USA. v. Miles
Decision Date | 26 April 2001 |
Docket Number | No. 00-30035,00-30035 |
Citation | 247 F.3d 1009 |
Parties | (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARK ANTHONY MILES, Defendant-Appellant |
Court | U.S. Court of Appeals — Ninth Circuit |
Nancy Bergeson, Assistant Federal Public Defender, Portland, Oregon, for the defendant-appellant.
Michael J. Brown, Assistant United States Attorney, Portland, Oregon, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon. Ancer L. Haggerty, District Judge, Presiding. D.C. No. CR-98-00035-HA.
Before: M. Margaret McKeown, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges.
In this case, we address whether a police officer, when conducting a patdown search for weapons during an investigatory stop, may lawfully go beyond a patdown and move or shake a small box in a suspect's clothes to determine its contents. Defendant Mark Miles appeals the district court's denial of his motion to suppress evidence, including a gun, bullets, and his statements, arguing that the police officers' intrusive detention of him amounted to an arrest without probable cause and that they subjected him to an unlawful search. Following denial of that motion, Miles entered a conditional guilty plea, under Federal Rule of Criminal Procedure 11(a)(2), to being a felon in possession of ammunition in violation of 18 U.S.C. 922(g)(1). We reverse the district court's denial of Miles's motion to suppress and remand for further proceedings.
At approximately 1:40 a.m. on Sunday, December 14, 1997, while on routine patrol, Portland police officers John Birkinbine and Tim Bacon learned by radio that a citizen had reported that a black male wearing an "oversized jacket" and riding a ten-speed-type bicycle eastbound on Northeast Portland Boulevard had fired a gun at a residence on that street. According to Officer Birkinbine, the Portland Boulevard residence was "a house known to sell drugs and have a lot of activity all hours of the day and night."
Upon receiving the call, the officers drove to the vicinity of the Portland Boulevard residence to look for evidence. They "started working the blocks looking for someone matching the description." Within twelve minutes of the emergency call, the officers observed Miles in the yard or on the sidewalk in front of a residence on Northeast Eighth Street, approximately six blocks from the Portland Boulevard residence. Miles was the first (and only) person the officers came across during their search who fit the description of the suspected shooter. Officer Birkinbine testified that it would be rare to see anyone on the street at that time of night in mid-December. Miles, a black male, was wearing an oversized jacket, and was standing in the immediate vicinity of a ten-speed-type bicycle that was lying in the yard of the Eighth Street residence. Officer Birkinbine also saw two other individuals; one was on the sidewalk or near the porch of the residence, and the other individual was near the porch.
In this neighborhood, the majority of the residents are African-American, it was relatively common for young males to ride bikes, and many of them wore big, bulky jackets. Nonetheless, Officer Birkinbine stopped Miles because he concluded that there was a reasonable possibility that he was the suspected shooter. Officer Birkinbine testified that, in doing so, he needed to exercise caution:
I needed to exercise a tremendous amount of officer safety. I was concerned because there had been a gun in the call. Not just was there a gun that was seen, shots were actually fired. And not just in the air but actually into a house. So I was definitely concerned for my safety and my partner's safety and also the other people there.
The officers therefore approached Miles with their guns drawn.
By that time, Miles had walked to the porch of the residence, close to the area where the other two individuals were located. The officers directed Miles to come down from the porch and kneel in the yard with his hands raised. Miles did so, and the officers handcuffed him behind his back. According to Officer Birkinbine's testimony, he stated in his police report that he "took [Miles] into custody to investigate the crime" and, after handcuffing Miles, "began to search his person for evidence." Officer Birkinbine also testified that he wanted to make sure that Miles did not "have any weapons or anything that was going to hurt me or anyone else or provide him with a means of escape," because he "knew that [Miles] was going to go into a police car."
Officer Birkinbine "did a check of [Miles's ] outer garments" by "pushing in" to "check for weapons, sharp things, needles, knives, anything that ... might hurt [the officer] or facilitate escape." In doing so, Officer Birkinbine came across what felt like a box in Miles's pocket:
I came across something hard in his outer pocket. And when I tried to wrap my hands around it from outside the pocket, I could tell that it was a box. And when I ... moved it up and down a little bit or back and forth, it sounded to me like bullets, loose bullets, in some sort of a container.
