U.S. v. Merritt, 80-1463

Citation695 F.2d 1263
Decision Date28 December 1982
Docket NumberNo. 80-1463,80-1463
Parties12 Fed. R. Evid. Serv. 439 UNITED STATES of America, Plaintiff-Appellant, v. David Allen MERRITT, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Janis E. Chapman, Asst. U.S. Atty., Denver, Colo. (Joseph F. Dolan, U.S. Atty., Denver, Colo., with her on the brief), for plaintiff-appellant.

E. Ricardo Gonzales, Denver, Colo., for defendant-appellee.

Before DOYLE and SEYMOUR, Circuit Judges, and ANDERSON, District Judge *.

ALDON J. ANDERSON, District Judge.


In the early morning hours of March 21, 1980, the defendant sat with others in a truck parked on a residential street in Denver, Colorado. While sitting there, they were confronted by police from the Denver Police Department and ordered out of the truck. At the time, the police were looking for a Texas fugitive wanted for murder. They had been informed he may be coming, and believed he might be one of the people in the truck.

After the three people got out of the truck, it was searched for weapons. The police found a .22 caliber revolver located under the driver's seat.

The driver, defendant Merritt, was subsequently indicted under 18 U.S.C. Appendix section 1202(a) for possession of a firearm, as a previously convicted felon. 1 Defendant later moved to suppress the revolver, as well as certain inculpatory statements that he allegedly made shortly after the revolver was found when interviewed by an F.B.I. agent. He contended at the hearing that the police lacked sufficient justification for confronting him and his companions in the truck. Therefore, the gun and statements must be suppressed. In the alternative, the statements were not made voluntarily and thus should be suppressed on that basis as well.

The district court found that the police in stopping and detaining defendant had indeed violated his Fourth Amendment rights. Accordingly, it suppressed both the revolver and defendant's statements as fruit of the Fourth Amendment violation. Since this finding required granting defendant's motion in its entirety, it was unnecessary for the district court to rule whether defendant's statements had been made voluntarily.

The United States has taken this interlocutory appeal from the order of the district court, as authorized by 18 U.S.C. section 3731. We have carefully reviewed the Record on Appeal in this case, as well as the briefs of counsel and the arguments presented at oral argument. We conclude that the district court's ruling that defendant's Fourth Amendment rights were violated was contrary to law.


The transcript of the suppression hearing reveals some conflict in the testimony of the witnesses. The facts are recounted below resolving all disputes in favor of defendant's version of what happened.

As previously indicated, defendant's encounter with the Denver police and subsequent indictment came about as a by-product of a police search for one Thomas Lloyd Gerry, wanted in Texas for murder. On March 11, 1980, Sergeant Talty of the Denver Police Department, who testified at the hearing, was advised by his superior, Detective Wattles, that Gerry might be found at 5077 Sherman Street in Denver. (18) ** Sergeant Talty was told that Gerry was wanted in Texas, and that he was heavily armed and should be considered dangerous. (18)

Talty proceeded to the residence at 5077 Sherman. (19) Due to the evident risk of Sergeant Talty entered the house with several other officers (19) at approximately 10:45 p.m. that evening, but Gerry was not there. Two female juvenile runaways were found in the house. 2 (20, 32) One of them indicated that Gerry had been staying there, and should be returning later that evening. 3 (19, 22)

apprehending such a dangerous suspect, he called in the Denver police SWAT team to surround the house in the event resistance was encountered. (18)

While in the house Sergeant Talty observed in the front bedroom an impressive array of weapons and ammunition. There were at least three handguns, one shotgun, and what appeared to be an automatic rifle, together with about 200 rounds of ammunition for the automatic rifles, several for the shotgun, and 30 to 40 rounds for the various handguns. In addition there was ammunition for a handgun the police could not find. (20-21)

After the police had observed the inside of the house, one of the female runaways was taken into custody by uniformed officers. (32) At that point some officers stayed at the house with the other female, (19) while Sergeant Talty and the majority of officers left in their vehicles to set up a stakeout throughout the neighborhood. (19)

The stake-out continued for several hours until Officer Diehl, who also testified at the hearing, was instructed by Sergeant Shinofield, a SWAT team supervisor (21-22) participating in the stake-out, that he should proceed to 5077 Sherman to assist in taking the remaining female runaway into custody. (4) Diehl was told to move quickly because he was in a marked vehicle that would alert Gerry to police suspicion if Gerry were to show up while the marked car was parked outside. (4)

Officer Diehl approached 5077 Sherman with his partner (5) at about 1:00 a.m. (21, 28) the morning of March 12. Just as he pulled up to the residence on Sherman, he saw a white pickup truck heading east on 51st Street pull up to the intersection of 51st and Sherman, just north of the house. (5) Diehl observed the truck stop at the intersection, and then continue east on 51st Street.

