U.S. v. Palmer

• Decision Date: 26 July 1979
• Docket Number: No. 79-1282,79-1282
• Citation: 603 F.2d 1286
• Parties: UNITED STATES of America, Appellee, v. Lawrence E. PALMER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1286

603 F.2d 1286

UNITED STATES of America, Appellee, v. Lawrence E. PALMER, Appellant.

No. 79-1282.

United States Court of Appeals Eighth Circuit.

Submitted June 11, 1979.

Decided July 26, 1979.

T. Scott Richardson of Richardson & Carnasiotis, St. Louis, Mo., for appellant.

David V. Capes, Asst. U. S. Atty., St. Louis, Mo., for appellee; Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on the brief.

Before HEANEY and STEPHENSON, Circuit Judges, and MARKEY, ^* Chief Judge.

STEPHENSON, Circuit Judge.

Defendant Lawrence E. Palmer appeals his conviction ¹ of being in possession of a firearm after having been convicted of a felony in violation of 18 U.S.C. § 1202(a)(1) (Appendix). Appellant contends that the stop and search which resulted in the seizure of his firearm was an unconstitutional violation of his Fourth Amendment rights. Because the circumstances do not justify a reasonable suspicion on the part of the police officer that appellant was involved in criminal activity and also because there is no indication that appellant was stopped pursuant to a plan detailing neutral limitations on the conduct of individual officers, we hold that the stop and search was illegal and therefore reverse the conviction.

Before St. Louis County Police Officer Gary T. Lottmann commenced his evening patrol on October 20, 1977, he was informed that a racial incident had occurred at Riverview Gardens High School and that it would continue into Castle Point, the high crime, racially mixed, residential area that he would be patrolling. Lottmann had been on the police force approximately one year and had previously patrolled this area. Officer Lottmann was instructed to intensify his patrol so that people in the neighborhood would realize that the police were circulating in order to hold down possible conflicts. He was also instructed to discover the reasons for any street fights and to talk to the parents of the youths involved in any fights so that the combatants would be discouraged from continued fighting. One way in which Officer Lottmann intensified his patrol was by making pedestrian stops during which he filled out a field interview report form. This report consists of the pedestrian's name, address, date of birth, all relevant identification, driver's license, physical and clothing descriptions, and the place and time the pedestrian was stopped.

Between 4:00 p. m. and 7:00 p. m. Officer Lottmann broke up three fights between white and black Castle Point youths. No arrests were made, but Officer Lottmann recorded the names and addresses of the youths. Lottmann was informed by the combatants, their parents, and some spectators that they were arming themselves for their own protection because they were not going to be assaulted without having a means of retaliation. He also learned that a gang in the neighborhood was looking for a 5'7 black, male teenager in connection with the assault of a white female which had occurred at the Riverview Gardens High School earlier in the day.

At approximately 9:00 p. m. Officer Lottmann observed appellant Palmer and Sherman Burks walking down a residential street. Lottmann stopped his police car, got out, waved his hand and called for them to come over towards the car. Lottmann's stated purpose for the stop was to fill out field interview reports and also to ask if Palmer and Burks were aware of any upcoming gang fights. Appellant Palmer walked towards the policeman but Burks walked at an angle where he maintained his distance away from the officer. Officer Lottmann called to Burks a second time, and as Burks came over Lottmann observed that he appeared nervous and had his left hand in his coat pocket. When asked for identification, Burks told Lottmann his name, but began stuttering and fidgeting.

When Officer Lottmann stepped forward Burks jerked back, so Lottmann grabbed Burks' right coat pocket. The officer felt a hard object, reached inside and found a pocketknife. Burks jerked again and Lottmann grabbed the left coat pocket. Lottmann felt Burks' hand and another hard object, reached inside and retrieved a gun. Lottmann then arrested Burks for carrying a concealed weapon. Turning to appellant Palmer, who had been standing still during this sequence of events, Officer Lottmann asked him to place his hands on the car. Lottmann conducted a patdown search of appellant and discovered a .45 automatic in the small of his back. Appellant was then arrested for carrying a concealed weapon.

