U.S. v. Flett
| Decision Date | 08 December 1986 |
| Docket Number | No. 86-5121,86-5121 |
| Citation | 806 F.2d 823 |
| Parties | UNITED STATES of America, Appellee, v. Calvin L. FLETT, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William L. Thomas, Lake City, Minn., for appellant.
John M. Lee, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and NICHOL, * Senior District Judge.
Appellant Calvin L. Flett pled guilty to a two-count indictment charging a violation of 18 U.S.C. App. section 1202(a)(1), possession of a firearm after having been convicted of a felony, and a violation of 18 U.S.C. section 922(g)(1), transportation of a firearm in interstate commerce after having been convicted of a felony. The plea was entered after the district court 1 denied the appellant's motion to suppress and to dismiss the charges. 2 The appellant's guilty plea was a conditional plea entered pursuant to Fed.R.Crim.P. 11(a)(2), 3 thus reserving the right of the appellant to appeal the adverse determination of the pretrial suppression motion. The appellant now asserts that the district court erred in denying his motion to suppress the evidence seized during a pat-down search of the appellant. We affirm.
This case involves the events surrounding the execution of an arrest warrant that had been issued for a man by the name of Steven Jacobson. Jacobson had been under investigation by the Minnesota Bureau of Criminal Apprehension (BCA) for possible narcotic violations. After the arrest warrant had been issued, three law enforcement officers, one BCA agent and two members of the local sheriff's department, were assigned the execution of the warrant. The officers met prior to the execution of this warrant to discuss the procedure that was to be followed. During this meeting, the officers shared information among themselves concerning Jacobson and his involvement with a motorcycle gang calling themselves the Sons of Silence. The gang is a national organization and Jacobson was known as the "enforcer" of the local chapter. The two local officers, Deputy Adams and Deputy Holton, were personally acquainted with Jacobson, who owned a local bar where gang members often gathered. These officers were also familiar with the local chapter of the Sons of Silence and although personally unaware of any felonious behavior on the part of the members of the local chapter, had learned that in general the members of the Sons of Silence had access to and had used weapons in the past. Gang members were also known to have been charged with assault and resisting arrest in the past. Specific to the local chapter, Jacobson had been charged with the use of a firearm (shot a neighbor's dog) and one gang member, Mr. Robert Mann, was currently under investigation for a homicide committed in another state. There is some confusion as to the exact source of this information among the officers. Some of the information was provided by the BCA and some had been gathered from police seminars. The officers did not establish the sources before acting on the information. Prior to leaving to execute the warrant, the officers determined that all males present at the arrest scene were to be subjected to a cursory pat-down search. 4
The officers proceeded to the Jacobson home, a trailer home, arriving there shortly after 8:00 a.m. Outside the trailer, the officers observed Jacobson's truck, a motorcycle, and an unfamiliar truck with Iowa license plates. As planned, Deputy Holton approached the door with the arrest warrant, BCA agent Comer went to the rear of the trailer and Deputy Adams stood some 15 feet behind Deputy Holton, armed with the squad shotgun. The officers could hear noises from within the trailer. After the second knock, Jacobson answered the door and was told by Deputy Holton that a warrant for his arrest had been issued. There is conflicting testimony on whether Jacobson offered to come outside to discuss the warrant or whether the officers demanded to be let in the residence, but Jacobson did allow Deputy Holton into his trailer home. There was no force used by the officers; Jacobson was not touched in any way and did not object to the entrance of the officers.
The appellant and his wife had arrived at the Jacobson home approximately 15 minutes before the officers. The appellant and his wife were friends of Jacobson and were there to visit and to look at antiques. The appellant, his wife, another woman and two small children were seated in the living room area of the trailer when the officers entered. Deputy Holton stayed with Jacobson and went into the dining room area while Deputy Adams entered and remained near the door. The appellant was seated with his back to the door although he did turn to look at Deputy Adams when he entered the trailer. Almost immediately upon entry Deputy Adams asked the appellant to stand and a pat-down search of the appellant was conducted by Deputy Adams.
Deputy Adams was not personally acquainted with the appellant. He testified that the appellant, from what he could observe, was not involved in any criminal activity. The appellant did not do anything unusual to arouse the suspicion of the officer. The appellant was dressed in similar attire to that of Jacobson, blue jeans and a T-shirt. The officer also testified that the appellant had long hair and a long beard which was again similar to that of Jacobson and other members of the Sons of Silence.
In conducting the search, the officer first felt a hard object in the appellant's right front pants pocket and a buck knife with a four-inch blade was removed. The appellant was then told to stand with his hands against the wall and the pat-down was continued. Another hard object was felt in the appellant's rear pocket from which the officer removed a derringer pistol containing live ammunition.
The appellant's first contention is that the law enforcement officers involved in this incident illegally entered the Jacobson trailer and thus any evidence seized while there was in violation of his Fourth Amendment rights. Secondly, the appellant asserts that the pat-down search conducted by Deputy Adams was not based on probable cause and was not justified at its inception and thus was in violation of his Fourth Amendment rights.
In the context of a motion to suppress, the general rule of this circuit is that the district court's determination will be affirmed unless it is clearly erroneous. United States v. Sadosky, 732 F.2d 1388, 1391 (8th Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984); United States v. McGlynn, 671 F.2d 1140, 1143 (8th Cir.1982). Under this standard of review, a finding is clearly erroneous when the reviewing court, on the entire record, is left with the definite and firm conviction that a mistake has been committed. Anderson v. City of Beesmer City, 470 U.S. 564, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985), citing United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). With this standard in mind, each of the appellant's contentions shall be examined.
A search that is conducted pursuant to a valid consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). The validity and voluntary nature of the consent is to be determined from the totality of the circumstances. Id. at 227, 249, 93 S.Ct. at 2047-48, 2059. 5
There is conflicting testimony as to whether Jacobson offered to come outside to discuss the warrant or whether or not he agreed to allow the officers to enter his home. Even with this conflict, it is clear that there is sufficient evidence in the record to support the district court's factual determination that Jacobson consented to the entry. No physical force was applied to Jacobson prior to entry or during entry; in fact, Jacobson was not even touched. Jacobson himself testified that he did not refuse entry into his home. The district court's finding that the entry was voluntary and lawful is not clearly erroneous. 6
The appellant's second contention is that the pat-down search conducted by Deputy Adams was in violation of his Fourth Amendment rights. He claims that the officer did not have probable cause nor did the officer base his suspicion of the appellant on any objective facts from which one could reasonably conclude that the appellant was involved in any criminal activity. The government's assertion is that the search was a valid protective search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The government is correct in that, if this search is to be upheld, it must comply with the standards established by the Supreme Court in Terry v. Ohio. In Terry, the Court stated that:
in determining whether the seizure and search were "unreasonable" our inquiry is a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.
The Court further noted that in order to justify the intrusion, "the police officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S.Ct. at 1880. Due to the unique nature of this type of search, each case is to be decided on its own facts. Id. at 30, 88 S.Ct. at 1884-85.
The Supreme Court has never directly addressed the applicability of the Terry exception to a search of the companion of an arrestee. In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the Court refused to uphold the search of patron of a bar who happened to be present when the police arrived to conduct a search of the bar pursuant to...
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