U.S. v. Bell

• Citation: 762 F.2d 495
• Decision Date: 22 May 1985
• Docket Number: No. 84-3534,84-3534
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Wayne Cedric BELL, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 495

762 F.2d 495

UNITED STATES of America, Plaintiff-Appellant, v. Wayne Cedric BELL, Defendant-Appellee.

No. 84-3534.

United States Court of Appeals Sixth Circuit.

Argued Feb. 22, 1985.

Decided May 22, 1985.

Randolph Baxter, Chief, Appellate Litigation Div., Cleveland, Ohio, Frederick H. McDonald, Asst. U.S. Atty., Patrick Foley, argued, Toledo, Ohio, for plaintiff-appellant.

Peter J. Pitkin, argued, Toledo, Ohio, for defendant-appellee.

Before MARTIN and JONES, Circuit Judges, and PORTER, Senior District Judge. ^*

DAVID S. PORTER, Senior District Judge.

The United States appeals from an order suppressing an automatic handgun seized from Wayne Bell by an agent of the Federal Bureau of Investigation following a frisk which occurred as a result of Bell's presence in an automobile with an individual being arrested on a felony warrant. Jurisdiction lies under 18 U.S.C. Sec. 3731 (1984). We reverse the suppression order and remand this case to the district court for further proceedings.

I.

In the course of a multijurisdictional investigation into a food stamp trafficking ring operating in Toledo, Ohio, FBI agents obtained a warrant for the arrest of Earl Cherry. Cherry was the lieutenant of Hassid Abdul Risk, who was believed to be running the operation. Risk was known to have illegally sold handguns to undercover agents.

In addition to his activities involving food stamps, Cherry was suspected of trafficking in narcotics based upon an agreement to sell one-quarter ounce of cocaine to an undercover Federal agent. The narcotics transaction was to occur upon the day of Cherry's arrest, and a search warrant had been obtained for Cherry's van.

Special Agent Snyder, around whose actions this case revolves, was not involved in the investigation into the food stamp, weapons, or narcotics violations, but was assigned to assist with execution of the warrants obtained for Cherry and his van. At a briefing on the morning chosen for the arrests of Cherry, Risk, and a number of other suspects, Snyder learned that Cherry was suspected of food stamp and narcotics trafficking, that Risk had sold firearms to an undercover agent, and that Cherry had a "serious" arrest record. He also learned that Cherry had, three days earlier, purchased food stamps at less than their face value from an undercover agent; at the time of the buy, Cherry was accompanied by an accomplice, unknown to the investigators, who actively assisted Cherry in the transaction and was present when Cherry agreed to the narcotics sale. Anticipating that Cherry might prove to be armed and dangerous, Snyder and his fellows donned protective vests before undertaking their assignment.

Although the agents began looking for Cherry in the morning, he was not found until early afternoon. At that time, he was spotted in the parking lot of a Toledo food stamp distribution center. He was not driving his van, but was seated in the driver's seat of a parked Cadillac. Appellee Wayne Bell was sitting in the front passenger seat, and a number of people were milling around the car. After a brief surveillance, the agents moved to execute the warrants. Two agents moved to the driver's side of the Cadillac and arrested Cherry without incident. While that arrest was taking place, Agent Snyder moved to the front passenger door, backed up by another agent who stood with his back to Snyder, facing the other people in the parking lot. Snyder then ordered Bell to put his hands on the dashboard of the car. Bell did not move his hands from their position on his lap or thighs (Agent Snyder testified that Bell's hands were visible from his position outside the car). Snyder repeated his command to no avail, and then ordered Bell to get out of the car. Bell unlocked the door by means of the inside door handle, but did not open it. Snyder opened the car door and extracted Bell from his seat.

The agent testified that, throughout this brief period, Bell stared back at him in a manner he characterized as "defiant." After Bell, now out of the car, did not respond to a command to place his hands on the roof of the car, Snyder turned him around and put his hands on the car. Snyder then frisked Bell and immediately encountered an object he thought was a small-caliber automatic handgun inside Bell's unzipped winter coat. Snyder held on to the object and obtained assistance in removing Bell's coat. The object proved to be an unloaded automatic pistol. Bell was not in possession of ammunition, and none was found in the car. Bell was arrested for allegedly violating a Toledo ordinance prohibiting the carrying of concealed weapons; upon the discovery that Bell had a previous felony conviction, he was indicted upon a single count of being a convicted felon in possession of a firearm in violation of 18 U.S.C.App. Sec. 1202(a) (1976).

