U.S. v. Pajari

• Decision Date: 31 August 1983
• Docket Number: No. 83-1152,83-1152
• Citation: 715 F.2d 1378
• Parties: UNITED STATES of America, Appellee, v. Lowell John PAJARI, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1378

715 F.2d 1378

UNITED STATES of America, Appellee, v. Lowell John PAJARI, Appellant.

No. 83-1152.

United States Court of Appeals Eighth Circuit.

Submitted June 16, 1983.

Decided Aug. 31, 1983.

James M. Rosenbaum, U.S. Atty., Donald M. Lewis, Asst. U.S. Atty., Dist. of Minn., Minneapolis, Minn., Kevin L. Holden, Legal Intern, for appellee.

Meshbesher, Singer & Spence, Ltd., Kenneth Meshbesher, Carol Grant, Minneapolis, Minn., for appellant.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, and ROSENN, ^* Senior Circuit Judges.

FLOYD R. GIBSON, Senior Circuit Judge.

Lowell John Pajari was convicted after a court trial on stipulated facts of one count of possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1976). Pajari also pleaded guilty to making a false income tax return in 1977 in violation of 26 U.S.C. § 7206(1) (1976). ¹ Pajari appeals claiming the district court ² erred in refusing to suppress evidence--an ounce of cocaine--allegedly seized as a result of an illegal arrest. Pajari also contends that his statutory and constitutional speedy trial rights were violated. For the reason set forth herein, we reject these contentions and affirm.

I.

The evidence presented at the suppression hearing included the search warrant affidavit of D.E.A. Special Agent Lewis, and the testimony of the arresting officers, Hennepin County Detective Fontana and D.E.A. Special Agent Bauer. Pajari did not testify at the suppression hearing. The suppression hearing evidence revealed that D.E.A. agents in Minneapolis had been investigating Pajari's suspected cocaine trafficking since 1974. By March 1980, at least four confidential informants had provided information to D.E.A. agents regarding Pajari's narcotics transactions, indicating that Pajari acquired large quantities of cocaine from California and in turn sold the cocaine to local dealers from his rural residence in Prior Lake, Minnesota.

On March 24 and 25, 1980, one of the confidential informants assisted D.E.A. agents by making two controlled purchases of cocaine from a dealer, John Schepers, who obtained cocaine from Pajari's Prior Lake residence. During both purchases, the informant-purchaser was followed by agents to Schepers' home. After meeting with the informant-purchaser, Schepers would leave his home, drive to Pajari's Prior Lake residence, stay for about ten minutes and then return to his own home where he would deliver an ounce of cocaine to the informant. This information formed the basis for the issuance of a search warrant on March 25, authorizing the search of Pajari's Prior Lake residence.

Also on March 25, following the informant's purchase of cocaine from Schepers, the informant told Detective Fontana that Pajari would be leaving his residence in the late afternoon of that day to pick up a quantity of cocaine. Earlier, Fontana had learned of the informant's purchases of cocaine from Schepers and was aware that a search warrant had been secured authorizing the search of Pajari's residence.

Detective Fontana testified that surveillance officers, who had been staking out Pajari's residence since Schepers' earlier visits, observed Pajari leaving his residence shortly after 5 P.M. The officers followed Pajari to an apartment building in Mounds, Minnesota, and observed Pajari enter the building where he stayed for twenty minutes. As Pajari left the building in his car, one of the surveillance officers reported to Fontana that Pajari appeared nervous and was looking about as if he suspected he was being followed. Shortly thereafter, Fontana and D.E.A. Agent Bauer, who were driving an unmarked car, picked up on Pajari's trail and followed him as he pulled into a parking lot and parked his car. Fontana testified that the officers did not stop Pajari's car but simply parked behind his car.

By the time Officers Fontana and Bauer had parked behind Pajari's car, they knew that a search warrant had been secured authorizing the search of Pajari's residence. The two agents then approached Pajari while he was still in his car. Fontana testified that the purpose in approaching Pajari was to inform him of the search warrant for his residence and to request his presence during its execution. Agent Fontana testified at this point he did not know whether there was probable cause to arrest Pajari.

