U.S. v. Kerr

• Citation: 817 F.2d 1384
• Decision Date: 21 May 1987
• Docket Number: No. 86-1277,86-1277
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald Duane KERR, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1384

817 F.2d 1384

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Duane KERR, Defendant-Appellant.

No. 86-1277.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 9, 1987.

Decided May 21, 1987.

Nancy L. Simpson, Sacramento, Cal., for the plaintiff-appellee.

Carl E. Larson, Sacramento, Cal., for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of California.

Before SCHROEDER, WIGGINS and THOMPSON, Circuit Judges.

WIGGINS, Circuit Judge:

Gerald Duane Kerr appeals his conviction for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Kerr entered a conditional guilty plea, reserving his right to challenge the district court's denial of his motion to suppress evidence. Kerr argues that the police subjected him to a Terry stop without founded suspicion and therefore violated the fourth amendment. We agree and reverse and remand.

FACTS

On Sunday December 15, 1985 at 3:30 p.m., Deputy Sheriff Hedrick was on routine patrol in a rural neighborhood. Deputy Hedrick observed Kerr by a car parked near a barn located on a residential property. The car's trunk was open, exposing cardboard boxes. Because he knew of several recent residential burglaries in the area, Deputy Hedrick made a U-turn, returning to the residence's driveway. The driveway was a one lane dirt road approximately seventy to one hundred feet long. As Deputy Hedrick pulled into the driveway, Kerr was backing his car out. When he was approximately forty to fifty feet from the patrol car, Kerr left his own car and met Deputy Hedrick on foot. Without being asked, Kerr produced his birth certificate and vehicle registration and stated that he had no driver's license. Deputy Hedrick questioned Kerr, investigated the premises and discovered a methamphetamine laboratory in the barn.

Kerr was indicted for three counts of drug offenses involving the manufacture and distribution of methamphetamine. After an evidentiary hearing, the district court denied Kerr's motion to suppress the evidence collected as a result of his encounter with Deputy Hedrick, concluding that

                the encounter did not constitute a seizure within the meaning of the fourth amendment.  Alternatively, the district court apparently found that Deputy Hedrick had founded suspicion to conduct a stop, stating "[t]he officer, believing that a residential burglary was in progress, was accordingly justified in driving his car into the driveway."    The district court entered judgment against Kerr and this appeal followed.  We have jurisdiction under 28 U.S.C. Sec. 1291
                

DISCUSSION

The appeal concerns two issues. Was Deputy Hedrick's initial contact with Kerr a stop within the meaning of the fourth amendment? If so, was the stop supported by founded suspicion? We conclude that Deputy Hedrick's encounter with Kerr constituted a stop within the meaning of the fourth amendment. We also conclude that the stop was without founded suspicion.

1. Standard of Review

Fourth amendment issues regarding the lawfulness of a search or seizure generally present mixed questions of law and fact. We uphold findings of fact made at a suppression hearing unless they are clearly erroneous. United States v. Feldman, 788 F.2d 544, 550 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). We review de novo the district court's decision that no fourth amendment seizure occurred. United States v. Sokolow, 808 F.2d 1366, 1369 (9th Cir.1987); cf. United States v. Al-Azzawy, 784 F.2d 890, 891-92 (9th Cir.) (whether encounter is a warrantless arrest or a Terry stop is examined de novo), cert. denied, --- U.S. ----, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986). We also review de novo the district court's conclusion that a particular body of facts constitutes founded suspicion. Sokolow, 808 F.2d at 1369; United States v. Sutton, 794 F.2d 1415, 1425 (9th Cir.1986); United States v. Maybusher, 735 F.2d 366, 371 & n. 1 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985).

2. Stop

Not every encounter between the police and the public is entitled to fourth amendment protection. "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). Because search and seizure issues arise in a myriad of fact patterns, the Supreme Court has not defined the precise point at which a fourth amendment seizure occurs. See United States v. Ward, 488 F.2d 162, 169 (9th Cir.1973) (en banc).

The vast majority of automobile stops are initiated by police officers using flashing lights or a siren and are clearly fourth amendment seizures. Ward, 488 F.2d at 169. This case, however, presents the unusual problem of characterizing an automobile stop as either a voluntary encounter or an investigative stop. The characterization is crucial because a voluntary encounter intrudes on no constitutionally protected interest and therefore receives no fourth amendment protection. In contrast, a temporary detention for investigative purposes, or Terry stop, requires that the police officer have founded suspicion: reasonable suspicion based on articulable facts of some criminal activity afoot. See United States v. Torres-Urena, 513 F.2d 540, 542 (9th Cir.1975).

The district court found that Kerr was not detained, concluding that "the mere fact that the road was temporarily blocked by a police car is not detention, inasmuch as defendant Kerr still could have done numerous things at this point, such as driving around the car, or simply ignoring the police officer." We disagree.

Kerr stopped and exited his car primarily in response to Deputy Hedrick's official appearance and conduct, rather than of his own volition. Arriving in uniform and in a marked patrol car, Deputy Hedrick unquestionably appeared to be acting in an official capacity. Instead of waiting in his patrol car at the roadside, or parking and walking, Deputy Hedrick pulled into and blocked the one lane driveway as Kerr was backing out. Deputy Hedrick's conduct thus precipitated the confrontation with Kerr. See Torres-Urena, 513 F.2d at 541 n. 1 (defendant's decision to stop was "sufficiently influenced by the official appearance and conduct of the agents" that government must show founded suspicion).

Under the circumstances, Deputy Hedrick's authority and conduct provided Kerr with no reasonable alternative except an encounter with the police. Consequently, the encounter cannot be deemed voluntary. Voluntariness presupposes a freedom of choice that Kerr did not have. The district court's suggestion that Kerr could have backed around the car or ignored Deputy Hedrick defies common sense; Kerr's freedom to depart was restrained at the moment Deputy Hedrick blocked the one-lane driveway.

Finally,...