United States v. Orman ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10398
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00403-DGC
DALE WASHINGTON ORMAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
April 18, 2007—San Francisco, California
Filed May 22, 2007
Before: Alfred T. Goodwin, Dorothy W. Nelson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
6009
6012 UNITED STATES v. ORMAN
COUNSEL
Milagros A. Cisneros, Assistant Federal Public Defender,
Phoenix, Arizona, for the appellant.
Michael A. Lee, Special Assistant United States Attorney,
Phoenix, Arizona, for the appellee.
OPINION
CALLAHAN, Circuit Judge:
Dale Washington Orman was convicted of unlawful pos-
session of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2), pursuant to a conditional guilty plea. His con-
viction stems from the seizure of a handgun by an off-duty
police officer at a Phoenix mall that prohibits patrons from
carrying weapons while on the premises. On appeal he chal-
lenges the district court’s denial of his motion to suppress the
firearm, arguing that he did not consent to the seizure of the
gun and that the seizure required reasonable suspicion or
probable cause that a crime had been committed. He argues
further that neither reasonable suspicion nor probable cause
existed and that the search was not justified for officer safety
purposes.
FACTS & PROCEDURAL HISTORY1
On August 20, 2004, at approximately 3:45 p.m., Orman
and his wife entered the Paradise Valley Mall in Phoenix. An
1
The facts are taken from the district court’s order granting in part and
denying in part Orman’s suppression motion. Officers Ferragamo, Tomasi,
Larson and Bernal, mall director Hoskinson, a defense investigator, and
Orman testified at the suppression hearing. The district court found the
officers’ testimony more credible than Orman’s and resolved factual dis-
putes in the government’s favor.
UNITED STATES v. ORMAN 6013
employee of the local utility company, Arizona Public Service
(“APS”), reported to mall personnel that he observed a man
(later identified as Orman) place a handgun in his boot before
entering the mall. The APS employee described the man as
white, wearing a white tank top, and covered with tattoos. He
reported that the man entered the southwest area of the mall
near Starbucks.
Mall security director Donald Hoskinson received this
information by radio, and contacted Officer John Ferragamo
of the Phoenix Police Department, who was working at the
mall as an off-duty police officer. With the help of another
security officer who advised Hoskinson by radio that he had
seen the man in question, Officer Ferragamo located Orman
near Dillard’s department store at the northeast end of the
mall. Orman matched the physical description provided by the
APS employee.
Officer Ferragamo approached Orman, and from a distance
of about six to eight feet asked “excuse me, may I speak to
you?” Orman said “sure” and Ferragamo motioned Orman
away from the foot traffic and toward a store window. Once
away from the flow of foot traffic, Ferragamo told Orman that
he had information that Orman may be carrying a gun and
asked Orman if that were true. Orman admitted to carrying a
gun and apologized. Ferragamo did not see a gun in Orman’s
boot, but he noticed a small bulge under Orman’s shirt and
asked Orman where the gun was located. Orman pointed to
his waist band and Ferragamo retrieved a 9 mm Glock handgun.2
Hoskinson, who was wearing business clothes, did not par-
ticipate in the encounter. He remained about 20 feet behind
and to the left of Ferragamo. Officer Brody Tomasi, who was
also working as an off-duty police officer at the mall,
2
Orman testified that he denied having a gun in his boot and never told
Ferragamo that he had a gun in his waistband. Instead, he claimed that he
was patted down for the gun.
6014 UNITED STATES v. ORMAN
approached the Dillard’s area after hearing about the sus-
pected gunman on his radio. He stopped about 10 feet from
Ferragamo and Orman, behind and to the left of Orman. He
monitored the situation. He did not draw his gun or participate
in the contact.
Two other police officers, Roger Larson and Oscar Bernal,
entered the mall after being informed by security about a man
with a gun. Officer Larson approached Ferragamo and Orman
while they were talking by the storefront after Ferragamo had
retrieved the handgun. Larson observed the situation as calm
and Orman as being cooperative.
Ferragamo then informed Orman that he wanted to con-
tinue the conversation in the mall security office.3 Orman
agreed, and he and his wife accompanied Ferragamo and
Tomasi to the office. Orman was not handcuffed and was not
asked about the gun during the walk. Upon reaching the
security office, Ferragamo placed Orman under arrest for car-
rying a concealed weapon.4 After completing a records check,
Ferragamo read Orman his Miranda rights and questioned
him. According to Ferragamo, Orman confirmed his criminal
history and explained that the gun belonged to his wife and
that he took it into the mall because they did not want to leave
it in their open air vehicle.5
3
Orman testified that immediately after Ferragamo retrieved the gun,
Ferragamo asked him if he had ever “been busted” and done “hard time.”
