U.S. v. Mask

Decision Date30 April 2003
Docket NumberNo. 02-40677.,02-40677.
Citation330 F.3d 330
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Bryan Chadwick MASK, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Kathleen A. Felton (argued), U.S. Dept. of Justice, Crim. Div. Appellate Section, Washington, DC, Allen Harvey Hurst, Asst. U.S. Atty., Tyler, TX, for Plaintiff-Appellant.

Eric Miller Albritton, Elizabeth L. DeRieux (argued), Albritton Law Firm, Odis R. Hill, Hill & Hill, Longview, TX, for Defendant-Appellee.

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

Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:

The United States appeals an order granting the defendant's motion to suppress on the grounds that the evidence at issue was the fruit of an illegal seizure of the defendant's person in violation of the Fourth Amendment. Concluding that the district court erred in finding that the defendant had been illegally seized, we reverse and remand.

I. Background

On the morning of August 2, 2001, Janie Marsh received a phone call at work from one of her neighbors informing her that some vehicles and trailers were backed up to her house and "something was not right." Ms. Marsh called the Gladewater, Texas Police Department and asked them to investigate a possible burglary at her house. Officer Vance Callahan ("Callahan") was dispatched to check on the property, located on a quiet dead-end residential street. Upon his arrival, he saw a sport utility vehicle with an attached trailer backed up to a storage building adjacent to Ms. Marsh's residence. Callahan parked his patrol car in the driveway and approached Christopher Tubbs ("Tubbs"), who was standing next to the SUV. Callahan asked Tubbs for his driver's license and radioed the number to the dispatcher to verify Tubbs's identity and to check for any outstanding warrants or criminal history. Tubbs explained to Callahan that he was Ms. Marsh's former boyfriend, had previously lived with her at the residence, and was in the process of removing his property from the storage building, which belonged to him as well. Callahan spoke with Ms. Marsh, who eventually agreed that Tubbs could retrieve his property.

While Callahan waited for the license check to be completed, Gladewater Animal Control Officer Les Dolbow ("Dolbow") arrived to provide backup, and Bryan Chadwick Mask ("Mask") drove up and parked his sport utility vehicle in front of the house. Dolbow approached Mask, asked for his identification, and asked why he was there. Mask responded that he was there to help Tubbs move, which Tubbs confirmed. Mask then gave his driver's license to Dolbow, who gave it to Callahan. While Callahan ran the license checks, Mask sat down on a landscape timber next to the driveway and chatted with Dolbow. Mask asked Dolbow twice for permission to go into Tubbs's vehicle, first to retrieve a cigarette, and then to get some water. Mask went into the vehicle a total of three, or possibly four, times. Dolbow, who at the time had no reason to suspect that Mask was involved in any illegal activities, observed Mask reach behind and in front of the driver's seat towards the console.

The driver's license checks cleared, and Callahan returned the licenses to Mask and Tubbs. Concluding that no burglary was in progress, Callahan informed Mask and Tubbs that they were free to leave. At this point, any reasonable suspicion the officers had had to detain the men had been extinguished. Although free to leave, Mask and Tubbs remained; so did the officers.

Shortly thereafter, Gladewater Police Sergeant Bill Clampitt ("Clampitt") arrived at the scene. Clampitt had received a call from Sergeant Monty Gage with the Gregg County Organized Drug Enforcement Unit, who had earlier received intelligence that Tubbs, but not Mask, was involved in selling narcotics. The district court found that Gage had asked Clampitt to "detain these guys" and gather information on Tubbs. Upon Clampitt's arrival at Ms. Marsh's residence, Callahan joined Clampitt inside of his unmarked vehicle and briefed him on the situation. Callahan then asked the dispatcher to repeat the information received from the license checks. It is uncertain what precise instructions Clampitt gave Callahan, or whether Mask overheard Callahan requesting the dispatcher to repeat the license reports.1 The district court did not make any findings in this regard, and the record is ambiguous on the subject.

After receiving the reports from the license checks once again, Callahan and Clampitt2 approached Tubbs, who was standing in front of the storage building. There, Clampitt, without entering the building, observed in plain view an illegal sawed off shotgun inside of the building. Clampitt asked Tubbs whose gun it was. Tubbs responded that an "old boy" had given him the gun, but Clampitt could have it because he did not want it. Clampitt took the gun and handed it to Callahan, who secured it in the trunk of his patrol car. Callahan then asked Tubbs to sign a written consent to search form, and Tubbs agreed.

