United States v. Brown

• Decision Date: 12 May 2021
• Docket Number: No. 19-50250,19-50250
• Citation: 996 F.3d 998
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Antonio BROWN, aka James Anthony Brown, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

996 F.3d 998

UNITED STATES of America, Plaintiff-Appellee,

v.James Antonio BROWN, aka James Anthony Brown, Defendant-Appellant.

No. 19-50250

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2020 Pasadena, California

Filed May 12, 2021

Paul W. Blake, Law Offices of Paul W. Blake, Escondido, California, for Defendant-Appellant.

Mark R. Rehe, Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Robert S. Brewer, Jr., United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: Bobby R. Baldock,^* Marsha S. Berzon, and Daniel P. Collins, Circuit Judges.

COLLINS, Circuit Judge:

In Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that if an officer has reasonable articulable suspicion that a person is engaged in a crime, the officer may briefly detain that person to make a limited and appropriate inquiry, id . at 21–22, 88 S.Ct. 1868, and if the officer has reason to believe that the person detained may be armed with any sort of weapon, the officer may further conduct a limited protective frisk for such weapons, id . at 27–29, 88 S.Ct. 1868. Appellant James Antonio Brown contends that his encounter with two police officers in a motel parking lot did not comply with Terry 's limitations in multiple respects, and that, as a result, the heroin and other evidence the officers found on him should have been suppressed as fruits of a violation of his Fourth Amendment rights. We conclude that the officers complied with Terry and its progeny in all respects except one: in conducting the limited protective search for weapons that Terry authorizes, the officer here did not perform any patdown or other initial limited intrusion but instead proceeded directly to extract and examine an item in Brown's pocket. We conclude that, under Sibron v. New York , 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) —a companion case to Terry that was decided the same day—the officer's search of Brown's pocket exceeded the limited scope of what Terry permits and was therefore unreasonable under the Fourth Amendment. We reverse the district court's denial of Brown's motion to suppress the fruits of that search and Brown's subsequent conviction based on that evidence.

I

On the morning of November 15, 2017, El Cajon Police Department Officers Robert Wining and Robert Nasland responded to a radio call stating that motel staff at a downtown Econo Lodge Motel had reported two "transients" in the motel parking lot, one of whom was a white male who had a bike and who had been seen urinating in the bushes and the other of whom was a female.¹ The officers, who were in uniform, drove their patrol car over to the Econo Lodge and turned into the parking lot on the motel's south side. On the other side of the parking lot from the motel is a residential development, and the parking lot is separated from that development by a high concrete wall and an even taller wooden fence. Running along the wall is a slightly raised planter area, which in turn is supported by a relatively low retaining wall consisting of cinder blocks. When the officers arrived just past 11:00 AM, the parking lot was nearly empty, but there was a white U-Haul van parked, head-out, in one of the spaces farther down along the wall. As the officers entered the parking lot, they could not see anyone behind the U-Haul, but as they drove past the van, two men—later identified as James Brown and Jon Barlett—came into view seated on the low cinder block wall behind the van. The officers got out of their patrol car. Their body cameras were turned on and recorded the ensuing events.

Barlett is a white male who had a bike with him, so he fit the general description of one of the individuals provided in the radio call. Brown, however, did not meet the description of either of those individuals, because he is an African-American male and had no bicycle with him. Officer Wining testified that the two men look surprised to see the police, describing their reaction as a "deer-in-the-headlights look." Wining initiated a conversation, stating, "Howdy, guys," and asking, "What are we up to today?" Brown responded that he had come to "get some stuff out of the van," and Barlett stated that he was going to help Brown. Wining responded skeptically, telling Barlett "the motel called us because they saw you urinating back here in the bushes." Barlett responded, "they didn't see me," emphasizing the word "me." Wining then asked Barlett what his name was and, after he responded, Wining inquired if he had identification. While Barlett looked for his identification, Wining asked what room they were staying in, and Brown gave his room number. Wining then asked Brown if he had identification. After Brown felt the outside of his pants pockets, he said that his wallet was inside the motel. Barlett mentioned that there were "some other folks back there" and pointed to an area farther back in the parking lot. Wining said to Barlett, "You're not staying here, are you, Jon?" Barlett responded that he was not.