Prior to trial Palmer filed a motion to suppress the firearm as evidence on the grounds that it had been unlawfully seized in violation of his rights under the Fourth Amendment. The matter was referred to a United States magistrate, who held hearings on the motion on March 2 and 8, 1979. Officer Lottmann was the only witness during these hearings. The magistrate recommended that Palmer's motion to suppress evidence be denied. ²

The United States and Palmer submitted a written stipulation that the case be tried upon their stipulated facts and upon the transcript of the March suppression hearings. In the stipulation Palmer reserved his right to appeal any judgment which denied his motion to suppress the firearm as evidence. The district court denied Palmer's motion to suppress evidence, ³ found him guilty, and sentenced him to eighteen months confinement. Palmer now comes before this court contending that he was subjected to an unreasonable search and seizure. The thrust of Palmer's argument in this appeal is that the initial stop was unreasonable.

The difficult questions before this court are:

(1) Whether the racial tension and related incidents preceding this on-the-street encounter justified the officer's intrusion upon appellant's right to personal security.

(2) Whether the officer stopped appellant pursuant to a plan which circumscribed the officer's discretion by placing explicit, neutral limitations on his conduct. See Brown v. Texas, --- U.S. ----, ----, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

Appellant Palmer and Burks were protected by the Fourth Amendment's proscription against unreasonable search and seizure as they walked down the street in Castle Point. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). In Terry the Supreme Court ruled that a dual inquiry is necessary in determining whether a warrantless search and seizure are unreasonable. Therefore, we must consider "whether the officer's action was justified at its inception," and secondly, "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 19, 20, 88 S.Ct. at 1879. Appellant does not contend that Officer Lottmann's actions were unreasonably related in scope to the circumstances, but argues on appeal that the officer's action in stopping him was unjustified.

When Officer Lottmann stopped appellant for the purposes of obtaining identification and of soliciting information about gang fights, he performed a seizure subject to the reasonableness requirement of the Fourth Amendment. "(W)henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Id. at 16, 88 S.Ct. at 1877; United States v. Wright, 565 F.2d 486, 488 (8th Cir. 1977), Cert. denied, 435 U.S. 974, 98 S.Ct. 1621, 56 L.Ed.2d 67 (1978). A seizure may be accomplished either by physical restraint or by sufficient show of authority. Terry v. Ohio, supra, 392 U.S. at 19 n. 16, 88 S.Ct. 1868. The Terry seizure requirement is fulfilled when "it is apparent from the circumstances that the individual was not free to ignore the officer and proceed on his way." United States v. Pope, 561 F.2d 663, 668 (6th Cir. 1977). Officer Lottmann stopped his car, got out, then motioned and called for appellant and his companion Burks to walk across the street towards him. Burks did not walk towards the car in compliance with the command ⁴ so Lottmann called a second time, which indicates that the pair were not free to continue down the street. Clearly Lottmann's actions constituted a sufficient show of authority to restrain appellant's freedom of movement, therefore appellant was seized.

In determining whether this seizure has complied with the reasonableness requirement of the Fourth Amendment, we must balance the public interest against the appellant's competing interest of being free from arbitrary interference by law officers. Brown v. Texas, supra, --- U.S. at ----, ----, 99 S.Ct. 2637; United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In this balancing process we follow the standards laid down by the Supreme Court in Brown v. Texas, supra, --- U.S. at ----, 99 S.Ct. at 2640:

A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. * * * To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.

Id. (citations omitted).

First we consider whether Officer Lottmann possessed specific, objective facts which indicated that the initial seizure of appellant Palmer was justified. In his testimony before the United States magistrate, Lottmann identified certain facts which he knew prior to the stop and upon which he based his authority to stop appellant and his companion. These facts are:

(1) He would be patrolling alone in a high crime area.

(2) A racial incident in which a black youth had assaulted a white female had occurred at a local high school earlier that same day prior to Lottmann going on duty.

(3) Racial unrest...