U.S. v. Orman

• Decision Date: 22 May 2007
• Docket Number: No. 06-10398.,06-10398.
• Citation: 486 F.3d 1170
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dale Washington ORMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.3d 1170

UNITED STATES of America, Plaintiff-Appellee, v. Dale Washington ORMAN, Defendant-Appellant.

No. 06-10398.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 18, 2007.

Filed May 22, 2007.

Milagros A. Cisneros, Assistant Federal Public Defender, Phoenix, AZ, for the appellant.

Michael A. Lee, Special Assistant United States Attorney, Phoenix, AZ, for the appellee.

Appeal from the United States District Court for the District of Arizona; David G. Campbell, District Judge, Presiding. D.C. No. CR-05-00403-DGC.

Before: ALFRED T. GOODWIN, D.W. NELSON, and CONSUELO M. CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

Dale Washington Orman was convicted of unlawful possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), pursuant to a conditional guilty plea. His conviction stems from the seizure of a handgun by an off-duty police officer at a Phoenix mall that prohibits patrons from carrying weapons while on the premises. On appeal he challenges the district court's denial of his motion to suppress the firearm, arguing that he did not consent to the seizure of the gun and that the seizure required reasonable suspicion or probable cause that a crime had been committed. He argues further that neither reasonable suspicion nor probable cause existed and that the search was not justified for officer safety purposes.

FACTS & PROCEDURAL HISTORY¹

On August 20, 2004, at approximately 3:45 p.m., Orman and his wife entered the Paradise Valley Mall in Phoenix. An employee of the local utility company, Arizona Public Service ("APS"), reported to mall personnel that he observed a man (later identified as Orman) place a handgun in his boot before entering the mall. The APS employee described the man as white, wearing a white tank top, and covered with tattoos. He reported that the man entered the southwest area of the mall near Starbucks.

Mall security director Donald Hoskinson received this information by radio, and contacted Officer John Ferragamo of the Phoenix Police Department, who was working at the mall as an off-duty police officer. With the help of another security officer who advised Hoskinson by radio that he had seen the man in question, Officer Ferragamo located Orman near Dillard's department store at the northeast end of the mall. Orman matched the physical description provided by the APS employee.

Officer Ferragamo approached Orman, and from a distance of about six to eight feet asked "excuse me, may I speak to you?" Orman said "sure" and Ferragamo motioned Orman away from the foot traffic and toward a store window. Once away from the flow of foot traffic, Ferragamo told Orman that he had information that Orman may be carrying a gun and asked Orman if that were true. Orman admitted to carrying a gun and apologized. Ferragamo did not see a gun in Orman's boot, but he noticed a small bulge under Orman's shirt and asked Orman where the gun was located. Orman pointed to his waist band and Ferragamo retrieved a 9 mm Glock handgun.²

Hoskinson, who was wearing business clothes, did not participate in the encounter. He remained about 20 feet behind and to the left of Ferragamo. Officer Brody Tomasi, who was also working as an off-duty police officer at the mall, approached the Dillard's area after hearing about the suspected gunman on his radio. He stopped about 10 feet from Ferragamo and Orman, behind and to the left of Orman. He monitored the situation. He did not draw his gun or participate in the contact.

Two other police officers, Roger Larson and Oscar Bernal, entered the mall after being informed by security about a man with a gun. Officer Larson approached Ferragamo and Orman while they were talking by the storefront after Ferragamo had retrieved the handgun. Larson observed the situation as calm and Orman as being cooperative.

Ferragamo then informed Orman that he wanted to continue the conversation in the mall security office.³ Orman agreed, and he and his wife accompanied Ferragamo and Tomasi to the office. Orman was not handcuffed and was not asked about the gun during the walk. Upon reaching the security office, Ferragamo placed Orman under arrest for carrying a concealed weapon.⁴ After completing a records check, Ferragamo read Orman his Miranda rights and questioned him. According to Ferragamo, Orman confirmed his criminal history and explained that the gun belonged to his wife and that he took it into the mall because they did not want to leave it in their open air vehicle.⁵

Orman was charged in federal court with being a felon in possession of a handgun. He moved to suppress the seizure of the gun and statements made at the scene, arguing that Ferragamo lacked reasonable suspicion to detain him because (1) the APS employee tip was not reliable, and (2) the tip did not establish that Orman was committing a crime because carrying a concealed weapon is authorized under state law. He also argued that the encounter was not consensual and immediately custodial, requiring probable cause and Miranda warnings.

