U.S. v. Albert

• Decision Date: 01 September 2009
• Docket Number: No. 07-4193.,07-4193.
• Citation: 579 F.3d 1188
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael ALBERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

579 F.3d 1188

UNITED STATES of America, Plaintiff-Appellee, v. Michael ALBERT, Defendant-Appellant.

No. 07-4193.

United States Court of Appeals, Tenth Circuit.

September 1, 2009.

Submitted on the Briefs: Stephen J. Sorenson, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with him on the briefs), Salt Lake City, UT, for Plaintiff-Appellee.

Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender, with him on the briefs) for Defendant-Appellant.

Before KELLY, EBEL, and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

Michael Albert was convicted of being a felon in possession of a firearm following the discovery of a shotgun and shells (later determined to be his) during a search of the vehicle in which he was traveling. He moved to suppress the weapon and ammunition as well as statements he made to police, arguing he was illegally arrested and the evidence was the fruit of a constitutional violation. The district court denied his motion. We affirm.

I. BACKGROUND

At approximately 1:30 p.m. on August 22, 2006, Sandy City Police Officer Amy DeNeff conducted a traffic stop of a white Oldsmobile Alero after observing it make an illegal lane change. DeNeff approached the vehicle when it came to a stop and asked the driver, Rachel Sermon, for her license, registration and proof of insurance. Sermon provided a temporary registration but stated she did not have identification and the vehicle was not insured because it had been recently purchased and she was still shopping around for insurance. DeNeff also requested identification from the passenger, Michael Albert, whom she observed was not wearing a seatbelt. Albert produced a temporary Utah identification card. DeNeff asked Sermon and Albert to wait in the vehicle while she verified their information.

Through her initial computer check, DeNeff located two outstanding warrants for Sermon. She also discovered both Sermon and Albert's driver's licenses had been suspended. After the arrival of two back-up officers, Sermon was arrested because of the outstanding warrants and placed in the backseat of a patrol car. Albert was asked to step out of the vehicle and stand next to one of the back-up officers, away from the Oldsmobile, while DeNeff searched the vehicle's interior incident to Sermon's arrest.

After approximately five to ten minutes of searching, Officer DeNeff located a black gym bag in the back passenger seat which contained a crystalline substance, later determined to be methamphetamine, along with a scale, a marijuana pipe and multiple syringes.¹ Following the discovery of the drugs, DeNeff radioed to Brent Webb, one of the back-up officers, and requested he place Albert into custody. Webb handcuffed Albert and searched his person, discovering a rubber tourniquet in his front pocket.

At that point, DeNeff began to inventory the vehicle's contents in preparation for it to be impounded pursuant to Sandy City Police Department policy. She made the decision to impound the vehicle prior to the discovery of the methamphetamine because the vehicle was located on private property and the owners of the business on the property requested it be removed. At the suppression hearing, DeNeff testified she did not consider turning the car over to Albert because his license had been suspended and the car was not insured. She could not recall who owned the Oldsmobile, though she was "sure [she] knew" at the time. (R. Vol. II at 23.)

During the inventory of the trunk, DeNeff discovered a shotgun wrapped in a blanket. The blanket was tied by a sock with seven shotgun shells inside. After discovering the weapon, she ran a criminal history check on both Sermon and Albert to determine whether either was restricted from possessing a weapon. The criminal history check indicated Albert was a convicted felon. At that point, approximately twenty minutes after he was handcuffed, DeNeff advised Albert of his Miranda² rights. He waived his rights and, in response to questioning, admitted he knew the shotgun was in the trunk. He explained the shotgun belonged to his mother's boyfriend and he was merely transporting it for him. He knew he could not shoot firearms, but believed he could possess them. In separate questioning, Sermon admitted to possessing the drugs.

