U.S. v. Sanders
| Decision Date | 18 June 1993 |
| Docket Number | No. 92-8309,92-8309 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert Earl SANDERS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
T. Bradley Cates (Court-appointed), Waco, TX, for defendant-appellant.
Richard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.
Defendant-Appellant Robert Earl Sanders appeals his conviction as a felon in possession of a firearm, alleging that the district court improperly denied his motion to suppress evidence seized following a warrantless stop and frisk of his person. Finding no reversible error, we affirm.
While on patrol alone in his squad car one afternoon in December 1990, Waco Police Officer John Hambrick was dispatched by radio to Cruz's Grocery Store to investigate a complaint that a suspicious person with a gun was on the premises of that business. Cruz's Grocery sells alcoholic beverages and is located in a residential area known for its high rate of crimes involving both violence and weapons. Mr. Cruz, the grocery store owner, had called the police on previous occasions about disturbances and suspicious persons at his business.
The dispatcher advised Officer Hambrick that Mr. Cruz had called in the complaint, describing the armed individual as a black Officer Hambrick stopped his car, opened the door, drew his duty weapon and, taking cover behind the open door, told Sanders to stop and to get down on the ground. Sanders stopped but refused to lie down. Even though Officer Hambrick repeated his commands, Sanders never got down on the ground.
male wearing a blue baseball cap and a tan jacket. Officer Hambrick drove to Cruz's in approximately two to three minutes. Upon his arrival he observed eight to ten persons outside of the store. This group comprised at least two children as well as Sanders. He alone matched Mr. Cruz's description of the gunman. Sanders's tan jacket was long enough to cover the waistband of his pants. As Officer Hambrick neared the store, he could see that Sanders was holding a paper bag containing what appeared to be a bottle of some alcoholic beverage. The officer also noticed that Sanders turned and started walking away when he saw the police car approaching
Within less than a minute Officer Roy Luna arrived to backup Officer Hambrick. Officer Hambrick kept his gun trained on Sanders while he was handcuffed by Officer Luna. Officer Hambrick then reholstered his gun and approached Sanders to frisk him for weapons. Officer Hambrick first removed a lock blade folding hunting knife from Sanders's back right pocket. Officer Hambrick had seen this knife visibly protruding from the top of that pocket when he approached to frisk Sanders, but had not been able to see it earlier.
Sanders asked Officer Hambrick why he (Sanders) was being arrested. Officer Hambrick told Sanders that he was not under arrest; that the police had received a call about Sanders being in Cruz's and carrying a gun, and that he (Officer Hambrick) was frisking Sanders for weapons. Sanders then volunteered that he had a gun, but had not done anything with it. Immediately after Sanders made this statement, Officer Hambrick found a fully loaded Raven .25 caliber pistol in the right pocket of Sanders's tan jacket and removed it. A Raven .25 caliber pistol is a small handgun that can easily be concealed without producing a tell-tale bulge; it is a type of gun commonly encountered by the police.
After completing this frisk and determining that Sanders did not possess any additional firearms or dangerous objects, Officer Hambrick unloaded the Raven pistol and secured it. He then formally placed Sanders under arrest for the state offense of unlawfully carrying a weapon in an establishment licensed for the sale of alcoholic beverages. 1
When Sanders was determined to have three prior felony convictions, he was indicted for possession of a firearm by a felon under 18 U.S.C. §§ 922(g)(1) and 924(a). Following the district court's denial of Sanders's pretrial motion to suppress the gun from being introduced into evidence on the ground that it was the fruit of an illegal search and seizure, he was tried before a jury and convicted on the firearms charge. He timely appealed.
Sanders argues that the district court erroneously denied his motion to suppress the gun that had been removed from his pocket. He does not contest the validity of his initial stop and detention, but instead insists that the police exceeded the permissible scope of such a Terry stop by holding him at gunpoint and handcuffing him before frisking him. Sanders claims that this conduct transformed the stop into a de facto arrest that was illegal because it was not supported by probable cause. He concludes that, as the search of his person cannot be upheld as either a proper frisk or incident to a legal arrest, the gun should be suppressed.
The standard of review for a district court's action on a motion to suppress is well established in this circuit. Questions of law In reviewing a trial court's ruling on a motion to suppress based on live testimony at a suppression hearing, the trial court's purely factual findings must be accepted unless clearly erroneous, or influenced by an incorrect view of the law, and the evidence must be viewed in the light most favorable to the party prevailing below, except where such a view is either not consistent with the trial court's findings or is clearly erroneous considering the evidence as a whole. 3
are reviewed de novo; 2 questions of fact are treated more deferentially
Twenty-five years after the Supreme Court's opinion in Terry v. Ohio, 4 it is now axiomatic that the police are allowed to stop and briefly detain persons for investigative purposes if the police have a reasonable suspicion supported by articulable facts that criminal activity "may be afoot." 5 This reasonable suspicion standard is less demanding than the probable cause standard required for an arrest. 6
The importance of Terry, however, is not limited to that one holding. Of equal significance, Terry identified the circumstances in which the police are permitted to conduct a carefully limited search of such persons to discover weapons that might be used to assault the officer. 7 A police officer may conduct such a limited search if "a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger." 8 Such a belief must be founded on specific and articulable facts rather than on a mere suspicion or "hunch." 9 In so holding, the Court acknowledged:
We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly, it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. 10
The Terry opinion further instructs how its namesake stop and frisk may be conducted and how they should be reviewed by the courts. If an officer develops--and is able to articulate--reasonable grounds to believe that a suspect is armed and presently dangerous to the officer, third parties, or himself, the officer may "take swift measures to discover the true facts and neutralize the threat of harm if it materialized." 11 In determining whether the officer's response to the perceived threat was reasonable, a court must give due weight to the specific reasonable inferences that the officer is entitled to draw from the facts in light of his experience and training. 12
Supreme Court opinions subsequent to Terry have amplified these basic lessons. In Florida v. Royer, a plurality of the Supreme Court stated that an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the In Sharpe, the court stated that, even though the length of an investigatory detention is an important factor in determining whether that detention is proper, "we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes." 15 Further, although questioning whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly is appropriate, "[a] court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing." 16
stop, and that the police should use the least intrusive means reasonably available to verify or dispel their suspicions in a short period of time. 13 In turn, the proper interpretation of these statements was explained by the Court in United States v. Sharpe. 14
The fact that the protection of the public might, in the abstract, have been accomplished by 'less intrusive' means does not, by itself render the search unreasonable. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize it or to pursue it. 17
The use of some force by a police officer does not necessarily cause an encounter to exceed the scope of Terry, which itself involved the use of force. There the officer physically grabbed the suspect and spun him around before frisking him for weapons. 18 And, since Terry, the Supreme Court...
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