U.S. v. Miller, 76-1568
| Decision Date | 15 December 1976 |
| Docket Number | No. 76-1568,76-1568 |
| Citation | 546 F.2d 251 |
| Parties | UNITED STATES of America, Appellee, v. Mack W. MILLER, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Phillip S. Resnick, Minneapolis, Minn., for appellant.
Francis X. Hermann, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY and BRIGHT, Circuit Judges.
VAN OOSTERHOUT, Senior Circuit Judge.
Defendant Mack W. Miller has taken a timely appeal from his conviction by a jury upon Count II of an indictment charging receipt of a firearm by a previously convicted felon, the firearm having been transported in interstate commerce, in violation of 18 U.S.C. §§ 922(h) and 924(a). Defendant was sentenced to three years imprisonment. 1
The critical issue presented is whether a frisk of defendant's person for weapons which resulted in the finding of a gun in defendant's possession comported with Fourth Amendment principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For the reasons hereafter set out, we hold that it did not and reverse the conviction.
The circumstances of the frisk were developed at a pretrial hearing and are substantially undisputed. Four St. Paul police officers in possession of a search warrant, the validity of which is not challenged and which authorized the search of a designated St. Paul residence for narcotics, arrived at the designated residence for the purpose of executing the warrant.
Upon entering the premises, the officers found the defendant and two women there, in the kitchen. Defendant and one of the women were sitting at the kitchen table. The other woman was standing. So far as the record discloses, the officers had no information whatsoever with respect to the defendant.
Officer Keith Miller testified at the suppression hearing that upon the officers' entry of the premises he was assigned to the task of watching the defendant. He testified:
I stood in the kitchen watching the defendant and the other two women who were seated at the kitchen table to make sure they stayed there, and that they didn't interfere with the search.
He testified that the other officers proceeded to search the premises for narcotics and that narcotics were discovered in the refrigerator after a search of ten or fifteen minutes, and that the defendant was not interrogated or frisked until after the search. He further testified:
The younger woman wanted to go to the bathroom, and I told her at that time that she should remain seated and that the search would be completed shortly, and then she could do it at that time.
Mr. Miller said, "How long do I have to wait here," and he also said, "I am just here visiting this girl." He said both statements at different times during that ten- or fifteen-minute period.
After Sergeant Frank found the substance in the refrigerator, he walked over and asked me if I had any identification from Mr. Miller. I said no, I hadn't. He said, "I think we better do that now." I asked Mr. Miller for some identification, and I asked him to stand up, and because of the nature of how he was sitting at the table and his he had a shirt on, a white, bluish print shirt that was hanging over his pants, and because of that and the nature of him wanting to get out of there, I became a little concerned with that.
A pat-down search of the defendant followed which led to the discovery of the gun here involved. The trial court overruled the motion to suppress the gun. In a memorandum opinion the court determined that no probable cause for arrest of the defendant existed prior to the discovery of the gun but that the record supported a frisk for possible weapons for the preservation of the safety of the officers under Terry. The trial court in its unreported memorandum opinion states:
The manner in which the defendant moved closer to the table, his eagerness to leave, his presence at a scene where contraband was found, and the manner in which he wore his shirt untucked are quite possibly insufficient indicators of wrongdoing to give rise to probable cause to arrest. But the Court cannot say that a reasonably prudent man in the position of Patrolman Miller would not be warranted in the belief that his safety or the safety of his fellow officers was in danger, in light of these events. The cursory pat-down for possible weapons was proper under Terry, and the resulting seizure was not prohibited by the Fourth Amendment.
We completely agree with the finding that no probable cause for arrest was established prior to the frisk but disagree with the court's determination that a frisk for possible weapons for the safety of the officers was reasonable.
Terry holds that a stop and frisk is within the purview of the Fourth Amendment. Among other things, the Terry opinion holds:
It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person.
In this case there can be no question, then, that Officer McFadden "seized" petitioner and subjected him to a "search" when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner's personal security as he did. And in determining whether the seizure and search were "unreasonable" our inquiry is a dual one whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.
And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.
Terry discusses in detail the importance of a person's Fourth Amendment rights and in setting out the narrow standards of...
To continue reading
Request your trial
-
Lucero v. Bush
...weakens the officers' testimony that a reasonable basis existed on their part for fear of their safety." United States v. Miller, 546 F.2d 251, 254 (8th Cir.1976). Whether the officers reasonably believed that Chery was potentially dangerous remains to be seen as there are material facts in......
-
Sharpe v. U.S.
...of DEA agents, following valid investigatory field stop of a vehicle, constituted an illegal arrest); see also United States v. Miller, 546 F.2d 251 (8th Cir. 1976) (frisk for weapons following ten to fifteen minute house search pursuant to valid search warrant not valid under Terry, becaus......
-
State v. Thomas
...was no basis (absent authority under the warrant) for either his arrest or any search incident thereto. Similarly, in United States v. Miller, 546 F.2d 251 (8th Cir.1976), there were no grounds to arrest a man, present during the execution of a search warrant, when his only connection was t......
-
State v. Miller
...officer turned the defendant away at the door no officers' security problem of any kind would have presented itself. United States v. Miller, 546 F.2d 251 (8th Cir.1976). There is nothing in the evidence or in the trial court's findings indicating that the police officer, upon first seeing ......