The district court granted the motion in part. It concluded that Ferragamo's conversation with Orman in the mall was consensual. Alternatively, the district court held that Ferragamo had reasonable suspicion to detain Orman. It also held that Orman was not subject to custodial interrogation in the mall. However, the district court concluded that Ferragamo lacked probable cause to arrest Orman because, at the time of arrest, Ferragamo did not know whether Orman had a permit to carry the weapon. The district court recognized that Orman's testimony—regarding Ferragamo asking him in the mall whether he had been busted or done hard time-arguably would establish probable cause for an arrest. However, it rejected Orman's version of the events. Accordingly, the district court ordered the suppression of information obtained from Orman upon his arrest at the security office.⁶

ANALYSIS

A. Standard of Review

Motions to suppress are reviewed de novo. United States v. Meek, 366 F.3d 705, 711 (9th Cir.2004). The district court's factual findings are reviewed for clear error. United States v. Bynum, 362 F.3d 574, 578 (9th Cir.2004).

B. The Conditions Precedent to a Lawful Protective Search

As a preliminary matter, we address Orman's contention advanced at oral argument that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), requires that Officer Ferragamo have reasonable suspicion that a crime was being committed before he could lawfully retrieve Orman's gun for officer safety purposes, even if the encounter was consensual.

Terry held that a brief investigatory detention, while constituting a seizure, is not a violation of the Fourth Amendment provided that the police officer has reasonable suspicion "that criminal activity may be afoot." Id. at 30, 88 S.Ct. 1868. Terry also held that in the course of a lawful investigatory stop, a police officer also may lawfully pat down the detained individual for weapons provided that the officer has reasonable suspicion that the person "may be armed and presently dangerous." Id. However, contrary to Orman's assertion, Terry did not cabin the use of officer safety patdowns to lawful investigatory detentions.

In United States v. Flippin, 924 F.2d 163 (9th Cir.1991), we rejected an argument similar to the position advanced by Orman. In Flippin, two police officers were in a woman's motel room pursuant to her consent. Id. at 164. An officer had visited her the previous day to determine the identity of her male companion who had been arrested for possession of drug paraphernalia. Id. When she would not produce her identification, the police returned the following day to investigate her identity. Id. Her male companion had been released from jail and was also present. Id. Upon entering the room, the police patted down the male for weapons. Id. When the male and one of the police officers left the room, the female grabbed a makeup bag, held it close to her, and refused to relinquish it. Id. The officer forcibly took the bag from her for fear that she was attempting to arm herself. Id. Based on the bag's weight, he suspected that it contained a loaded gun. Id. He opened the bag and found a gun and cocaine. Id.

We explained in Flippin that a Terry stop-and-frisk "constitutes two independent actions, each requiring separate justifications. The stop must be based on a suspicion of criminal activity and the frisk on a reasonable suspicion that the person is armed." Id. at 165 n. 2 (citing United States v. Thomas, 863 F.2d 622, 628 (9th Cir.1988)). We also explained that only the frisk portion of Terry was implicated in Flippin because the police officer's presence in the motel room was consensual. Id.

The defendant in Flippin argued that the constitutional hurdle to entering the motel room—i.e., a search or an arrest warrant or exigent circumstances—must be overcome before the police could undertake a protective weapon's search. We rejected this argument, holding that following a consensual entry, a probable cause predicate is not needed to undertake a weapon's patdown when reasonable suspicion exists that a person is armed. Id. at 165-66.

Flippin relied on Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), which allowed for a protective sweep of a residence for dangerous individuals following execution of an arrest warrant at the residence. In Buie, the Supreme Court explained that officer safety both during and after an arrest justifies the necessity of a protective sweep for dangerous persons to protect the officer from harm. Id. at 333-34, 110 S.Ct. 1093. Therefore, the Court recognized that a protective sweep is not limited to the patdown of lawfully seized individuals. Id. at 332-34, 334, 110 S.Ct. 1093 n. 2 (citing Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (holding the protective sweep of a glove box reasonable under Terry when officer...