The box measured approximately 2-1/2" x 1-1/2" x 1". Officer Birkinbine "wrapped [his] hand around the box and shook it or moved it around." After "hearing the bullets clanking together" and concluding that the box contained bullets and that Miles was the shooter, Officer Birkinbine retrieved a cardboard box containing .22 caliber shells from Miles's pocket. Officer Birkinbine then advised Miles of his Miranda rights and arrested him. Later, a loaded gun was found in the yard of the Eighth Street residence, approximately six feet from where Officer Birkinbine first saw Miles. Subsequently, it was determined that the ammunition in the gun matched the ammunition in the box found in Miles's pocket.
The government filed a two-count indictment against Miles, charging him with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. 922 (g)(1). Miles pled not guilty and filed a motion to suppress, arguing that he was arrested without probable cause when he was held at gunpoint and handcuffed before being questioned and that the officers exceeded the scope of an investigatory stop. Following a hearing, the district court denied the motion, finding that the officers' conduct constituted a proper investigatory stop under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and that probable cause existed even if Miles's detention were construed as an arrest. The district court further concluded that Officer Birkinbine's discovery of the bullets arose from a proper Terry patdown.
Miles thereafter entered a Rule 11(a)(2) conditional guilty plea to being a felon in possession of ammunition, reserving his right to seek judicial review of the denial of his motion to suppress. The district court imposed a thirty-month sentence, and Miles filed this appeal.
"Motions to suppress are generally reviewed de novo." See United States v. Wright, 215 F.3d 1020, 1025 (9th Cir.), cert. denied, 148 L. Ed. 2d 313, 121 S. Ct. 406 (2000). "The determination of whether a seizure exceeds the bounds of a Terry stop and becomes a de facto arrest is reviewed de novo. " United States v. Torres-Sanchez, 83 F.3d 1123, 1127 (9th Cir. 1996).
Miles does not dispute that there was a sufficient basis for an investigatory stop under Terry. Rather, he argues that the officers' intrusive detention--i.e., ordering him to his knees at gunpoint and handcuffing him behind his back--amounted to an arrest. Under the circumstances here, however, we cannot conclude that the officers' conduct was tantamount to an arrest.
It is well-settled that " ' United States v. Taylor, 716 F.2d 701, 708 (9th Cir. 1983) (quoting Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972)). Generally, "[a] Terry stop involves no more than a brief stop, interrogation and, under proper circumstances, a brief check for weapons." United States v. Robertson, 833 F.2d 777, 780 (9th Cir. 1987). If the stop proceeds beyond these limitations, an arrest occurs, which requires probable cause. Id. "There has been an arrest if, under the circumstances, a reasonable person would conclude that he was not free to leave after brief questioning." United States v. Del Vizo, 918 F.2d 821, 824 (9th Cir. 1990).
Under ordinary circumstances, drawing weapons and using handcuffs are not part of a Terry stop. Washington v. Lambert, 98 F.3d 1181, 1187 (9th Cir. 1996). Nevertheless, "we allow intrusive and aggressive police conduct without deeming it an arrest ... when it is a reasonable response to legitimate safety concerns on the part of the investigating officers." Id. at 1186; accord Alexander v. County of Los Angeles, 64 F.3d 1315, 1320 (9th Cir. 1995) (). In determining whether a stop amounts to an arrest, we also consider "the specificity of the information that leads the officers to suspect that the individuals they intend to question are the actual suspects being sought" and "the number of police officers present." Lambert, 98 F.3d at 1189-90.
We have permitted the use of intrusive means to effect a stop where the police have information that the suspect is currently armed or the stop closely follows a violent crime. See Lambert, 98 F.3d at 1189. Under such circumstances, holding a suspect at gunpoint, requiring him to go to his knees or lie down on the ground, and/or handcuffing him will...
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