U.S. v. Pratt

• Decision Date: 27 January 2004
• Docket Number: No. 03-1450.,03-1450.
• Citation: 355 F.3d 1119
• Parties: UNITED STATES of America, Appellee, v. Shahid R. PRATT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

355 F.3d 1119

UNITED STATES of America, Appellee, v. Shahid R. PRATT, Appellant.

No. 03-1450.

United States Court of Appeals, Eighth Circuit.

Submitted: September 9, 2003.

Filed: January 27, 2004.

Larry C. Pace, argued, Kansas City, MO, for appellant.

Rudolph R. Rhodes, IV, argued, AUSA, Kansas City, MO, for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.

BEAM, Circuit Judge.

Shahid R. Pratt, a felon, entered a conditional plea of guilty to possessing ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In so doing, he preserved the right to appeal the district court's¹ denial of his suppression motion. Pratt now exercises that right. We affirm.

I. BACKGROUND

Officers Gary Snyder and Anthony Melkowski happened upon Pratt while on routine patrol in a marked police cruiser at around nine-o'clock on the evening of March 15, 2002, in Kansas City, Missouri. Pratt was walking eastbound in the middle of 43rd Street, near Tracy Avenue, even though sidewalks were provided on both sides of the street. Pratt had been arrested on prior occasions by Officer Snyder for drug violations, outstanding warrants, and traffic violations, so Officer Snyder recognized Pratt when he came into view. Officer Snyder also knew Pratt was a convicted felon and, on previous occasions, dispatch had informed Officer Snyder that Pratt was "10-31," meaning he had been armed during prior encounters with the police.

Officers Snyder and Melkowski approached Pratt in their cruiser. Pratt looked at the officers over his left shoulder twice, and then jogged to an adjacent open lot. The officers concluded he was trying to avoid them.

When Pratt reached the open lot, he leaned over and appeared to spit something from his mouth. Officer Snyder had observed him do the same thing in December 1999 during an arrest in the same area. On that occasion, Pratt spat crack cocaine.

The officers decided to do a "pedestrian check" on Pratt because he was violating a municipal ordinance and state law by walking in the street. They drove into the open lot, got out of the cruiser, and approached Pratt on foot. Upon their approach, Pratt turned his back to the officers and put his hands in his pants-pockets. The officers ordered him to remove them three times to no avail. Given Pratt's noncompliance and shifty behavior, the officers removed his hands from his pockets and placed him in handcuffs. The officers testified that they handcuffed Pratt to ensure both their and Pratt's safety and did not regard Pratt as being under arrest at that time.

Once in handcuffs, Officer Melkowski patted down Pratt's outer clothing and felt something in his front left pants-pocket. Believing the item was a weapon, Officer Melkowski then reached into the pocket and pulled out five rounds of live ammunition. A drug dog was then summoned to the scene to search for the item Pratt had spit from his mouth. Nothing was found.

Because the officers knew Pratt was a felon, he was placed under what the officers termed an "investigation arrest" for possessing ammunition. He was also given a ticket for walking in a street with sidewalks alongside.

Pratt moved to suppress the ammunition in the district court, contending that when Officer Melkowski reached into his pocket and retrieved the ammunition, he violated the Fourth Amendment prohibition on unreasonable searches because he exceeded the proper scope of a protective "frisk" under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The district court, adopting the report and recommendation of the magistrate judge, concluded the officers did not exceed the scope of Terry. Therefore, the suppression motion was denied.

Pratt appeals, making the same challenge he made in the district court. Pratt does not challenge the initial contact between him and the officers, nor the officers' use of handcuffs to detain him.

II. DISCUSSION

"We review the factual findings of the district court as to what the parties said or did for clear error; we review the district court's finding that the Fourth Amendment has not been violated de novo." United States v. Bloomfield, 40 F.3d 910, 918 (8th Cir.1994) (en banc). We may affirm the district court's denial of the motion to suppress on any ground the record supports. United States v. Snook, 88 F.3d 605, 608 (8th Cir.1996).