4
Arizona Revised Statute § 13-3102(A) prohibits the carrying of a con-
cealed weapon without a permit, and possession of a deadly weapon by
a prohibited possessor. A convicted felon is both a prohibited possessor
and ineligible to obtain a concealed weapons permit. Ariz. Rev. Stat. § 13-
3101(A)(6), 13-3112(E)(3).
5
In contrast, Orman testified that he did not answer any questions for
Ferragamo once they arrived in the mall security office and he never told
Ferragamo that he and his wife did not want to leave the gun in their vehi-
cle.
UNITED STATES v. ORMAN 6015
Orman was charged in federal court with being a felon in
possession of a handgun. He moved to suppress the seizure of
the gun and statements made at the scene, arguing that Ferra-
gamo lacked reasonable suspicion to detain him because (1)
the APS employee tip was not reliable, and (2) the tip did not
establish that Orman was committing a crime because carry-
ing a concealed weapon is authorized under state law. He also
argued that the encounter was not consensual and immedi-
ately custodial, requiring probable cause and Miranda warn-
ings.
The district court granted the motion in part. It concluded
that Ferragamo’s conversation with Orman in the mall was
consensual. Alternatively, the district court held that Ferra-
gamo had reasonable suspicion to detain Orman. It also held
that Orman was not subject to custodial interrogation in the
mall. However, the district court concluded that Ferragamo
lacked probable cause to arrest Orman because, at the time of
arrest, Ferragamo did not know whether Orman had a permit
to carry the weapon. The district court recognized that
Orman’s testimony—regarding Ferragamo asking him in the
mall whether he had been busted or done hard time—arguably
would establish probable cause for an arrest. However, it
rejected Orman’s version of the events. Accordingly, the dis-
trict court ordered the suppression of information obtained
from Orman upon his arrest at the security office.6
ANALYSIS
A. Standard of Review
Motions to suppress are reviewed de novo. United States v.
Meek, 366 F.3d 705, 711 (9th Cir. 2004). The district court’s
factual findings are reviewed for clear error. United States v.
Bynum, 362 F.3d 574, 578 (9th Cir. 2004).
6
The district court’s conclusion that probable cause did not exist for the
arrest was a hollow victory for Orman because no otherwise undiscover-
able evidence leading to his conviction was obtained after the arrest.
6016 UNITED STATES v. ORMAN
B. The Conditions Precedent to a Lawful Protective Search
As a preliminary matter, we address Orman’s contention
advanced at oral argument that Terry v. Ohio, 392 U.S. 1
(1968), requires that Officer Ferragamo have reasonable sus-
picion that a crime was being committed before he could law-
fully retrieve Orman’s gun for officer safety purposes, even
if the encounter was consensual.
[1] Terry held that a brief investigatory detention, while
constituting a seizure, is not a violation of the Fourth Amend-
ment provided that the police officer has reasonable suspicion
“that criminal activity may be afoot.” Id. at 30. Terry also
held that in the course of a lawful investigatory stop, a police
officer also may lawfully pat down the detained individual for
weapons provided that the officer has reasonable suspicion
that the person “may be armed and presently dangerous.” Id.
However, contrary to Orman’s assertion, Terry did not cabin
the use of officer safety patdowns to lawful investigatory
detentions.
In United States v. Flippin, 924 F.2d 163 (9th Cir. 1991),
we rejected an argument similar to the position advanced by
Orman. In Flippin, two police officers were in a woman’s
motel room pursuant to her consent. Id. at 164. An officer had
visited her the previous day to determine the identity of her
male companion who had been arrested for possession of drug
paraphernalia. Id. When she would not produce her identifica-
tion, the police returned the following day to investigate her
identity. Id. Her male companion had been released from jail
and was also present. Id. Upon entering the room, the police
patted down the male for weapons. Id. When the male and
one of the police officers left the room, the female grabbed a
makeup bag, held it close to her, and refused to relinquish it.
Id. The officer forcibly took the bag from her for fear that she
was attempting to arm herself. Id. Based on the bag’s weight,
he suspected that it contained a loaded gun. Id. He opened the
bag and found a gun and cocaine. Id.
UNITED STATES v. ORMAN 6017
We explained in Flippin that a Terry stop-and-frisk “consti-
tutes two independent actions, each requiring separate justifi-
cations. The stop must be based on a suspicion of criminal
activity and the frisk on a reasonable suspicion that the person
is armed.” Id. at 165 n.2 (citing United States v. Thomas, 863
F.3d 622, 628 (9th Cir. 1988)). We also explained that only
the frisk portion of Terry was implicated in Flippin because
the police officer’s presence in the motel room was consen-
sual. Id.
[2] The defendant in Flippin argued that the constitutional
hurdle to entering the motel room—i.e., a search or an arrest
warrant or exigent circumstances—must be overcome before
the police could undertake a protective weapon’s search. We
rejected this argument, holding that following a consensual
entry, a probable cause predicate is not needed to undertake
a weapon’s patdown when reasonable suspicion exists that a
person is armed. Id. at 165-66.