When Officer Diehl and his partner entered the house to take the female into custody, they and the four other officers already there (5) were advised by Sergeant Shinofield, the SWAT team supervisor. Sergeant Shinofield was located in an unmarked car facing south on Sherman Street, north of the intersection of Sherman and 51st Streets, in a position where he could view, across the intersection, the residence at 5077 Sherman. (6) The officers in the house, and apparently the other police involved in the stake-out, were notified that, as Officer Diehl testified, 4 "a white pickup truck that had been at the stop sign just as we entered the house had come [sic] around the block, and pulled up behind him, and that it had turned its lights out and there appeared to be several people in the truck, and they had crouched down, and he asked for some officers to go up and assist him in finding out who the people were." (6)

The officers then left 5077 Sherman. Officer Diehl and his partner placed the remaining female runaway in their cruiser (8) and drove to a point about 40 feet south of the suspect vehicle, and across the street. (8) Simultaneously two other officers 5 The officer driving this car got out of it, rested a shotgun on the top of the car, and told defendant and the two other occupants of the car to get out. (52) At the same time, his partner approached the vehicle from the other side. (52) Meanwhile, Officer Diehl's partner, Officer Schulke, had walked north from Diehl's cruiser to a point directly across the street from the white truck. (8, 53) He, too, held a shotgun on the three suspects. (53) Officer Diehl stood by his cruiser to keep an eye on the female runaway. (8)

who had circled the block pulled their cruiser up behind the suspect vehicle. (7)

The suspects were ordered to move to the rear of the truck, (53) where the police met them and told them to "freeze." (54) One of the two shotguns was pointed at defendant throughout the incident. (53) Shortly there were six or seven police cruisers at the scene, and roughly 12 to 15 police, (53) two or three of whom carried shotguns. (58)

The police obtained identification from the three suspects. (10) One was the defendant, David Allen Merritt; one his common-law wife, Debra Mitchell; the third was Thomas Lloyd Gerry.

After they were removed from the truck, Sergeant Talty (who had been to the house at 10:45 p.m. and then joined the stake-out) appeared on the scene. (57) Talty asked one of the officers present if the truck had been checked for weapons, and was advised that it had not. (24) He then searched the truck with his flashlight, (29) and found a loaded .22 revolver protruding about a quarter of an inch out from under the driver's seat. (25) At this point Sergeant Talty told an officer that he had found a gun to which, according to Talty's testimony, Merritt offered the response "the gun belongs to me." 6 (33) Sergeant Talty then took the weapon and gave it to Officer Diehl. (25-26) Merritt was arrested. 7


The district court suppressed the revolver, as well as inculpatory statements allegedly made by defendant at the scene and several days later to an F.B.I. agent, on the ground that the police detention of defendant violated his Fourth Amendment rights. In its remarks at the conclusion of the hearing, the court stated two alternative bases for this conclusion. First, it found that the police did not, at the time they ordered defendant from his truck, have the reasonable suspicion necessary to make an investigatory stop. Second, the district court indicated that even if there were reasonable suspicion to make a stop, the police conduct here in fact constituted an arrest, not a stop, for which there was no probable cause.

On this appeal the Government concedes the police, when the stop was made, did not have probable cause to make an arrest. See Brief of Appellant, pp. 7-8. It is argued, however, that the information known to the police before the truck was confronted gave rise to a reasonable suspicion sufficient to justify stopping the truck, and that the search was conducted properly as an incident to the stop.

Thus, three issues must be resolved: 1) Did the police have reasonable suspicion to stop and interrogate the occupants of the truck?; 2) Was the search of the truck incident to the stop proper?; and 3) Did the police, due to the manner in which they confronted and detained defendant and his


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