U.S. v. Mikulski, No. 01-4169.
| Decision Date | 31 January 2003 |
| Docket Number | No. 01-4169. |
| Citation | 317 F.3d 1228 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph Russell MIKULSKI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Benjamin A. Hamilton, Salt Lake City, UT, for the Defendant-Appellant.
Wayne T. Dance, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the brief), Salt Lake City, UT, for the Plaintiff-Appellee.
Before KELLY, BALDOCK, and HENRY, Circuit Judges.
Joseph Russell Mikulski was charged in a one-count indictment with possession of stolen mail in violation of 18 U.S.C. § 1708. After the district court denied Mr. Mikulski's motion to suppress, Mr. Mikulski entered a conditional plea of guilty to the charge. Mr. Mikulski received a sentence of sixty months of imprisonment. He now appeals the district court's denial of his motion to suppress. He argues that the evidence should be suppressed because (1) the officers exceeded their jurisdictional authority when they arrested him; (2) the officers lacked reasonable suspicion to detain him; and (3) the subsequent detention was also unlawful. We hold that the officers' actions were permissible under Utah Code Ann. § 77-9-3, which allows an officer to exercise authority outside of his established jurisdiction when a public offense is committed in an officer's presence. We also hold that the initial questioning and the subsequent detention of Mr. Mikulski were permissible. For the reasons stated below, we affirm the decision of the district court.
The background facts are not in dispute, and we reiterate them as found by the district court. On February 9, 2000, Detective Wally Perschon was assisting other deputies from Utah County, Utah in trying to recover stolen property. The property had been stolen in Utah County, but information from an informant suggested that the property was (1) located in the West Valley-Kearns area of Salt Lake County at a house located at 4560 West 5780 South, and (2) in the possession of a man named Johnnie Green. Detective Perschon did not have a physical description of Mr. Green, other than that he was a white male who drove a truck.
Detective Perschon, accompanied by three other members of the Utah County Sheriff's office, Detectives Richard Case, Darrin Durfey, and Sergeant Jerry Monson, traveled to Salt Lake County to locate the property and to talk to Mr. Green. No other officers from either Salt Lake County or the West Valley City Police Department were contacted or present at any time during the Utah County officers' visit to Salt Lake County until after Mr. Mikulski's arrest.
Upon reaching the address at approximately 9:00 pm, Sergeant Monson and Detective Case knocked on the door of the house at 4560 West 5780 South. The occupants informed them that Mr. Green had just left, and the officers waited inside the house. In order to avoid detection, Detectives Perschon and Durfey waited for Mr. Green approximately one block down the street from the residence in an unmarked green vehicle.
After about fifteen minutes, a man and a woman exited the house to smoke cigarettes on the porch. During this time, a pickup truck approached the house and pulled to the side of the street opposite to oncoming traffic, right before the house's driveway. An individual exited the passenger's side and approached the house. According to testimony from Detective Perschon, the individuals on the porch appeared to wave the passenger off, and the individual returned to the truck.
Detective Perschon, with Detective Durfey, suspecting that Johnny Green was in the truck, drove up to the truck. Detective Perschon did not use emergency lights and he did not block the truck. The detectives dressed in plainclothes, approached the truck, one on each side of the pickup. While approaching the vehicle, Detective Perschon noticed the truck lacked a front license plate. The detectives identified themselves and showed the truck's occupants, a male driver and a female passenger, their badges. Detective Perschon testified that he was uncertain at what point in time Detective Durfey and Sergeant Monson joined him around the truck. Detective Perschon testified that as he approached the vehicle, Mr. Mikulski appeared "very nervous" but "[n]ot aggressive." Rec. vol. II, at 47 (Motion to Suppress Hr'g, dated Aug. 4, 2000). Detective Perschon asked the driver who he was, and the driver identified himself as Joseph, but stated that he had no identification.
Detective Perschon asked again for identification, and the driver again stated that he had none. At this point, Detective Perschon suspected that the driver was hiding his identity. Detective Perschon testified that other than the missing front plate and a potential parking violation, he had no reason to believe that Mr. Mikulski had committed a crime.
