486 F.3d 1170 (9th Cir. 2007), 06-10398, United States v. Orman

Docket Nº:06-10398.
Citation:486 F.3d 1170
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Dale Washington ORMAN, Defendant-Appellant.
Case Date:May 22, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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486 F.3d 1170 (9th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Dale Washington ORMAN, Defendant-Appellant.

No. 06-10398.

United States Court of Appeals, Ninth Circuit.

May 22, 2007

Argued and Submitted April 18, 2007

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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 DC. No. CR-05-00403-DGC

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

OPINION

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

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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

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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...

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