Burrell v. McIlroy

• Decision Date: 19 September 2005
• Docket Number: No. 02-15114.,02-15114.
• Citation: 464 F.3d 853
• Parties: Stephen BURRELL, Plaintiff-Appellant, v. Mike McILROY; Glen C. Rector; Jeff Thorpe, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

464 F.3d 853

Stephen BURRELL, Plaintiff-Appellant, v. Mike McILROY; Glen C. Rector; Jeff Thorpe, Defendants-Appellees.

No. 02-15114.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 13, 2004.

Filed September 19, 2005.

Amended September 20, 2006.

Plaintiff-appellant was represented by Steven A. Engel and Susan Kearns of Kirkland & Ellis LLP of Washington, D.C.

Defendants-appellees were represented by Peter Angulo of Las Vegas, Nevada, at oral argument, and by Thomas D. Dilliard, Jr., and Lilli C. Hitt of Rawlings, Olson, Cannon, Gormley & Desruisseaux of Las Vegas, NV, on the briefs.

Appeal from the United States District Court for the District of Nevada; Kent J. Dawson, District Judge, Presiding. D.C. No. CV-99-01612-KJD.

Before JAMES L. OAKES,^* ANDREW J. KLEINFELD, and CONSUELO M. CALLAHAN, Circuit Judges.

ORDER AND AMENDED OPINION

CALLAHAN, Circuit Judge.

ORDER

The opinion and dissent filed on September 19, 2005, and published at 423 F.3d 1121 (9th Cir.2005) are hereby amended. An amended opinion and dissent are to be filed concurrently with this order.

With the filing of the amended opinion and dissent, Judges Kleinfeld and Callahan have voted to deny the petition for rehearing and suggestion for rehearing en banc. Judge Oakes voted to grant the petition for rehearing.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is DENIED. No subsequent petitions for rehearing or petitions for rehearing en banc may be filed.

OPINION

Stephen Burrell (Burrell) appeals the district court's grant of summary judgment on behalf of various detectives of the Las Vegas Metropolitan Police Department in this 42 U.S.C. § 1983 action. This court reviews the grant of summary judgment de novo, and may affirm on any basis supported by the record. Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir.2003); Hell's Angels Motorcycle Corporation v. McKinley, 360 F.3d 930, 931 n. 1 (9th Cir.2004).We have jurisdiction under 28 U.S.C. § 1331, and we affirm.

I

Burrell, a felon with a lengthy history of arrests, was suspected by the Las Vegas Metropolitan Police Department of possessing illegal weapons and drugs. On February 4, 1999, Detective McIlroy applied for a search warrant to search Burrell's apartment on 1750 Karen Avenue. In the affidavit in support of the search warrant, Detective McIlroy stated that he had obtained current and past information from reliable informants that led him to believe that Burrell was trafficking in drugs and possessed firearms.

Detective McIlroy indicated that, in December of 1998, he was contacted by a reliable informant, who told him that "Burrell often travels to California and purchases cocaine which he in returns [sic] brings back to Las Vegas for resale." On December 19, 1998, police arrested Burrell after he shot his then-girlfriend in the leg during a domestic dispute. Burrell admitted to officers to possessing a gun and shooting his girlfriend. Detectives recovered two handguns and more than four grams of cocaine during this incident. Burrell was ultimately charged with trafficking cocaine, battery with a deadly weapon, and two counts of being an ex-felon in possession of a firearm.

On February 3, 1999, the day before Detective McIlroy applied for the search warrant, he was again contacted by two informants. The informants told Detective McIlroy that "Burrell was currently in California picking up an unknown [quantity] of cocaine and was to bring it back with him to Las Vegas." One of these informants also told Detective McIlroy that Burrell was coming back to Las Vegas "at any time with the cocaine."

On February 4, 1999, a third informant told Detective McIlroy that Burrell was back in Las Vegas, that he had been inside Burrell's apartment, and had observed Burrell cooking approximately one ounce of rock cocaine over the stove. The informant told Detective McIlroy that Burrell possessed a handgun, which he kept in his bedroom. The informant also identified Burrell's car by its license plates and stated that it was parked outside his apartment at 1750 Karen Avenue. Detective McIlroy sent Detective Rector to provide surveillance of Burrell's 1750 Karen Avenue apartment. Detective Rector confirmed that a car matching those plates was indeed parked outside of that apartment and communicated this to Detective McIlroy, who then sought to obtain the search warrant.