Wining then asked the two men directly, "So, do we have a drug deal going on here, or what do we got going?" Barlett mumbled a response, and Brown said, "A drug deal? No, sir." Wining, who had 22 years of experience as a policeman, stated that "that's not uncommon in this area, so don't—you don't need to look at me so surprised." At Wining's request, Brown supplied his name, date of birth, height, and weight. For almost the next full minute, Wining wrote down information and communicated over his radio. Brown then spoke up, saying, "Didn't you say your call was for him urinating in the bushes; what does this got to do with me?" After Wining reiterated what the call was about, Brown said, referring to Barlett, "he just barely rode up." Wining said, "OK, there was somebody on a bike mentioned. Alright? So, we're here just to check it out." Wining asked Brown if the manager could verify that he was staying at the motel, and Brown said yes and explained that he was staying with another person there.

The officers radioed in the identifying information about the two men, which took over one minute. Wining then asked if either of the men had any warrants. Brown said no, but Barlett answered that he had "just cleared up some," having been released on bond from jail only two weeks ago. Pointing to the visible needle marks on Barlett's arms, Wining asked him whether he was using heroin. Barlett said, "not anymore," but he acknowledged that he "ha[d] a history of it." Shortly thereafter, Brown's cell phone went off, and while still seated on the cinder block wall Brown engaged in a nearly minute-long casual conversation, laughing at one point at what the caller said. After the call ended, Wining asked Barlett where he had gotten his gold-colored watch. Barlett mumbled a response about Walmart, and Brown interjected, "you heard the old saying, everything that glitters ain't gold." Barlett said it was a "nice watch" and he "almost sold it for $40 the other day." Wining then inquired about a small Leatherman-brand multi-tool that was still in its bright-yellow packaging and that was sitting just next to Barlett on the top of the cinder block wall, between Barlett and Brown. Wining asked if Barlett was selling it to Brown, and Barlett said no and claimed that he just found the unopened package "under [a] bridge."

At this point, the encounter between the four men had lasted just over seven minutes. While asking about the multi-tool, Wining noticed that Brown "put his hands down to his sides" and that he then "reach[ed] his index finger into his right pocket." Wining walked over to Brown who raised his hands to his sides and said: "Oh, my bad, man, my bad." Wining ordered Brown to stand up and turn around. Wining explained, "I saw you reaching in that pocket," and when Brown denied that he had done so, Wining said, "Yeah, you were." Brown complied with Wining's instructions and allowed Wining to secure his arms behind his back in a finger hold. Pointing with his free hand to Brown's pants pocket, Wining asked, "What's in here?" Brown responded, "I'm not quite sure." Wining then stated "I'm going to check, OK?" Brown grunted a monosyllabic response that is unintelligible on the officers' body camera video. Wining then reached into Brown's pocket and pulled out a plastic bag. Brown claimed that it was coffee, but after inspecting it, Wining said "that is not coffee, James, that's heroin." Wining conducted a more thorough search of Brown, finding several thousand dollars, a number of unused syringes, and suboxone

strips used to treat opioid withdrawal.

The police subsequently obtained the motel's security camera footage from the hour immediately before Brown's and Barlett's encounter with the officers. It showed several people driving up to the vicinity of the U-Haul, briefly interacting with Brown, and then leaving.

Brown was charged with one felony count of possession of 35.35 grams of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Brown moved to suppress the items found during Wining's search, including the heroin and cash, on the basis that they were illegally obtained in violation of the Fourth Amendment. See Fed. R. Crim. P. 12(b)(3)(C). Brown argued, inter alia , that Wining had unlawfully seized Brown without adequate reasonable suspicion and that Wining's search of Brown's pocket was unreasonable because a "pat down for weapons does not allow further intrusion into a citizen's pockets." After an evidentiary hearing, the district court denied the motion, finding that Wining was credible and that his actions were "reasonable in light of the totality of the circumstances."

At trial, Brown testified that he never sold heroin to anyone and that he possessed the heroin that day only for his personal use. He testified that, at the time of his arrest, he was...