U.S. v. Dockter

• Decision Date: 22 August 1995
• Docket Number: Nos. 94-2972,94-2974,s. 94-2972
• Citation: 58 F.3d 1284
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin R. DOCKTER, also known as Kevin R. Docktor, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Floyd Wesley SHULZE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1284

58 F.3d 1284

UNITED STATES of America, Plaintiff-Appellee, v. Kevin R. DOCKTER, also known as Kevin R. Docktor,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Floyd Wesley SHULZE, Defendant-Appellant.

Nos. 94-2972, 94-2974.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 15, 1995.

Decided July 3, 1995.

Rehearing and Suggestion for Rehearing

En Banc Denied Aug. 22, 1995.

Ralph A. Vinje, Bismarck, ND, argued, for Kevin Dockter.

Michael Ray Hoffman, Bismarck, ND, argued, for Floyd Shulze.

Cameron Wayne Hayden, Asst. U.S. Atty., argued, for appellee.

Before BOWMAN, BEAM, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Kevin Dockter and Floyd Shulze were convicted of being felons in possession of firearms and ammunition in violation of 18 U.S.C. Sec. 922(g). On appeal, they contend that the district court ¹ erred in denying their motions to suppress evidence discovered in a vehicle they were occupying and in responding ex parte to a question from the jury. Shulze also argues that the district court erred in denying his motion to suppress evidence found in his house pursuant to a warrant and in sentencing him to the 15-year mandatory minimum sentence under 18 U.S.C. Sec. 924(e)(1). We affirm.

I.

On September 16, 1993, agents from the Bureau of Alcohol, Tobacco, and Firearms (ATF) and from the Internal Revenue Service (IRS) executed a federal search warrant on Shulze's Bismarck, North Dakota, residence. The agents had received information that Shulze was involved in sales of controlled substances. Pursuant to the search, the agents discovered numerous rounds of .22 caliber ammunition along with a photograph dated October of 1989 depicting Shulze holding a shotgun.

On October 25, 1993, Burleigh County Deputy Sheriff Dewitt Meier was on patrol duty approximately four miles south of the Bismarck, North Dakota, area. He spotted a vehicle about one-half of a mile away that was parked off the traveled portion of the road and had its parking lights on. He approached the vehicle, did a U-turn, pulled in directly behind it, and activated the amber lights on his vehicle's light bar. As he approached the parked vehicle, he noticed the occupants making shifting, jerky movements, and the individual in the driver's seat leaned toward the passenger as if to say something and then leaned forward and down.

When the deputy reached the parked car, he asked the occupants if they needed assistance. The driver, Kevin Dockter, responded that the car had stalled but was now operable; Dockter revved the car's engine to emphasize this point. During this exchange, Deputy Meier detected the odor of burnt marijuana emanating from the vehicle. He also observed several bundles of single cigarettes attached to wooden kitchen matches by rubberbands in the console area between the driver and passenger, Floyd Shulze. Deputy Meier asked Dockter for his driver's license, requested the occupants to exit the vehicle, and upon inspection found several loaded firearms and a loaded magazine for one of the firearms.

Shulze and Dockter were later indicted and found guilty by a jury of being felons in possession of firearms and ammunition in violation of 18 U.S.C. Sec. 922(g)(1). Because both defendants had at least three prior convictions involving violent felonies within the meaning of 18 U.S.C. Sec. 924(e)(2), they were subject to the mandatory minimum sentence of 15 years of imprisonment under Sec. 924(e)(1). Shulze was eventually sentenced to the mandatory minimum of 180 months (15 years) of imprisonment, and Dockter was sentenced at the bottom of his identified Sentencing Guidelines range (Level 33, Criminal History Category V = 210-262 months) to 210 months of imprisonment. Shulze and Dockter appeal.

II.

