U.S. v. Barlow

• Decision Date: 22 October 2002
• Docket Number: No. 01-1495.,01-1495.
• Citation: 308 F.3d 895
• Parties: UNITED STATES of America, Appellee, v. Isaac Eugene BARLOW, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

308 F.3d 895

UNITED STATES of America, Appellee, v. Isaac Eugene BARLOW, Appellant.

No. 01-1495.

United States Court of Appeals, Eighth Circuit.

Submitted: August 20, 2001.

Filed: October 22, 2002.

Virginia G. Villa, argued, Asst. Federal Public Defender, Minneapolis, MN, for appellant.

Anthony W. Brown, argued, Asst. U.S. Attorney, Minneapolis, MN, for appellee.

Before BYE, LAY, and JOHN R. GIBSON, Circuit Judges.

BYE, Circuit Judge.

Following a conditional plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922, Isaac E. Barlow appeals the district court's denial of his motion to suppress evidence seized during an investigatory stop of a car in which he was a passenger. Barlow contends that the detention of the car unlawfully exceeded the scope of the stop. For reasons stated below, we vacate the order denying the renewed motion to suppress evidence and remand for further proceedings.

I

Between the early morning hours of 12:00 a.m. and 12:30 a.m. on July 28, 1997, Minneapolis Police Officer Kim Hedberg observed a Geo Tracker pass by as he exited a parking lot. The record indicates the occupants of the Tracker glanced at Officer Hedberg and were startled and surprised to see him. Officer Hedberg was in uniform and in a marked patrol car. The Tracker increased its speed and made a quick left turn in what appeared to be an attempt to evade Officer Hedberg. Officer Hedberg followed the Tracker into an alley and observed it pull over and park.

Officer Hedberg saw two passengers, both black males, exit the Tracker and walk in the direction of a private residence. Officer Hedberg drove by the Tracker. He noticed the driver was white with brown or blonde hair, but could not determine the driver's gender. Officer Hedberg then came upon the two men who had just exited the vehicle. He asked them whether they lived in that residence. They said they did, however, he did not see them enter it. Officer Hedberg did not ask any additional questions and exited the alley. He ran a computer check on the registration on the Tracker, whereupon he discovered the owner of the Tracker, a male, had an outstanding misdemeanor warrant.

Officer Hedberg decided to investigate whether the owner of the Tracker was present in the vehicle, so he returned to the alley. In so doing, Officer Hedberg observed the Tracker in motion, and also noticed that the same two men who had previously exited it, and who had told Officer Hedberg that they were headed toward their residence, were back in the Tracker. Officer Hedberg activated his light bar and initiated a stop. He approached the Tracker and discovered that the driver was a female. Officer Hedberg asked the driver for her license and she responded she did not have it with her. He then asked the driver to accompany him to his patrol car while he ran a computer check on her license. While in the patrol car, the driver told Officer Hedberg that she knew the identity of the passenger seated in front, but she did not know the identity of the passenger seated in back.

Officer Hedberg returned to the Tracker to identify the passengers. When he approached the Tracker, he initially asked the passengers where they lived. The responses they provided conflicted with their earlier statements they had provided while in the alley. Both passengers were requested to exit the Tracker and produce identification. As soon as Barlow exited the Tracker, Officer Hedberg conducted a pat-down search for weapons and felt bullets in Barlow's back pocket. He removed the bullets from Barlow's pocket, placed him in handcuffs and in the patrol car. Thereafter, Officer Hedberg shined a flashlight into the Tracker, where, in plain view, he saw a firearm on the floor in the back seat where Barlow had been seated. Officer Hedberg seized the firearm and placed Barlow under arrest.

II

Barlow concedes that the underlying basis for stopping the Tracker was valid. See United States v. Cortez, 449 U.S. 411, 417 n. 2, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ("[A]n officer may stop and question a person if there are reasonable grounds to believe that person is wanted for past criminal conduct."). But he contends that the officer exceeded the purpose of stopping the car—to determine whether the Tracker's owner, the subject of the outstanding warrant, was present in the car— and thus the seizure was illegal and the evidence obtained was tainted by that illegality.

