Ward walked out of the darkness toward Klingbeil. Klingbeil turned on his flashlight to illuminate the area and asked Ward if he had any identification. Ward asked whether there was a problem, and Klingbeil told him that they had received a call about someone lurking outside the station. Ward provided Klingbeil with a paper indicating that one Paul Anthony Ward had just been released from Hennepin County Jail. Ward explained that the release paper was his only identification and that he was staying with his cousin, Daryl Hopkins, who lived in Hopkins. Ward asked Klingbeil if he could enter the station to purchase cigarettes. Klingbeil permitted him to do so and, joined by Glassberg, followed Ward into the station. Ward asked if he was under arrest, and Klingbeil said no.

By this point, Klingbeil had decided to detain Ward until he ran a warrant check. He could not run the check immediately, however, because the lone dispatcher was busy. Klingbeil did not inform Ward that he was planning to detain him.

Inside the station, Ward appeared jumpy as he purchased his cigarettes. Klingbeil spoke to the clerk and to the customer who had initially reported seeing a man lurking in the alcove. The customer informed Klingbeil that Ward was the one he had seen earlier. After Ward had purchased his cigarettes, the two officers and Ward exited the station.

As they walked back toward the alley, Klingbeil asked Ward how he had gotten to the station. Ward, who continued to appear nervous, said that his cousin Daryl had given him a ride in a gray Bonneville, and then pointed toward Harrison Avenue. Glassberg, who had driven to the station via Harrison Avenue, said that he had not seen a Bonneville there. Klingbeil asked Ward where his cousin lived. Ward initially said that he did not know, but then stated that Hopkins lived by a truck stop. Klingbeil knew, however, that there was no truck stop in Hopkins. Officer Ophoven, who had arrived as Klingbeil questioned Ward, asked Ward if he would show them where his cousin lived. Ward agreed to do so. Ophoven asked Ward if he wanted to ride in Ophoven's squad car, and Ward said yes.

As the officers and Ward walked toward Ophoven's car, Klingbeil placed his left hand on Ward's shoulder and began frisking his right side. Ward asked Klingbeil what he was doing. Klingbeil responded that he had to frisk him before he could enter the squad car. Klingbeil felt some hard cylindrical objects in Ward's right coat pocket. Believing that the objects were shotgun shells, Klingbeil reached into the pocket and retrieved two shells. Ward protested that the search was illegal. Continuing his frisk, Klingbeil felt a long hard object on the left side of Ward's body. Klingbeil lifted Ward's jacket and discovered a sawed-off 20-gauge shotgun in Ward's left front pants' pocket. The officers removed the gun from Ward and advised him that he was under arrest for possessing the shotgun.

A federal grand jury indicted Ward for possession of a sawed-off shotgun and for being a felon in possession of a firearm. Ward moved to suppress the shotgun and the shells. Following a hearing, a United States Magistrate Judge ² recommended that the evidence not be suppressed. The district court adopted the recommendation and denied the motion. Ward entered a conditional guilty plea to being a felon in possession of a firearm, preserving his right to appeal the denial of the suppression motion. The district court sentenced Ward to sixty-three months of imprisonment, to be followed by three years of supervised release.

II.

We review the denial of a motion to suppress under the clearly erroneous standard of review. See, e.g., United States v. Jorgensen, 871 F.2d 725, 728 (8th Cir.1989). We will affirm unless the district court's decision is unsupported by substantial evidence or based on an erroneous interpretation of applicable law, or, in light of the entire record, we are left with a firm and definite conviction that a mistake has been made. Id.

Ward argues that he was seized within the meaning of the Fourth Amendment when Klingbeil initially questioned him in the alley and that Klingbeil did not have reasonable suspicion to justify the seizure. We disagree.

Whether a seizure occurred is a question of law that we review de novo. United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). A seizure does not occur when a police officer approaches an individual and merely questions him or asks to examine his identification--so long as the officer does not convey a message that compliance with his requests is required. Florida v. Bostick, 501 U.S. 429, ----, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). If "a reasonable person would feel free 'to disregard the police and go about his business,' " the encounter is consensual and no reasonable suspicion is required. Id. (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991)). In short, to determine whether a particular encounter constitutes a seizure, we consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that he was not free to decline the officers' requests or otherwise terminate the encounter. Id. at ----, 111 S.Ct. at 2389.

Applying this standard, we find that Ward was not seized until Klingbeil began frisking him. Prior to that time, none of the officers conveyed a message to Ward that he was not free to disregard them and go about his business. When Ward initially approached Klingbeil, the officer asked him for identification. When Ward asked if he could enter the station to purchase cigarettes, Klingbeil allowed him to do so, thus indicating to Ward that he was free to continue with his business. ³ As Ward walked into the station, he asked if he was under arrest, and Klingbeil said no, further indicating to Ward that he had not been detained. Although the officers followed Ward into the station, they in no way interfered with his business of purchasing cigarettes; rather, they continued their...