Sermon was arrested for possessing the drugs and Albert was arrested for possessing the shotgun and drug paraphernalia found on his person. Sermon and Albert were transported to the police station where they were interviewed by Sergeant Troy Arnold after again being advised of their Miranda rights. During his interview, Albert again admitted to possessing the shotgun. Sermon initially claimed the shotgun was hers, but recanted when she was told Albert admitted it belonged to him.

Albert was charged by indictment with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).³ He filed a motion to suppress the shotgun and shells seized from the car and the statements he made to police arguing: (1) the evidence and statements were the "fruit of an illegal arrest;" and (2) his Miranda waiver was "not knowing and voluntary." (R. Vol. I, Doc. 18 at 2.) The court held a suppression hearing, at which Officer DeNeff, Officer Arnold, and Albert testified. Albert's testimony was limited to his mental and physical state at the time of his arrest.⁴ Following the suppression hearing, Albert and the government submitted briefs in support of their respective positions. Albert conceded his Miranda argument, leaving only the alleged Fourth Amendment violation.

The district court denied Albert's motion, concluding the officers' detention of Albert following the discovery of methamphetamine in the vehicle was reasonable under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the use of handcuffs did not transform the detention into an illegal arrest. The court reasoned the officers were entitled to preserve the status quo and take reasonable steps to ensure their safety. The court did not specifically address the search of Albert's person. Because the court determined Albert was not illegally arrested, it did not consider whether the evidence seized from the vehicle and the statements he made to the police should be suppressed for that reason.

Following the denial of his motion to suppress, Albert filed a written stipulation admitting the facts necessary for a conviction but preserving his right to appeal. The court found Albert guilty after a bench trial and sentenced him to 94 months imprisonment, just below the advisory guideline range. Albert filed a timely notice of appeal.

Albert maintains the officers' handcuffing and searching him amounted to an illegal arrest.⁵ The government contends the district court correctly concluded Albert was detained, not arrested, prior to the discovery of the shotgun and ammunition and his incriminating statements. The government also argues that, regardless of whether Albert was lawfully detained or illegally arrested, the shotgun and ammunition should not be suppressed because: (1) they were discovered in the trunk, which the officers had probable cause to search following the discovery of drugs in the passenger compartment; and (2) they were discovered pursuant to a valid inventory search. Albert contends we should not consider whether the discovery of the methamphetamine provided the police with probable cause to search the trunk because the government raises this issue for the first time on appeal. As for the inventory search, Albert argues it cannot provide a basis for denying his motion to suppress because DeNeff lacked justification for impounding the vehicle.

II. DISCUSSION

"In reviewing the denial of a motion to suppress, we accept the factual findings of the district court unless they are clearly erroneous. The ultimate determination of reasonableness under the Fourth Amendment is a question of law, which we review de novo." United States v. Contreras, 506 F.3d 1031, 1035 (10th Cir.2007) (citation omitted).

A. Fourth Amendment Analysis

In Terry v. Ohio, the Supreme Court held a police officer can temporarily detain an individual suspected of criminal activity if the officer can point to "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. at 21, 88 S.Ct. 1868. "Since police officers should not be required to take unnecessary risks in performing their duties, they are `authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of [a Terry] stop.'" United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993) (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). "An encounter between police and an individual which goes beyond the limits of a Terry stop, however, may be constitutionally justified only by probable cause or consent." Id.

The government does not contend the officers had probable cause to arrest Albert following the discovery of the drugs. Instead, it argues the detention was not an arrest and thus, need not have been supported by probable cause. The question presented on appeal is whether the handcuffing of Albert, search of his person and subsequent detention were permissible under Terry. "There is no bright-line rule to determine whether the scope of police conduct was reasonably related to the goals of the stop; rather our evaluation is guided by common sense and ordinary human experience." United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994) (quotations omitted). We avoid "unrealistic second-guessing of police officers' decisions in this regard and thus do not require them to use the least intrusive means in the course of a detention, only reasonable ones." Id. (quotations omitted). "In measuring the actions of a police...