II.

A hearing on the admissibility of the firearm was held before a magistrate, and Agent Snyder was the only witness called. The magistrate, in a thoughtful opinion, recommended to the district court that the gun be suppressed. The magistrage reasoned that at the time of the frisk, there was nothing which permitted the inference that Bell was armed and dangerous. Agent Snyder had agreed with defense counsel that there was "no indication that Mr. Bell had on his person a weapon until [he] actually felt it," and agreed that Bell's conduct was "passive." In the magistrate's view, while Snyder had "some reason to believe" that Bell was the unknown suspect, the only basis for the frisk was the fact that Bell was in the company of a suspect legitimately considered armed and dangerous.

The magistrate relied upon Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) for the proposition that a frisk for weapons is justified only where specific and articulable facts give a policeman reasonable grounds to believe that an individual is armed and dangerous. Noting that the Supreme Court held in Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person," the magistrate concluded that the Government had not met its burden of showing the frisk to be reasonable. See United States v. Wickizer, 633 F.2d 900, 901 (6th Cir.1980), cert. denied, 450 U.S. 935, 101 S.Ct. 1401, 67 L.Ed.2d 370 (1981) (government has burden of proving the reasonableness of a search once movant establishes prima facie case of unreasonableness). The magistrate found that

[i]n the instant case the principal 'articulable facts' relating to the defendant which led to the frisk were a failure to respond to Agent Snyder's command to place his hands on the dashboard, and his staring at the Agent 'defiantly.' This conduct, while impolitic and unwise, does not reflect the type of hostility and nascent risk of violence which would support a conclusion that the defendant was armed and dangerous.

Magistrate's Report & Recommendation at 5. ¹

Upon the government's motion, the district court reviewed the magistrate's report and recommendation, and affirmed it with certain modifications. Specifically, the district court concluded that the magistrate's report permitted the conclusion that Snyder knew of the specific nature of Cherry's arrest record prior to the execution of the warrant, an inference the district court viewed as unsupported by the record. The court also thought it noteworthy that the agent "admitted that upon viewing the defendant he did not recognize him" as the unidentified male suspect in question. ² The court further found that while Bell did not cooperate with Snyder when ordered to get out of the Cadillac, "there is also no doubt that defendant in fact unlocked the door, allowing Agent Snyder to open it." The court concluded that "the factual case for the patdown in issue ... is even weaker than the Magistrate's Report and Recommendations suggests."

III.

The Government invites us to decide this case based upon language drawn from United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir.1971), where the court stated that "[a]ll companions of the arrestee within the immediate vicinity ... are constitutionally subjected to the cursory 'pat-down' reasonably necessary to give assurance that they are unarmed." Berryhill's "automatic companion" assertion has since been cited with approval by the Fourth and Seventh circuits. See United States v. Poms, 484 F.2d 919, 922 (4th Cir.1973); United States v. Simmons, 567 F.2d 314 (7th Cir.1977). Appellant argues that these cases set forth a rule which we should adopt in the case at bar.

We decline to adopt an "automatic companion" rule, as we have serious reservations about the constitutionality of such a result under existing precedent. Review of Berryhill, Poms, and Simmons suggests that the language in those cases which the Government views as legitimizing a Terry frisk of any companion of an arrestee is in each case dictum unnecessary to the court's holding. ³

As to the propriety of the "automatic companion" rule, we do not believe that the Terry requirement of reasonable suspicion under the circumstances, 392 U.S. at 27, 88 S.Ct. at 1883, has been eroded to the point that an individual may be frisked based upon nothing more than an unfortunate choice of associates. The Supreme Court has "invariably held [that] the predicate to a patdown of a person for weapons" is "a reasonable belief that he was armed and presently dangerous." Ybarra, 444 U.S. at 92-93, 100 S.Ct. at 342-343 (footnote and citations omitted); ⁴ and the Court was, in United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 225, 92 L.Ed. 210 (1948), "not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled." The Government does not aver that these cases have lost their vitality, and their language and...