U.S. v. Atlas

• Decision Date: 29 October 1996
• Docket Number: No. 95-3881,95-3881
• Citation: 94 F.3d 447
• Parties: UNITED STATES of America, Appellee, v. James Earl ATLAS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 447

94 F.3d 447

UNITED STATES of America, Appellee, v. James Earl ATLAS, Appellant.

No. 95-3881.

United States Court of Appeals,

Eighth Circuit.

Submitted May 14, 1996.

Decided Aug. 26, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 29, 1996. ^*

Andrew Herbert Mohring, Asst. Federal Public Defender, Minneapolis, MN, argued, for appellant.

Susan J. Nolting, Asst. U.S. Attorney, Minneapolis, MN, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN SICKLE, ^** District Judge.

MAGILL, Circuit Judge.

James Atlas appeals his conviction for being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1), contending that the warrantless search of a duffel bag was unconstitutional because the searching police officers did not possess a reasonable suspicion that they were in imminent danger. Atlas also contends that the district court erred at sentencing in awarding only a two level reduction for acceptance of responsibility, rather than a three level reduction. ¹ We affirm in part, reverse in part, and remand for resentencing.

I.

On September 13, 1994, Minneapolis, Minnesota Police Officers Jason Reimer and Frederick McDonald responded to a "retrieve property" ² call at 1007 Humboldt Avenue North in Minneapolis. The officers were advised that there was a "hazard" warning on this address, which means that some previous incident had occurred at this address to which officers should be alerted. In this case, paramedics had previously been attacked by the family at that residence, and later at the hospital the family tried to attack the paramedics again. The officers were also alerted that that area, and 1007 Humboldt in particular, was high in gang activity.

Given this information, the officers parked a few houses away and approached 1007 Humboldt on foot. As Officer Reimer walked through the yards of houses near 1007 Humboldt, he saw Atlas standing on a house porch. As the two made eye contact, Officer Reimer saw that Atlas's eyes "got big, like he was surprised to see the police." Testimony of Officer Reimer, Tr. of Hr'g Before the Magistrate Judge at 11 (Mar. 29, 1995) (hereinafter cited as "Tr. at"). Reimer also noted that Atlas was holding a soft nylon bag in his hand. As soon as Atlas saw Officer Reimer, he dropped the duffel bag, and Officer Reimer heard a "thud" when the bag hit the ground. Tr. at 11. Atlas then turned away from the bag and walked towards one of the doors of the house.

At this point, Officer Reimer approached Atlas. He wanted to find out if Atlas was the one who had made the initial retrieve property call. Tr. at 11. Further, he suspected that the bag may have contained a gun. He based this suspicion on three factors: (1) the way that Atlas threw the bag down when he saw Officer Reimer; (2) the thud that the bag made when it landed; and (3) the fact that Officer Reimer had, just one week earlier, recovered a weapon from a nylon bag similar to the one just discarded by Atlas. Id. at 11-12.

As he approached the house, Officer Reimer asked Atlas if the house was 1007 Humboldt, to which Atlas responded "no." Tr. at 12. He then asked Atlas what was in the bag. When Atlas responded, "[W]hat bag?," Reimer said, "[T]he one you just threw down." Testimony of Officer Reimer, Tr. of Evidentiary Hr'g Before the District Judge at 6-7 (July 6, 1995) (hereinafter cited as "E.H. Tr. at"). Notwithstanding the thud that Reimer heard when the bag was thrown down, Atlas responded, "[O]h, oh nothing." Id. at 6.

Officer Reimer testified that, at this point, Atlas appeared "real nervous." Tr. at 12. Atlas continually shifted his gaze between the bag and Officer Reimer, "as if [Atlas] didn't want [Officer Reimer] to look at" the bag. Id. At that point, after having seen Atlas's nervous reaction, and after having received several evasive answers to questions, Officer Reimer told Atlas to place his hands on the wall for a pat search. E.H. Tr. at 22, 67. He asked Atlas if the bag was his, to which Atlas said "no." Tr. at 13. Officer Reimer then began to pat search Atlas for weapons.