Approximately two to five minutes after the gun was discovered, Officer Gage arrived at the scene and suggested that they arrest Tubbs for possession of a prohibited weapon. Callahan did so, and a search of Tubbs's person incident to that arrest revealed a narcotics pipe. Tubbs was placed in the patrol car, and an inventory search of his vehicle resulted in the discovery of over $5,000 in cash and 122 grams of methamphetamine.

Mask continued to sit on the landscape timber next to the driveway as Tubbs's vehicle was searched. Dolbow, from a position in front of Tubbs's vehicle, kept his eye on Mask. Upon learning that Mask had been inside Tubbs's vehicle, Gage asked Dolbow if Mask had been patted down for officer safety. Dolbow responded in the negative, so Gage asked Mask if he would consent to be patted down for weapons. Mask agreed. In the course of the pat-down, Gage felt an object that he recognized to be a marijuana pipe. Mask was arrested for possession of marijuana, and during a subsequent impoundment and inventory of his vehicle, the officers found methamphetamine, marijuana, a pistol, ammunition, and other items consistent with drug trafficking.

Mask was indicted and charged with one count each of conspiracy to possess with intent to distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C. § 846, possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and using, carrying, and possessing a firearm during and in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Mask filed a motion to suppress. The district court heard the motion on March 15, 2002, and issued a Memorandum Opinion and Order granting it on March 25, 2002. The court noted that Mask was free to leave at the point when the driver's license check first came back clear and Callahan told Tubbs and Mask that they were free to go. The court concluded, however, that Mask's continued presence ceased to be voluntary upon the arrival of Sergeant Clampitt, or in the alternative, when Clampitt found Tubbs's shotgun. Because there was no reasonable suspicion at either point to hold Mask, the court determined that Mask had been illegally seized, and the evidence of drug trafficking found during the course of the pat-down and subsequent inventory search of Mask's vehicle were fruit of that illegality.3 The Government's Motion for Reconsideration was summarily denied on April 19, 2002.

II. Discussion
A. Standard of Review

A district court's factual findings are reviewed for clear error on appeal, while its legal conclusions, including its ultimate conclusion as to the constitutionality of a law enforcement action, are reviewed de novo. United States v. Chavez, 281 F.3d 479, 483 (5th Cir.2002). The parties dispute where, along this simple dichotomy, seizure determinations lie.

The Government contends that this Circuit has split on the standard it applies to seizure determinations, and the Supreme Court's decision in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) requires us to review such questions de novo. Mask responds that our precedents have consistently reviewed seizure determinations for clear error,4 and Ornelas does not compel us to disregard our established precedent. We agree with the appellee.

The rules of intra-circuit stare decisis require us to abide by a prior panel decision until the decision is overruled, expressly or implicitly, by the Supreme Court or by the Fifth Circuit sitting en banc. Central Pines Land Co. v. United States, 274 F.3d 881, 893-94 (5th Cir.2001); United States v. Garcia Abrego, 141 F.3d 142, 151 n. 1 (5th Cir.1998). Despite the Government's assertions to the contrary, our Circuit is not split on the proper standard by which seizure determinations are to be reviewed. In United States v. Valdiosera-Godinez, we definitively established clear error review for such findings. 932 F.2d 1093, 1098 n. 1 (5th Cir.1991) ("We now hold that a district court's determination that a seizure has or has not occurred is a finding of fact subject to reversal only for clear error."). Subsequent panels have specifically applied this standard,5 while others, in reciting the fact/law dichotomy have not obviated our clear error precedent.6

Nor did the Supreme Court overrule Valdiosera-Godinez, either implicitly or explicitly, in Ornelas. 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911. Ornelas held that a determination as to whether an acknowledged seizure comported with the requirements of the Fourth Amendment was entitled to de novo review. It did not address the standard by which a determination as to whether a seizure actually occurred in the first place, thereby triggering Fourth Amendment protections, is to be reviewed. We are unaware of any Supreme Court decision that establishes a rule of law inconsistent...

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