A. Suppression of Evidence Seized from the Vehicle

Shulze and Dockter contend that the district court erred in failing to suppress the evidence Deputy Meier seized from the parked vehicle they occupied on October 25, 1993. They argue that Deputy Meier seized them within the meaning of the Fourth Amendment when he pulled his vehicle behind them and activated his amber flashing lights. Because at that juncture Deputy Meier had neither observed any criminal activity nor developed a reasonable and articulable suspicion of illegal activity, they contend that this seizure was unlawful and that the fruits of the subsequent search of the vehicle must be suppressed. The district court held that Deputy Meier did not seize the appellants until he asked Dockter for his driver's license, and at that point Deputy Meier had developed a reasonable and articulable suspicion of criminal wrongdoing to justify his subsequent detention of the occupants and search of the vehicle. "The determination [of] whether a seizure occurred is a question of law that we review de novo." United States v. Angell, 11 F.3d 806, 809 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2747, 129 L.Ed.2d 865 (1994).

"[N]ot all personal intercourse between policemen and citizens involves 'seizures' of persons." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). "[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389 (1991). "The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). However, circumstances indicative of a seizure " 'would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.' " Angell, 11 F.3d at 809 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Justice Stewart)).

The facts of this case are not unlike those in Angell, where a law enforcement officer was investigating an unattended van parked in the middle of a rural public road when he encountered the defendants as they stopped at a nearby stop sign. 11 F.3d at 807. We concluded that the officer's admonition to the defendants to "[s]tay there, I want to talk to you" was not a seizure because "neither [the officer]'s language nor his conduct constituted anything other than what a reasonable person would have construed as a consensual encounter between a law enforcement officer and a member of the public." Id. at 809. In reaching this conclusion, we found relevant that the "events occurred on a public road in the presence of only one officer," the officer "did not block the pathway of the [defendant]'s car, did not draw a weapon, and did not physically touch the" defendants. Id.

Likewise, we conclude in this case that Shulze and Dockter were not seized within the meaning of the Fourth Amendment when Deputy Meier pulled his vehicle behind their parked car and activated his amber warning lights. At the time of the encounter, the two cars were the only vehicles in the area, Deputy Meier was the only law enforcement officer on the scene, he did not block the appellants' vehicle or in any manner preclude them from leaving, he did not draw his weapon, and his tone of voice was inquisitive rather than coercive. We agree with the district court's assessment that "[t]here was no behavior by the officer that would differentiate this encounter from one where an officer approaches a stranded motorist to offer assistance." (Shulze's Addend. at 11.) In fact, Dockter's statement that the car had stalled demonstrates that the officer's conduct in approaching the vehicle was a not unexpected routine roadside assistance call. The fact that Deputy Meier activated his amber warning lights only strengthens and does not detract from this conclusion. We conclude that the district court correctly denied the motion to suppress the evidence obtained from the October 25, 1993, encounter.

B. District Court's Ex Parte Instruction to Jury Regarding "Knowingly"

After the jury had deliberated at some length, they sent a note to the district judge stating that "[w]e are having a problem with knowingly. Is there anything written in the law to help explain this legal definition of knowingly?" (Id. at 13.) Without consulting the attorneys and without the defendants being present, the district judge answered:

'[K]nowingly' is not a difficult concept. If you are aware that you have a gun--then you have it 'knowingly[.]' If you didn't know that it was a gun--if you thought it was a water pistol--a squirt gun--then you did not 'knowingly' possess a gun. You do not have to 'know' that possessing the gun was a crime.

(Id.) The district court stated that it "responded to [the question] without calling the attorneys and making a record because the questions were simple and did not go beyond the discretion of the court." (Id.)

Shulze and Dockter contend that the district court committed reversible error by giving this instruction ex parte and denying counsel the opportunity to object to the language, in violation of Federal Rule of Criminal Procedure 30. They further contend that they were prejudiced by the instruction because it is not a correct statement of the law, specifically that it used facts from the case as an example and that it detracted from the requirement of dominion and control in order to find "knowing possession." The government contends that this instruction was a correct statement of the law and in fact...