Officer McDonald approached the house, and Officer Reimer told him to check the bag. Officer McDonald touched the bag, and he felt the barrel of what he thought was a shotgun. When he advised Officer Reimer that there was a shotgun in the bag, Atlas began to resist and fight Officer Reimer. After the two officers finally succeeded in handcuffing Atlas, they opened the bag and found a loaded, bolt-action rifle with a sawed-off barrel, plus a round of ammunition and items relating to a local gang. The officers then ran a routine warrant check on Atlas and discovered that there was an outstanding warrant for a federal parole violation. Atlas was taken to the Hennepin County Jail and booked for the warrant and the firearms violation.

Atlas brought a motion in the district court to suppress the gun, contending that the search violated the Fourth Amendment because Officer Reimer lacked a reasonable suspicion that Atlas was engaged in criminal activity. After a hearing before a magistrate judge on May 8, 1995, the magistrate judge recommended granting Atlas's motion.

The government objected to the magistrate judge's report and recommendation. The district court held an evidentiary hearing on July 6, 1995, and it adopted the magistrate judge's factual findings. Although the court also agreed with the magistrate judge's conclusion that Officer Reimer lacked a reasonable suspicion that criminal activity was afoot, the district court nevertheless denied Atlas's motion to suppress, concluding that Officer Reimer possessed a reasonable belief that he was in imminent danger.

Atlas then entered a conditional guilty plea on the felon in possession count, reserving the right to appeal the denial of the motion to suppress. As part of the plea, the parties agreed that Atlas should receive a three level reduction in the offense level for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. At sentencing, however, the court awarded only a two level reduction, because of its finding that Atlas, while incarcerated at the Anoka County Jail awaiting sentencing, had continually violated facility rules and had been an ongoing disruptive influence at the facility. ³ Atlas was sentenced to seventy-eight months in prison and three years of supervised release, and he was ordered to pay a $50 special assessment.

II.

Where a police officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous," the officer is entitled to conduct a limited search of that person to discover any weapons that may be used to harm the officer. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). We review de novo the district court's conclusions regarding whether a reasonable suspicion existed. See Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). However, a reviewing court should "review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Id.

In analyzing whether a "reasonable suspicion" existed, " 'the totality of the circumstances--the whole picture--must be taken into account.' " United States v. Dickson, 58 F.3d 1258, 1262 (8th Cir.) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)), aff'd on reh'g, 64 F.3d 409 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 747, 133 L.Ed.2d 695 (1996). We must consider the information available to the police at the time of the search. In so doing, "we weigh that information 'not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.' " Id. (quoting Cortez, 449 U.S. at 418, 101 S.Ct. at 695).

We agree with the government that Officer Reimer possessed a reasonable suspicion that criminal activity was afoot and that Atlas was armed and dangerous. ⁴ First, we note that the officers were responding to a call in a dangerous neighborhood, one that was high in gang activity. The house they were proceeding to was suspected of gang activity and was the subject of a hazard call. While the defendant's presence in a dangerous area is not by itself enough to raise a reasonable suspicion, "an area's propensity toward criminal activity is something that an officer may consider." United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993); see also United States v. Evans, 994 F.2d 317, 322 (7th Cir.) (same), cert. denied, 510 U.S. 927, 114 S.Ct. 335, 126 L.Ed.2d 280 (1993).

Most significantly, Atlas's reaction upon seeing Officer Reimer supports a determination of reasonable suspicion. When Atlas saw Reimer, his eyes grew wide, suggesting he was surprised to see the officer. He immediately threw down the bag that was in his hand, and he began to walk towards one of the doors of the house. When Officer Reimer began asking questions of Atlas, he appeared "real nervous" and gave evasive answers to the officer.

Further, when the bag landed, it made a loud thud. Clearly a heavy object was inside. As Officer Reimer testified, just one week earlier, he had recovered a firearm in a nylon bag similar to the one discarded by Atlas. His suspicions about this bag and its contents were further aroused because Atlas continually shifted his gaze between the bag and Officer Reimer, as if Atlas was afraid that Officer Reimer would look at the bag.

Based on these factors, and mindful that the government at a suppression hearing need only demonstrate that a reasonable suspicion existed by a preponderance of the evidence, see United States v. Matlock, 415 U.S. 164, 178 n. 14, 94 S.Ct. 988, 996 n. 14, 39 L.Ed.2d 242 (1974), we conclude that Officer Reimer...