As they walked toward Pajari's car, both officers observed Pajari place his hands down in front of the seat near the area of his feet. As a result, Detective Fontana, fearing that Pajari was reaching for a weapon, ordered Pajari to put his hands up and exit from the car. After Pajari exited his car, Fontana conducted a protective pat-down search of Pajari. Both officers observed Pajari's pants' cuff up around the top of his right boot and a plastic baggie containing a white powdered substance sticking out of the top of the boot. Detective Fontana removed the baggie during the protective pat-down search. Pajari was then placed under arrest and the seized package was determined to contain an ounce of cocaine. Upon execution of the search warrant at Pajari's later that day, agents discovered numerous items associated with drug use and trade, including firearms.

On March 26, 1980, Pajari was formally charged by complaint with possession of an ounce of cocaine with the intent to distribute in violation of 18 U.S.C. § 841(a)(1). On April 1, 1980, upon the application of the government, the complaint was dismissed without prejudice to permit further investigation by the D.E.A. In September 1980, the United States Grand Jury, based upon information supplied to the Internal Revenue Service by the D.E.A., began an investigation into possible tax evasion charges against Pajari on income derived from the distribution of drugs. On August 5, 1982, the Grand Jury returned a five-count indictment. Pajari's pretrial suppression motions were heard on August 26 and September 2, 1982, and denied. On October 18, 1982, Pajari pleaded guilty to one count of filing a false income tax return in 1977 (26 U.S.C. § 7206(1)) and was also found guilty, after a court trial on stipulated facts, of one count of possession with the intent to distribute an ounce of cocaine. (21 U.S.C. § 841(a)(1)). At that time, Pajari expressly reserved his right to appeal the district court's dismissal of his motion to suppress evidence seized as a result of his arrest on March 25, 1980, and the dismissal of his speedy trial claim.

II.

Pajari's principal contention on appeal is that Officers Fontana's and Bauer's initial approach to Pajari's car amounted to an unlawful seizure, supported by neither probable cause nor reasonable articulable suspicion that Pajari had engaged in any criminal wrongdoing. Pajari alternatively suggests that even if the initial approach was not a seizure, the officers had no reason to believe that Pajari was armed and dangerous so as to justify the pat-down search for weapons. Pajari thus concludes that the cocaine seized was the fruit of an illegal arrest and should have been suppressed.

A police encounter constitutes a seizure sufficient to trigger fourth amendment protections only if, in view of all of the circumstances surrounding the incident, a reasonable person, innocent of any crime, would have believed he was not free to leave. United States v. Wylie, 569 F.2d 62, 68 (D.C.Cir.1977); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Stewart, J.), 560 n. 1 (Powell, J. concurring). As the Court in Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968) noted:

Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. 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.

In United States v. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877, Justice Stewart gave the following examples of kinds of circumstances that would indicate a demonstration of force or authority sufficient to constitute a seizure:

the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

In this case, we conclude that there was no "seizure" or "stop" until Pajari was ordered to raise his hands and leave his car, which was prompted by Detective Fontana's reasonably based fear that Pajari was reaching for a weapon. Only at the point when Pajari was ordered to raise his hands and exit the car was there any demonstration of force or authority creating a reasonable apprehension on Pajari's part that his freedom of movement was restrained. The uncontradicted testimony of both arresting officers established that Pajari stopped his car voluntarily, without any coercive action being taken by the officers. When the officers approached Pajari's car, they neither summoned Pajari nor had their guns drawn. The main purpose in approaching Pajari was to inform him of the impending search of his residence and to request his presence during that search.

Pajari, however, points out that the officers could have made this request when he first left his house and they did not have to wait until he had parked his car. He accordingly suggests that this delay indicates the officers really intended to arrest or detain him for his suspected criminal activities rather than to merely request his presence at the search warrant execution. First, we note that the record reveals that any delay between the officers' knowledge of the existence of the search warrant and the initial approach to Pajari was of a very short duration. Moreover, this delay does not necessarily show that the officers' stated reason for approaching Pajari was pretextual. Certainly surveillance officers are...