990 F.2d 1552 (10th Cir. 1993), 92-2142, United States v. King

Docket Nº:92-2142, 92-2173.
Citation:990 F.2d 1552
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Terry KING and Valerie Jean Burdex, Defendants-Appellees.
Case Date:March 26, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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990 F.2d 1552 (10th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellant,

v.

Terry KING and Valerie Jean Burdex, Defendants-Appellees.

Nos. 92-2142, 92-2173.

United States Court of Appeals, Tenth Circuit

March 26, 1993

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Michael Edmund O'Neill, U.S. Dept. of Justice, Crim. Div., Appellate Section, Washington, DC (Don J. Svet, U.S. Atty., and James D. Tierney, Asst. U.S. Atty., Albuquerque, NM, with him on the brief), for plaintiff-appellant.

Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellee Terry King.

Angela Arellanes, Albuquerque, NM, for defendant-appellee Valerie Jean Burdex.

Before LOGAN, ANDERSON and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

The government appeals the district court's orders suppressing evidence as the fruit of an unlawful seizure of Defendants Terry King and Valerie Jean Burdex. The

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district court found that the police officer who seized Defendants lacked a reasonable suspicion that they were involved in criminal activity; therefore, Defendants' detention violated the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). The government contends that the officer's conduct was reasonable under the circumstances and therefore did not violate the Fourth Amendment. The government also argues that even if the officer's conduct violated the Fourth Amendment, the drugs, which were discarded by Burdex, were not the fruit of the unlawful detention. Our jurisdiction arises under 18 U.S.C. § 3731, and, in reviewing the district court's order, we consider the evidence in a light most favorable to Defendants. United States v. Horn, 970 F.2d 728, 731 (10th Cir.1992).

I.

On April 30, 1992, at approximately 1:15 p.m., Officer LeMasters of the Albuquerque Police Department arrived at the scene of a traffic accident at a busy intersection. One of the vehicles involved in the accident remained disabled in the intersection, impeding the flow of traffic such that only one to two vehicles per traffic light could proceed, and several bystanders had gathered around the intersection. While investigating the accident, Officer LeMasters' attention was diverted by a car with heavily tinted windows. The driver was honking his horn incessantly, apparently in an effort to prompt the preceding driver to proceed through the congested intersection. Officer LeMasters testified that she approached the car in order to inform the driver of the hazardous conditions and advise him to refrain from using his horn. As she approached the car, the driver, King, ceased honking, partially rolled down his window, and apologized for the commotion claiming that he was merely trying to get through the intersection. Officer LeMasters then observed a nine millimeter pistol, with a clip inside the weapon, on the driver's seat, partially tucked under King's right thigh. State law permits motorists to carry loaded weapons, concealed or otherwise, in their vehicles. See N.M.Stat.Ann. § 30-7-2(A)(2) (Michie Supp.1992). Officer LeMasters also observed Burdex in the passenger seat whom she had not seen earlier due to the tinted windows.

Upon observing the pistol on the front seat, Officer LeMasters drew her service revolver, pointed it at King, and ordered him to place his hands on the steering wheel, threatening to shoot him if he did not comply with her order. Officer LeMasters testified that, while she did not suspect Defendants of being engaged in any criminal activity, she took this action out of concern for the safety of herself and the bystanders, despite the fact that King had not made any threatening gesture or sudden movement. While holding her revolver on King, Officer LeMasters radioed for assistance. Within a minute, Officer Palone arrived, pulling her patrol car directly in front of King's car. Officer Palone ordered King to exit the vehicle while keeping his hands in view, and King complied. Defendant Burdex also exited the vehicle on the passenger side, despite having been ordered to remain in the car. Officer Armijo, who had also responded to the call for backup assistance, joined Officer LeMasters at the rear of King's vehicle armed with a shotgun, and ordered Burdex onto a dirt area approximately twenty-five feet from the car, and she complied. Meanwhile, Officer Palone ordered King to move backwards and get down on his knees which he did. Officer LeMasters handcuffed King, while Officer Armijo removed the pistol from the front seat.