Detective Perschon testified that he then asked the driver to step out of the truck to search him for identification and to check for weapons. Detective Perschon admitted that although he had no reason to believe that the driver was armed, his standard practice was to conduct a frisk in the interest of officer safety. Detective Perschon also testified that Mr. Mikulski's nervous demeanor made the detective concerned for his own safety.
Before conducting a pat-down search, Detective Perschon asked the driver if he had any weapons on his person. The driver responded that he had a knife on his belt. Detective Perschon told Mr. Mikulski to put his hands on the vehicle where the detective could see them. Detective Perschon performed a pat-down search, which also revealed a pistol in the driver's left front pocket. Detective Perschon placed the driver under arrest for carrying a concealed firearm.
Detective Perschon told the driver not to move, and requested assistance in securing the weapon. After handcuffing Mr. Mikulski, Detective Perschon conducted a further pat-down search that revealed drugs in the driver's left shirt pocket. Detective Perschon also found a wallet on the driver with several pieces of identification, with various names. Mr. Mikulski identified himself as Joseph Mikulski. Detective Perschon directed another officer to run a records check, because of the conflicting identifications. Mr. Mikulski was eventually turned over to Salt Lake County authorities. The Salt Lake County Sheriff's Office agreed to transport Mr. Mikulski to jail and to impound the vehicle.
After contacting the Salt Lake County authorities, Detective Perschon testified that he conducted a vehicle inventory, because "[the Salt Lake County authorities] didn't want to." Rec. vol. II, at 61. The inventory revealed a backpack containing multiple and conflicting pieces of identification, and equipment to make false identifications, credit card statements, and bills that were not in Mr. Mikulski's name, other people's property, cameras, telephones, and more drugs. The stolen mail formed the predicate for the indictment for violation of 18 U.S.C. § 1708.
In reviewing the district court's denial of Mr. Mikulski's motion to suppress, we view the evidence in the light most favorable to the district court's determination and accept the factual findings of the district court unless they are clearly erroneous. United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997). Our ultimate determination of reasonableness under the Fourth Amendment is a question of law that we review de novo. See id.
Mr. Mikulski, in challenging the district court's denial of his motion to suppress, argues that (1) the officers exceeded their authority by exercising power beyond the limits of their jurisdiction in violation of Utah Code Ann. § 77-9-3; (2) the initial encounter was not consensual; and (3) the subsequent detention and pat-down search were also unlawful. First, we consider Mr. Mikulski's charge that the officers acted unlawfully in exceeding their jurisdiction. We then turn to the balance of Mr. Mikulski's arguments.
Mr. Mikulski contends that when the Utah County officers decided to venture into Salt Lake County to locate Johnnie Green, that they were required to notify Salt Lake County authorities, pursuant to Utah Code Ann. § 77-9-3, which adopts the Uniform Act on Fresh Pursuit. The statute provides that:
(1) Any peace officer authorized by any governmental entity of this state may exercise a peace officer's authority beyond the limits of such officer's normal jurisdiction as follows:
(a) when in fresh pursuit of an offender for the purpose of arresting and holding that person in custody or returning the suspect to the jurisdiction where the offense was committed;
(b) when a public offense is committed in such officer's presence;
(c) when participating in an investigation of criminal activity which originated in the officer's normal jurisdiction in cooperation with the local authority; or
(d) when called to assist peace officers of another jurisdiction.
(2) (a) Any peace officer, prior to taking any action authorized by Subsection (1), shall notify and receive approval of the local law enforcement authority, or if the prior contact is not reasonably possible, notify the local law enforcement authority as soon as reasonably possible.
(b) Unless specifically requested to aid a peace officer of another jurisdiction or otherwise as provided for by law, no legal responsibility for a peace officer's action outside his normal jurisdiction, except as provided in this section, shall attach to the local law enforcement authority.
Utah.Code Ann. § 77-9-3 (emphasis added).
The government cites little helpful authority to directly support its contention that upon discovery of the partially loaded firearm, in the interest of officer safety, exigent circumstances existed to justify the warrantless arrest. Rather, the government curiously cites Ross v. Neff, 905 F.2d 1349 (10th Cir.1990), where we...
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