Before the warrant had issued, Detective Rector continued to provide surveillance of Burrell's 1750 Karen Avenue apartment. At some point, Burrell left his apartment at 1750 Karen Avenue and drove to his other apartment at 1500 Karen Avenue. Detective Rector followed Burrell to the second apartment, where he claims that he then stopped and detained Burrell after Burrell attempted to exit the vehicle and enter the apartment.

Burrell, however, alleges that Detective Rector followed him to the second apartment, stopped Burrell in his car, and forcibly removed him from the car at gunpoint. Burrell asserts that Detective Rector handcuffed him, read him his Miranda rights, and later informed him he was under arrest for suspicion of being under the influence of a controlled substance.

It is undisputed that thereafter the police transported Burrell back to his 1750 Karen Avenue apartment, where Burrell refused to allow officers to search that apartment, but he agreed to allow them to wait inside the entrance until they obtained the warrant. After the officers were notified by phone¹ that a search warrant had issued, they searched the apartment. During the search, Detective Rector and another police officer returned to the 1500 Karen Avenue apartment. Courtney Johnson, who shared the 1500 Karen Avenue apartment with Burrell, provided the officers with oral and written consent for the officers to search the 1500 Karen Avenue apartment.

The search at the 1750 Karen Avenue residence yielded a .38 caliber revolver and a shotgun, as well as 2.73 grams of cocaine. The search at the 1500 Karen Avenue apartment led to the recovery of two scales commonly used to weigh narcotics for sale, a Mosberg 12 gauge shotgun, a yellow bag filled with shotgun shells, and two boxes of .38 caliber bullets, which were similar to the bullets used in the gun recovered at the 1750 Karen Avenue apartment. Burrell was charged with two counts of being a felon in possession of a firearm and for possession of cocaine with intent to distribute. Burrell was indicted by a federal grand jury of being a convicted felon in possession of a firearm on May 13, 1999.

On December 8, 1999, Burrell sued the detectives under 42 U.S.C. § 1983 for violating his Fourth Amendment rights. The district court granted the officers' motion for summary judgment, finding that the officers had probable cause and did not use excessive force in arresting Burrell, and that the searches of his two apartments were reasonable under the Fourth Amendment. Burrell timely appealed to this court.

II

Burrell first argues that the district court erred in granting Detective Rector's motion for summary judgment. He contends that Detective Rector used excessive force and falsely arrested him outside the 1500 Karen Avenue apartment. In its briefs, the government disputed whether the encounter was an arrest, but conceded at oral argument that, if the encounter was an arrest, Detective Rector lacked probable cause to arrest Burrell.

Assessing the evidence in a manner most favorable to Burrell, see Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), this encounter was an arrest. Burrell was removed from his car at gunpoint, handcuffed, Mirandized, and told that he was under arrest. Under our case law, this confluence of circumstances leads us to conclude that he in fact was under arrest. See Rohde v. City of Roseburg, 137 F.3d 1142, 1144 (9th Cir.1998) (holding restraint of suspects "necessarily crossed the line from investigatory stop to arrest because both were told that they were under arrest"); Allen v. City of Portland, 73 F.3d 232, 236 (9th Cir.1995) (holding that a police officer's statement to a suspect that she was "under arrest" helped to create sense of restraint necessary to effect an arrest); United States v. Del Vizo, 918 F.2d 821, 824 (9th Cir.1990) (holding the combination of the police's order to exit vehicle, hand-cuffing, and brandishing of weapons created an arrest); United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1295 (9th Cir.1988) (holding an arrest occurred based on detention at gunpoint by police officers who stated they were making an arrest and gave Miranda rights). Given the government's concession that it lacked probable cause, the arrest was unconstitutional. Nonetheless, we hold that a reasonable officer in Detective Rector's position would have believed that he had probable cause to arrest Burrell and to use force in doing so.

The particularized facts known by the officers at the time of the encounter amply show that a reasonable officer in Detective Rector's position could have believed that he was authorized to use force to take Burrell into custody. See Reynolds v. San Diego County, 84 F.3d 1162, 1170 (9th Cir.1996) ("The inquiry is not whether another reasonable or more reasonable interpretation of events can be constructed ... after the fact.... Rather, the issue is whether a reasonable officer could have believed that his conduct was justified.") (internal quotations and citations omitted), overruled on other grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th Cir.1997) (en banc).²

At the time of the encounter, the officers were aware that Burrell was a felon who had recently confessed to shooting his former girlfriend, and that it was highly likely that he continued to deal drugs and...