U.S. v. Merkley, 92-4059

• Decision Date: 22 March 1993
• Docket Number: No. 92-4059,92-4059
• Citation: 988 F.2d 1062
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Kirk MERKLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1062

988 F.2d 1062

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Kirk MERKLEY, Defendant-Appellant.

No. 92-4059.

United States Court of Appeals, Tenth Circuit.

March 22, 1993.

Rehearing Denied May 5, 1993.

G. Fred Metos, Salt Lake City, UT, for defendant-appellant.

David J. Jordan, U.S. Atty., and Bruce C. Lubeck, Asst. U.S. Atty., Salt Lake City, UT, for plaintiff-appellee.

Before ANDERSON, BARRETT, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Ronald Kirk Merkley pleaded guilty to one count of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and one count of possession of a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c). Mr. Merkley entered those pleas pursuant to Fed.R.Crim.P. 11(a)(2), thereby preserving his right to appeal the district court's prior denial of his motion to suppress certain evidence allegedly obtained in violation of the Fourth Amendment. Merkley has perfected that appeal. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. ¹

On February 21, 1991, Melissa H. Dean, a bank employee, observed two men in a white pickup truck parked in a nearby lot as she returned to work from an appointment. Ms. Dean observed the driver, Merkley, yelling, laughing loudly, and beating his hands on the truck's dashboard. As she walked by the truck, she heard Merkley say, "I can't believe it, I'm going to kill her." After entering the bank, Ms. Dean asked the other employees to watch the vehicle. Upon observing similar behavior, a second employee went outside and, while pretending to get something from her car, obtained a description of the truck and its occupants and the vehicle's license plate number. Ms. Dean called the police and conveyed to them the above information.

Salt Lake City Police Officers Huie, Givens, and Guest were instructed to respond. Officers Givens and Guest arrived first in one vehicle. After parking the vehicle out of the truck's view, Officer Givens left the vehicle and observed the truck from around the corner of a building. Givens observed the driver, Merkley, beating his hands on the steering wheel and shouting at the passenger. When Officer Huie approached the front of the truck in his vehicle, Givens returned to his car and approached the truck from behind.

Merkley and the passenger were exiting the truck as the two police cars converged. With his left hand raised and his right hand on his pistol, Officer Givens stated, "Let me see your hands, put your hands up, I need to see your hands, I need to talk with you." Merkley continued to walk towards Officer Givens, who then grabbed Merkley's right arm and raised it behind his head. Merkley brought his left hand up on his own, at which point Officer Givens handcuffed him. While this occurred, Officer Huie approached with his weapon out and, while handcuffing the passenger, told the suspects that they were not being arrested but were being handcuffed for safety. A frisk of Merkley revealed a loaded .25 caliber pistol in his fanny pack. After Merkley's arrest for carrying a concealed weapon, a further search revealed cocaine on his person. Merkley's vehicle was impounded and searched, yielding various other drugs and firearms. The officers testified that the entire encounter lasted less than two minutes.

On appeal, Merkley does not challenge any of the searches subsequent to his arrest. Nor does he challenge the district court's determination that the officers possessed reasonable suspicion to effect an investigative detention. Rather, Merkley contends that the detention violated his Fourth Amendment rights because the circumstances surrounding the detention did not justify the use of firearms and handcuffs, thereby rendering the seizure unreasonable and the evidence seized as a result of the illegal detention inadmissible. We review the trial court's findings of fact for clear error, but the reasonableness of a seizure is a question of law which we review de novo. United States v. Butler, 904 F.2d 1482, 1484 (10th Cir.1990)

Law enforcement officers may temporarily detain a person for questioning or investigation where they have a reasonable and articulable suspicion that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). The scope of an investigatory stop, however, must be reasonably related to the suspicious circumstances which justified the stop in the first place. Id. at 20, 88 S.Ct. at 1879. Merkley contends that the display of firearms and the use of handcuffs were not reasonable under the circumstances surrounding his detention. We disagree.

"A law enforcement agent, faced with the possibility of danger, has a right to take reasonable steps to protect himself and an obligation to ensure the...