Pratt's warrantless search must fall within an exception to the warrant requirement of the Fourth Amendment to be reasonable. Relevant to this case are the exceptions for Terry searches and searches incident to arrests. Terry provides an exception to the warrant requirement for limited searches (i.e., "frisks") of persons "stopped" by police if the police reasonably suspect the individual is armed. This type of search is limited to a pat-down of the individual's outer clothing, but the officer may seize items from the individual's pockets if the incriminating nature of the item is immediately apparent through the officer's sense of touch. See Minnesota v. Dickerson, 508 U.S. 366, 375-77, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

Also, if an officer has arrested the individual, the officer may search the individual's person incident to that arrest and may reach into his pockets. United States v. Robinson, 414 U.S. 218, 226, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). A search incident to arrest is justified by the concern for officer safety and the need to collect evidence of the offense. Id. at 234, 94 S.Ct. 467. But, the presence of either justification need not be established in a particular case. That is, officers need not have any reason to think the individual is armed or that evidence of the crime will be found on his person. It is the fact of arrest that enables the officer to conduct a search, not a particularized suspicion as to the suspect's dangerousness. Id. at 235-36, 94 S.Ct. 467. Searches incident to arrests are not limitless, but they are unconstrained by the limits enunciated in Terry and its progeny regarding frisks.

To determine which search standards apply to Pratt, we must determine whether he was arrested or stopped. The standard for determining when police-citizen contact constitutes an arrest for purposes of a search incident to arrest is unclear. The Fourth Amendment itself does not mention arrests or stops; rather it protects individuals from unreasonable "seizures." Traditionally, the term "arrest" denoted a seizure of the person. Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Thus, all arrests were seizures and vice versa, and probable cause to arrest was always required. Id. A person was, and still is, "seized" by "the slightest application of physical force" or when he submits to a "show of authority." California v. Hodari D., 499 U.S. 621, 625, 628-29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). The test for a seizure by "show of authority" is objective and asks whether, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 628, 111 S.Ct. 1547 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)).

The traditional equivalence of seizures of the person and arrests was clouded by Terry. Terry carved out an exception to the probable-cause requirement. Specifically, Terry allows officers to make minimally intrusive seizures so long as there exists reasonable suspicion that criminal activity is afoot. These seizures have been dubbed "stops." Post-Terry, the term "arrest," or "de facto arrest," has been used to describe those seizures that exceed the bounds of Terry — those seizures that, given their intrusiveness generally or in a given case, can be justified only upon a showing of probable cause. See, e.g., United States v. Bell, 183 F.3d 746, 749 (8th Cir.1999) (stating that exceeding the scope of Terry constitutes a de facto arrest which must be accompanied by probable cause); Kaupp v. Texas, 538 U.S. 626, 123 S.Ct. 1843, 1847, 155 L.Ed.2d 814 (2003) (concluding that "removal from one's house in handcuffs on a January night with nothing on but underwear for a trip to a crime scene on the way to an interview room at law enforcement headquarters" could not be justified on anything less than probable cause).

Though a seizure exceeding what is allowed under Terry is a de facto arrest, an arrest is not limited to that which exceeds Terry. As the Court stated in Hodari D.: "Terry unquestionably involved conduct that would constitute a common-law seizure; its novelty (if any) was in expanding the acceptable justification for such a seizure, beyond probable cause." 499 U.S. at 627 n. 3, 111 S.Ct. 1547. Thus, the term "stop" is a label attached to certain seizures that are justified by reasonable suspicion. However, if an officer has probable cause, any inquiry into other acceptable justifications for the seizure is largely superfluous. See Atwater v. City of Lago Vista, 532 U.S. 318, 347 n. 16, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) ("Terry certainly supports a more finely tuned approach to the Fourth Amendment when police act without the traditional justification that ... probable cause (in the case of arrest) provides; but at least in the absence of `extraordinary' circumstances, there is no comparable cause for finicking when police act with such justification." (citation omitted)); United States v. Houston, 892 F.2d 696, 703 (8th Cir.1989) (holding that probable cause existed at time of alleged "stop"; thus, it was not "necessary to determine whether a Terry stop was justifiable"). Thus, when police act upon probable cause to arrest, the term "seizure" is synonymous with the term "arrest" under the Fourth Amendment.

The fact that a seizure of a person predicated upon probable cause is properly regarded as an arrest, is fully supported by case law in the analogous forum of traffic stops. See United States v. $404,905.00 in U.S. Currency, 182 F.3d 643,...