As the officers were busy securing King, Burdex, who had moved into the dirt area at Officer Armijo's request, removed a bag from her pants and dropped it near a utility box. Two bystanders who observed the incident informed the officers which led Officer Armijo to retrieve a bag containing drugs. The officers advised Defendants that they were under arrest for drug possession, and a search incident to arrest uncovered $2,700 under the driver's side floor mat and $400 in King's boot.

A federal grand jury indicted Defendants

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for various drug and weapons offenses. 1 Defendants moved to suppress the drugs, gun, money and statements as the fruit of an unlawful seizure of their persons. Following an evidentiary hearing, the district court, recognizing that state law permitted motorists to carry loaded guns in their vehicles, see N.M.Stat.Ann. § 30-7-2(A)(2) (Michie Supp.1992), found that Officer LeMasters lacked a reasonable suspicion that Defendants were engaged in criminal activity thereby rendering their detention unlawful under Terry. The district court also found that the evidence was the fruit of the unlawful detention, and therefore must be suppressed.

II.

At the outset, it is important to note the limited scope of the government's appeal. The government does not contest the district court's finding that Officer LeMasters lacked a reasonable suspicion of criminal activity. Accordingly, we express no opinion on whether a police officer's observation of an apparently loaded pistol partially tucked under a motorist's leg would support a reasonable suspicion that the motorist was engaged in criminal activity other than to note that the state law permitting motorists to carry guns in their vehicles, N.M.Stat.Ann. § 30-7-2(A)(2) (Michie Supp.1992), is not dispositive on the issue. See Reid v. Georgia, 448 U.S. 438, 442, 100 S.Ct. 2752, 2754-55, 65 L.Ed.2d 890 (1980) (per curiam) ("[W]holly lawful conduct might justify the suspicion that criminal activity was afoot."). Rather, the government argues that Officer LeMasters' conduct must be judged under a reasonableness standard, and her conduct was reasonable in light of the circumstances. Because the government's challenge is limited to the proper legal standard and the reasonableness of the officer's conduct, our review is de novo. See United States v. Evans, 937 F.2d 1534, 1536-37 (10th Cir.1991) ("[U]ltimate determinations of reasonableness under the Fourth Amendment, and other questions of law, are reviewed de novo.").

A.

"[T]he Fourth Amendment's protection against 'unreasonable ... seizures' includes seizure of the person." California v. Hodari D., --- U.S. ----, ----, 111 S.Ct. 1547, 1549, 113 L.Ed.2d 690 (1991) (citation omitted). Of course, not all police-citizen encounters implicate the Fourth Amendment. See, e.g., Michigan v. Chesternut, 486 U.S. 567, 574-76, 108 S.Ct. 1975, 1980-81, 100 L.Ed.2d 565 (1988); INS v. Delgado, 466 U.S. 210, 218-21, 104 S.Ct. 1758, 1763-65, 80 L.Ed.2d 247 (1984). See generally United States v. Bloom, 975 F.2d 1447, 1450-56 (10th Cir.1992). "[M]ere police questioning does not constitute a seizure." Florida v. Bostick, --- U.S. ----, ----, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). Moreover, " 'law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place....' " Id. (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion)). Rather, a person is seized for Fourth Amendment purposes when, considering all the surrounding circumstances, the police conduct "would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Id. at ----, 111 S.Ct. at 2389. Applying this standard to the case before us, we have little doubt that both King and Burdex were seized when Officer LeMasters ordered King at gunpoint to place his hands on the steering wheel or else be shot as such conduct would communicate to both persons in the car that they were not free to decline Officer LeMasters' request or otherwise terminate the encounter.

Be that as it may, the protection of the Fourth Amendment does "not ... guarantee against all ... seizures, but only

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against unreasonable ... seizures." United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). Prior to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Fourth Amendment seizures of the person were analyzed in terms of arrest, and reasonable only if supported by probable cause. See Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979). Terry was the first case to recognize that "the Fourth Amendment governs 'seizures' of the person ... [other than] arrests," 392 U.S. at 16, 88 S.Ct. at 1877, and created a "narrowly drawn" exception to the probable cause requirement for lesser government intrusions into an individual's liberty. Id. at 27, 88 S.Ct. at 1883. See also Royer, 460 U.S. at 499, 103 S.Ct. at 1325 ("Terry and its progeny ... created only limited exceptions to the general rule that seizures of the person require probable cause to arrest.").

In Terry, a...

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