Flippin relied on Maryland v. Buie, 494 U.S. 325 (1990),
which allowed for a protective sweep of a residence for dan-
gerous individuals following execution of an arrest warrant at
the residence. In Buie, the Supreme Court explained that offi-
cer safety both during and after an arrest justifies the necessity
of a protective sweep for dangerous persons to protect the
officer from harm. Id. at 333-34. Therefore, the Court recog-
nized that a protective sweep is not limited to the patdown of
lawfully seized individuals. Id. at 332-34, 334 n.2 (citing
Michigan v. Long, 463 U.S. 1032 (1983) (holding the protec-
tive sweep of a glove box reasonable under Terry when offi-
cer had a reasonable belief that the suspect was potentially
dangerous), and Ybarra v. Illinois, 444 U.S. 85, 92-93 (1980)
(holding patdown of tavern patron unlawful during execution
of warrants to search the premises and arrest the bartender
because officer lacked reasonable suspicion that patron was
armed and dangerous)).
Flippin summarized:
6018 UNITED STATES v. ORMAN
The protective search was upheld in Buie because
the police had a legitimate right to enter the home
and “[o]nce inside, the potential for danger justified
a standard of less than probable cause for conducting
a limited protective sweep.”
924 F.2d at 165 (quoting Buie, 494 U.S. at 334 n.1).
Accordingly, our inquiry is twofold. We must affirm
Orman’s conviction if we determine that Ferragamo (1) was
acting in a lawful situation when he seized the gun from
Orman’s waistband, and (2) had reasonable suspicion that
Orman was armed. Id. at 165 n.2, 167. Here, either consent
or reasonable suspicion would support the lawfulness of Fer-
ragamo’s contact with Orman.
C. The Encounter was Consensual
[3] Orman argues that his contact with Officer Ferragamo
in the mall was an immediate seizure within the rubric of the
Fourth Amendment because he was not “free to leave.” The
Supreme Court, however, has held that not all encounters with
law enforcement implicate the Fourth Amendment.
In Florida v. Bostick, 501 U.S. 429 (1991), the Court exam-
ined whether a police encounter on a bus constituted a seizure
under the Fourth Amendment. The Court wrote that “a seizure
does not occur simply because a police officer approaches an
individual and asks a few questions.” Id. at 434. The Court
explained: “ ‘Obviously, not all personal intercourse between
policemen and citizens involves ‘seizures’ of persons. Only
when the officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen
may we conclude that a ‘seizure’ has occurred.’ ” Id. (quoting
Terry, 392 U.S. at 19 n.16). See also Florida v. Royer, 460
U.S. 491, 497 (1983) (explaining that “law enforcement offi-
cers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public
UNITED STATES v. ORMAN 6019
place, by asking him if he is willing to answer some ques-
tions, [or] by putting questions to him if the person is willing
to listen”).
[4] The Court explained that the crucial test is “whether,
taking into account all of the circumstances surrounding the
encounter, the police conduct would ‘have communicated to
a reasonable person that he was not at liberty to ignore the
police presence and go about his business.’ ” 501 U.S. at 437
(internal citations omitted). The Court described the reason-
able person test as presupposing an innocent person. Id. at 438
(citing Royer, 460 U.S. at 519 n.4 (Blackmun, J., dissenting)).
Applying Bostick’s totality of the circumstances test, we
held that an encounter rose to the level of a seizure when three
law enforcement officers and a bank investigator met a sus-
pect in his apartment building lobby, the lead agent said to the
suspect “let’s go into your apartment,” and the group followed
the suspect up three flights of stairs to his apartment.
Orhorhaghe v. INS, 38 F.3d 488, 491 (9th Cir. 1994). Our
opinion relied on the following considerations: (1) the suspect
was faced with “the threatening presence of several officers,”
(2) the lead agent made it clear to the suspect that he was car-
rying a weapon, (3) the encounter was in a non-public setting,
and (4) the lead agent acted in “an officious and authoritative
manner.” Id. at 494-95.
Relying on Orhorhaghe, Orman contends that he was not
free to leave because Ferragamo was uniformed and told him
to step to the side of the foot traffic in the mall, i.e., away
from the public and to a private space. Orman “felt that any
exit [he] had was blocked” and “knew [that he] didn’t have
any question of walking away at the time from that point.”
Plus, Orman argues that a seizure occurred because Ferra-
gamo did not advise him that he had the right to terminate
their encounter.
The district court, however, disagreed with Orman’s posi-
tion. It found that the encounter was “consensual, polite, and
6020 UNITED STATES v. ORMAN
without coercion,” that the record does not establish an over-
bearing law enforcement presence in the mall, and that a rea-
sonable person would not believe that he was detained or
taken into custody during the brief conversation in the mall.