Barlow filed two motions to suppress the evidence. His original motion to suppress was referred to a magistrate judge for a report and recommendation. The magistrate judge held an evidentiary hearing and ultimately recommended that Barlow's motion be denied. Barlow raised certain objections, but after conducting a de novo review, the district court likewise denied Barlow's motion to suppress. Subsequently, during his plea hearing, Barlow renewed his motion to suppress, after the district court allowed him to make Defendant's Exhibit 10 part of the court's record. The district court, once again, denied Barlow's motion to suppress. In order to review the district court's judgment in full, we must review the original motion to suppress and the renewed motion to suppress separately. In doing so, we review for clear error the facts supporting a district court's denial of a motion to suppress, and review de novo the legal conclusions based upon those facts. See United States v. Perez, 200 F.3d 576, 579 (8th Cir.2000) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

A. Original Motion to Suppress

In adopting the magistrate judge's¹ report and recommendation, the district court found the initial stop of the Tracker to be valid based on the officer's reasonable suspicion that the occupants of the vehicle had been engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 25-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The district court also found the police officer justifiably expanded the scope of the investigation beyond the misdemeanor warrant which was the purpose of the initial stop.

Barlow argues that Officer Hedberg should have terminated the stop before asking the driver a single question. According to Barlow, Officer Hedberg knew the subject of the misdemeanor warrant (the Tracker's owner) was a white male. Yet Officer Hedberg had observed the Tracker's driver as being a white woman and its passengers being black males. Barlow argues that because Officer Hedberg had no reason to suspect that any of the Tracker's occupants was the subject of the warrant, he lacked justification for asking questions and prolonging the stop.

Barlow's argument hinges upon his contention that Officer Hedberg knew both the gender and the race of the Tracker's owner when he executed the stop. The evidence, however, fails to substantiate Barlow's contention. The evidence presented to the magistrate judge at the hearing indicated that Officer Hedberg knew only the gender of the Tracker's owner.

During the evidentiary hearing, Officer Hedberg testified he knew only the Tracker's owner was a male. The prosecutor then asked Officer Hedberg whether he knew the owner's race. His answer was no, and further testified that the computer print-out did not provide the race of the Tracker's owner; rather, it only provided the gender, hair color and eye color. Barlow's attorney did not cross-examine Officer Hedberg on this issue, nor was he cross-examined about the contents of the computer print-out. In fact, the computer print-out, which contained the physical description of the owner, and did include race, was only marked as Defendant's Exhibit 10 during the evidentiary hearing. It was never admitted into evidence. Defendant's Exhibit 10, therefore, was not in the record.

In the report and recommendation, the magistrate judge noted the dearth of information Officer Hedberg possessed regarding the physical description of the Tracker's owner, stating:

A registration typically reveals a brief description of the owner, however, during his testimony, Officer Hedberg was not asked about that description. The physical appearance of the owner remains unknown, so the evidence does not disclose whether a reasonable officer would have reached a conclusion as to whether the male passengers might have been the owner of the car and the subject of the warrant.

Report & Recommendation 3-4. The magistrate judge ultimately recommended Barlow's motion to suppress be denied. Barlow did not object² to the magistrate judge's aforementioned factual finding. Thus, while we normally review for clear error the facts supporting a district court's denial of a motion to suppress, the factual findings here will be reviewed only for plain error, because Barlow failed to object to this factual finding. See United States v. Looking, 156 F.3d 803, 809 (8th Cir. 1998).

Because the record was devoid of any evidence suggesting, much less demonstrating, Officer Hedberg knew the race of the owner when he stopped the Tracker, we cannot say the district court plainly erred. Barlow never raised nor argued the race issue. Consequently, since there was no evidence upon which the magistrate judge or the district court could possibly have found that Officer Hedberg knew the race of the owner when he stopped the Tracker, the district court did not err in finding Officer Hedberg had reasonable suspicion to believe the Tracker's owner may have been present as a passenger.

B. Renewed Motion to Suppress

At his plea hearing, Barlow requested permission to make Defendant's Exhibit 10 part of the record. Barlow's attorney informed the district court the magistrate judge had essentially been presented with the contents of Defendant's Exhibit 10 through testimony, and therefore the exhibit itself should be added to the record to assist in Barlow's eventual appeal. With the assurance of Barlow's attorney that the addition of the exhibit would not prompt a remand on...