631 F.3d 453 (8th Cir. 2011), 10-1030, United States v. Stewart

Docket Nº10-1030.
Citation631 F.3d 453
Opinion JudgeGRUENDER, Circuit Judge.
Party NameUNITED STATES of America, Appellee, v. Keith B. STEWART, Appellant.
AttorneyThomas J. Kangior, AUSA, argued, Omaha, NE, for appellant. Jeffrey Louis Thomas, AFPD, argued, Jennifer L. Gilg, AFPD, on the brief, Omaha, NE, for appellee.
Judge PanelBefore RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
Case DateFebruary 01, 2011
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 453

631 F.3d 453 (8th Cir. 2011)

UNITED STATES of America, Appellee,


Keith B. STEWART, Appellant.

No. 10-1030.

United States Court of Appeals, Eighth Circuit.

February 1, 2011

Submitted: Nov. 17, 2010.

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Thomas J. Kangior, AUSA, argued, Omaha, NE, for appellant.

Jeffrey Louis Thomas, AFPD, argued, Jennifer L. Gilg, AFPD, on the brief, Omaha, NE, for appellee.

Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

After deputies discovered crack cocaine in Keith Stewart's vehicle, a federal grand jury returned an indictment charging him with one count of knowingly and intentionally possessing with intent to distribute fifty grams or more of a mixture or substance containing a detectable amount of cocaine base, a violation of 21 U.S.C. § 841(a)(1), (b)(1). The district court sustained Stewart's motion to suppress the evidence derived from the deputies' search as violative of the Fourth Amendment to the United States Constitution. The Government appeals, and we reverse.


While on patrol at approximately 3:30 a.m. on March 11, 2009, Deputy Andrew Woodward of the Douglas County Sheriff's Office noticed a red sport utility vehicle (" SUV" ) parked in a Kwik Shop parking lot. According to Deputy Woodward, the area around the convenience store was " a hot spot for a lot of criminal activity," including robberies, thefts, and disturbances. Due to the late hour and the location, Deputy Woodward considered the SUV's presence to be suspicious; despite the extremely cold temperature, the vehicle was parked in a poorly lit area some distance from the Kwik Shop entrance. Deputy Woodward also testified that although the vehicle pulled up to a gas pump, he did not see anyone exit the vehicle to pump gas. The deputy acknowledged, however, that he left the Kwik Shop area for a brief period of time while the vehicle was parked at the gas pump. Deputy Woodward's suspicion led him to run a computer check on the vehicle's license plates, but the check revealed no adverse information.

After the SUV departed the Kwik Shop, Deputy Woodward lost sight of the vehicle. On the advice of another deputy, Jason Stehlik, Deputy Woodward searched for the SUV in a nearby neighborhood where, according to Deputy Stehlik, suspects had parked their vehicles after previous robberies

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at the Kwik Shop. Deputy Woodward soon located the SUV parked outside a house with its engine running. He positioned his cruiser behind the vehicle and illuminated his spotlight. He then approached the SUV and made contact with the man-later identified as Stewart-seated in the driver's seat. Deputy Woodward asked Stewart what he was doing in the area, and, according to Deputy Woodward, Stewart responded that he was meeting a female friend to aid her in " sneaking behind her husband's back." Later during the exchange, Stewart referred to his friend's previously described " husband" as her " boyfriend." Deputy Woodward also observed that Stewart was " [v]ery nervous[,] ... very fidgety, couldn't give ... straight direct answers," and refused to maintain eye contact during the interchange. Stewart explained his earlier presence at the Kwik Shop by stating that he had been assisting another friend who was having trouble with her car.

Upon Deputy Woodward's asking him to provide a form of identification, Stewart " reached into the center console, reached into ... the under part of his jacket, reached underneath the seat, and then did each one of those several more times." As a result, the deputy " became very fearful that [Stewart] possibly had a weapon on him" and began to unholster his service weapon. Stewart eventually located his commercial driver's license in his rear pocket and provided it to Deputy Woodward without incident. Deputy Woodward then returned to his cruiser, contacted Deputy Stehlik to request back-up, and ran a check on the license. The check indicated that Stewart had a prior felony conviction and " some type of drug history and some type of violent behavior," although there were no active warrants for his arrest and no problems with his license.

Deputy Stehlik arrived soon after. The two deputies briefly conferred, during which time Deputy Stehlik observed Stewart, still seated in his vehicle, " motioning towards the center console and then underneath the seat several times." Deputies Woodward and Stehlik then approached the SUV and instructed Stewart to exit the vehicle. Although the video device in Deputy Woodward's cruiser recorded the interaction, neither Deputy Woodward nor Deputy Stehlik activated his microphone. Deputy Woodward patted Stewart down for weapons, opened Stewart's coat, and reached into his pockets. Deputy Woodward later testified that Stewart verbally consented to the search of his pockets, although Stewart denies that he gave consent. In one of Stewart's pockets, Deputy Woodward found an item of drug paraphernalia-a mesh pipe filter. Although the deputies did not intend to arrest Stewart for possessing the filter,1 Deputy Stehlik escorted Stewart to one of the cruisers to fill out a field interview card while Deputy Woodward entered Stewart's SUV and searched the immediate area around the driver's seat for weapons. Inside the center console, Deputy Woodward located a bag in which he discovered crack cocaine, a scale, and several bundles of currency.

Based on the drugs seized from the vehicle, a federal grand jury returned a one-count indictment charging Stewart with knowingly and intentionally possessing with intent to distribute fifty grams or more of a mixture or substance containing a detectable amount of cocaine base.

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Stewart entered a plea of not guilty and filed a motion to suppress the crack cocaine, arguing that Deputy Woodward's search of his vehicle violated the Fourth Amendment. A magistrate judge recommended that the motion to suppress be denied, but the district court sustained the motion. United States v. Stewart, 675 F.Supp.2d 973 (D.Neb.2009). The Government now appeals, arguing that the search of Stewart's vehicle was constitutional as a protective search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).


The Fourth Amendment guarantees " [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Although the Fourth Amendment prevents police officers from seizing a person without a reasonable suspicion of criminal activity, scrutiny under the amendment is not triggered by a consensual encounter between an officer and a citizen. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). A seizure does not occur " simply because a police officer approaches an individual and asks a few questions," id., so long as " a reasonable person would feel free ‘ to disregard the police and go about his business,’ " id. (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions and request to examine his or her identification. Id. at 435, 111 S.Ct. 2382. " Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘ seizure’ has occurred." Id. at 434, 111 S.Ct. 2382 (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868).

The district court concluded that Deputy Woodward's initial encounter with Stewart was consensual. Stewart does not meaningfully contest this determination on appeal, and, in any event, we agree with the district court's characterization of the initial encounter as consensual. See United States v. Carpenter, 462 F.3d 981, 985-86 (8th Cir.2006). Likewise, we agree with the district court that the deputies' conduct subsequently triggered Fourth Amendment scrutiny when they directed Stewart to exit his SUV and commenced the protective search. See United States v. Gray, 213 F.3d 998, 1000 (8th Cir.2000) (" A protective frisk is both a search and a seizure for Fourth Amendment purposes." ). The Fourth Amendment inquiry as to whether a protective search was reasonable must focus on the circumstances confronting the officer when he made the decision to search. United States v. Davis, 202 F.3d 1060, 1063 (8th Cir.2000). In this case, then, we must evaluate the constitutionality of the deputies' conduct as of the moment they began the protective search. Cf. id. at 1062 (" [C]onduct after an investigative stop begins cannot supply the reasonable suspicion needed to justify the stop." ).


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