[5] We agree with the district court. A reasonable innocent
person would not feel that he was being detained by a police
officer who politely asked him if he could have a word with
him and quickly inquired about a handgun. This case is distin-
guishable from Orhorhaghe because Officer Ferragamo was
carrying a radio and never drew his gun. Moreover, Officer
Tomasi, who was about 20 feet behind Ferragamo, was not
threatening. Additionally, the encounter was brief—lasting
three to four minutes—and occurred in a public setting.
Finally, the consensual nature of the encounter is not under-
mined by Ferragamo’s failure to expressly tell Orman that he
was free to leave. See INS v. Delgado, 466 U.S. 210, 216
(1984) (“While most citizens will respond to a police request,
the fact that people do so, and do so without being told they
are free not to respond, hardly eliminates the consensual
nature of the response.”). Accordingly, we agree with the dis-
trict court that the encounter was consensual.7
D. The Gun was Lawfully Seized
The Supreme Court in Terry explained that a search for
weapons is justified by the “immediate interest of the police
officer in taking steps to assure himself that the person with
whom he is dealing is not armed with a weapon that could
unexpectedly and fatally be used against him,” and that
“[c]ertainly it would be unreasonable to require that police
officers take unnecessary risks in the performance of their
duties.” 392 U.S. at 23. Terry also noted that it would be
“clearly unreasonable to deny the officer the power to take
7
Because we affirm the district court determination that the encounter
was consensual, we do not need to consider its alternate holding that the
encounter was supported by reasonable suspicion.
UNITED STATES v. ORMAN 6021
necessary measures to determine whether the person is in fact
carrying a weapon and to neutralize the threat of physical
harm.” Id. at 24.
[6] Pursuant to Terry, a search for weapons must be objec-
tively reasonable. The Court framed the inquiry as “whether
a reasonably prudent man in the circumstances would be war-
ranted in the belief that his safety or that of others was in dan-
ger,” id. at 27, and repeatedly acknowledged that each case
will have to be decided on its own facts. Id. at 19, 30. More-
over, in Adams v. Williams, 407 U.S. 143, 146 (1972), the
Court noted that the purpose of a limited protective search for
weapons is to allow a police officer to pursue his work with-
out fear of violence, and explained that the need for a protec-
tive search applies regardless of whether carrying a concealed
weapon violates any applicable state law.
[7] Here Officer Ferragamo’s reasonable suspicion that
Orman was carrying a gun, which is all that is required for a
protective search under Terry, quickly rose to a certainty
when Orman confirmed that he was carrying a gun. Indeed,
the retrieval of the gun was less intrusive than the patdown in
Terry—Orman pointed to his waistband at which time Ferra-
gamo raised Orman’s shirt and retrieved the gun.
[8] Officer Ferragamo testified at the suppression hearing
that he retrieved the gun for officer safety purposes and that
his only concern was that Orman “might have a gun.”
Although he also testified that Orman “acted perfectly — very
cordial,” under Terry and its progeny a reasonably prudent
man in Ferragamo’s circumstances would be warranted in
retrieving the gun for his safety and the safety of the mall
patrons. Cf. New York v. Quarles, 467 U.S. 649, 656 (1984)
(rejecting argument that public safety exception to the
Miranda warning should not be recognized based on officer’s
subjective motivation revealed at suppression hearing).
[9] The gun was readily accessible to Orman, who was
standing only inches from Ferragamo. See Pennsylvania v.
6022 UNITED STATES v. ORMAN
Mimms, 434 U.S. 106, 112 (1977) (holding that a Terry search
was reasonable when a police officer frisked a man stopped
for driving with an expired license plate when the man
stepped out of the car and the officer noticed a large bulge
under his jacket, explaining that “any man of reasonable cau-
tion would likely have conducted the pat down”) (internal
quotation marks omitted); Ybarra, 444 U.S. at 93 (describing
the Terry doctrine as allowing for a patdown for weapons that
the officer “reasonably believes or suspects are then in the
possession of the person he has accosted”). Furthermore, the
mall was crowded and at a minimum, Ferragamo needed to
see that the gun was removed from the premises without
endangering his safety or the safety of the mall patrons. As in
Terry,
the record evidences the tempered act of a policeman
who in the course of an investigation had to make a
quick decision as to how to protect himself and oth-
ers from possible danger, and took limited steps to
do so.
329 U.S. at 28.
CONCLUSION
[10] We hold that Officer Ferragamo’s initial encounter
with Orman was consensual and that Ferragamo lawfully
seized the gun for safety purposes. The seizure of the gun was
not contrary to the Fourth Amendment, and the district court’s
judgment is AFFIRMED.