United States v. Mitchell , 61 F. App'x 616 ( 2003 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAR 31 2003
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 02-4120
    v.                                       (D.C. No. 2:01-CR-179-B)
    (D. Utah)
    CORNELL DEON MITCHELL,
    Defendant - Appellant.
    ORDER AND JUDGMENT           *
    Before MURPHY , McWILLIAMS , and HARTZ , Circuit Judges.
    Defendant Cornell Deon Mitchell appeals the district court’s denial of his
    motion to suppress evidence, contending his Fourth Amendment rights were
    violated when a police officer frisked him and patted down his jacket without a
    reasonable basis to believe that he was armed and dangerous. We have
    jurisdiction under 
    28 U.S.C. § 1291
     and reverse.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    I. Factual Background
    The facts in this case are not in dispute. On March 8, 2001, Officer Brede
    of the Salt Lake City Police Department was dispatched to investigate an alleged
    shoplifting at the Evolution Ski Company. Upon arriving at Evolution, Brede
    parked his car and approached two men who were waiting outside the store. One
    of the men, a store manager, told Brede that the other man (later identified as
    defendant) was attempting to return stolen ski pants. Officer Brede asked both
    men to return to the store, where he would continue the investigation.
    While outside, defendant was holding a pair of ski pants in one hand and a
    jacket in the other. After returning to the store, defendant stood near a sales
    counter, placed his jacket at his feet, and set the allegedly stolen pants on the
    counter.
    Before continuing his investigation, Officer Brede conducted a frisk of
    defendant’s person, but found no weapons. Officer Brede then began to pick up
    defendant’s jacket from the floor, at which time defendant informed the officer
    that there was a pistol in the jacket’s pocket. Officer Brede proceeded to go
    through the jacket and found the pistol and five rounds of ammunition.
    Defendant was placed under arrest for illegal possession of a firearm. He was
    not, however, arrested for shoplifting.
    -2-
    Officer Brede testified that he frisked defendant because he was concerned
    for his safety. This fear stemmed from two factors: (1) the encounter with
    defendant was taking place in a high-crime area and (2) defendant was potentially
    involved in a shoplifting. Officer Brede testified that he knew the store was in a
    high-crime area based on his experience working in the area and his training at
    the police academy. Officer Brede had previously encountered people carrying
    weapons in that part of Salt Lake City.
    Defendant’s conduct prior to the frisk, however, did not suggest any danger
    to Officer Brede. Officer Brede described the events as follows:
    Q.     [Y]ou proceeded inside to the ski shop?
    A.     Correct.
    .
    Q.     And you immediately conducted a Terry frisk on [defendant] at
    that time?
    A.     I did.
    Q.     Did [defendant] do anything at that time that was threatening
    toward you?
    A.     Make any actions toward me, no, he did not.
    Q.     Did he attempt to flee when you arrived?
    A.     No, he did not.
    Q.     Was there anything noticeable on his body that would indicate to you
    that he was carrying a weapon, any bulge in his pockets or anything
    like that that made you think he had a weapon on him?
    -3-
    A.     No, there was not.
    Q.     Did he reach inside his shirt or his pants when you proceeded
    into the store?
    A.     No. He just had the pants and the jacket.
    Q.     But he was cooperative, correct?
    A.     He was cooperative.
    Q.     He sat the jacket on the floor?
    A.     He did.
    Q.     So in order to get something out of the jacket he would have to
    have bent down to get it out, correct?
    A.     That is correct.
    ROA, Vol. II, at 14-15. In later testimony Officer Brede added:
    Q.     When you first encountered [defendant] did you have any
    reason to believe that he might actually be in possession of
    something that could harm you?
    A.     Not him as an individual other than the fact that he is now a
    suspect in a crime and he is in this area where my dealings
    with people have sometimes included the carrying of weapons.
    ROA, Vol. III, at 10. Officer Brede also testified that defendant was polite,
    cooperative, and non-threatening.
    After the arrest, federal authorities charged defendant with one count of
    possession of a firearm by a restricted person, in violation of 
    18 U.S.C. § 922
    (g).
    He filed a motion to suppress the pistol, claiming Officer Brede’s frisk violated
    -4-
    his Fourth Amendment rights. The suppression motion was denied by the district
    court. Defendant then entered a conditional guilty plea, reserving his right to
    appeal the denial of the motion to suppress. The district court imposed a sentence
    of 21 months’ imprisonment, followed by 36 months of supervised release.
    II. Discussion
    “In reviewing the denial of a motion to suppress, this court considers the
    totality of the circumstances and views the evidence in the light most favorable to
    the government.” United States v. Gay, 
    240 F.3d 1222
    , 1225 (10th Cir. 2001).
    “We accept the district court’s findings of facts unless clearly erroneous.” 
    Id.
    But “[t]he ultimate determination of reasonableness under the Fourth Amendment
    is a question of law we review de novo . . . .” 
    Id. at 1226
     (internal quotation
    marks omitted).
    Of course, when an officer has probable cause to arrest a suspect, the
    officer may search the person of the arrestee. See United States v. Robinson, 
    414 U.S. 218
    , 224-25 (1973). But when the officer possesses only reasonable
    suspicion to detain a person, the officer may constitutionally conduct a
    warrantless pat-down search of the person only “where he has reason to believe
    that he is dealing with an armed and dangerous individual.” Terry v. Ohio, 
    392 U.S. 1
    , 27 (1968). Defendant asserts that the government can point to no
    -5-
    evidence of such a basis to justify Officer Brede’s frisk of his person and his coat.
    We agree.
    The government concedes that the district court made no finding that
    Officer Brede had reason to believe that defendant was armed and dangerous. It
    requests that we remand the case to the district court to enable the court to make
    findings on the matter. We deny this request. The district court held two
    evidentiary hearings and entertained briefing on the issue. As counsel for the
    government conceded at oral argument, the government has already presented all
    its evidence regarding defendant’s dangerousness to the district court. Because
    that evidence cannot sustain the required dangerousness finding, remand would
    serve no purpose.
    The government relied on the following facts: (1) defendant was present in
    a high crime area; (2) defendant was a shoplifting suspect; and (3) defendant had a
    jacket in his possession, which he dropped into a clump on the floor, still within
    arm’s reach. But even viewing these facts in the light most favorable to the
    government, they could not give Officer Brede “reason to believe that he [was]
    dealing with an armed and dangerous individual.” 
    Id.
     Defendant took no action
    that caused the officer to fear for his safety. He was cooperative, polite, and non-
    threatening. Nor did any of defendant’s clothing contain bulges suggestive of
    weapons. To uphold the constitutionality of a frisk on these facts would be to
    -6-
    permit a frisk whenever a person present in a high-crime area is accused of
    involvement in a non-violent petty crime. The prospect is as mind-boggling as it
    is unconstitutional.
    The government alternatively contends that we should uphold the frisk as
    incident to an arrest. It argues that since Officer Brede had probable cause to
    arrest defendant for shoplifting, he was able to search him incident to that arrest.
    See Robinson, 
    414 U.S. at 224-25
    . The government asserts that it is irrelevant that
    defendant was never actually arrested for shoplifting, so long as there was
    probable cause to arrest. The shortest answer to that contention is that there was
    no probable cause.
    “An officer has probable cause to arrest if, under the totality of the
    circumstances, he learned of facts and circumstances through reasonably
    trustworthy information that would lead a reasonable person to believe that an
    offense has been or is being committed by the person arrested.” United States v.
    Morris, 
    247 F.3d 1080
    , 1088 (10th Cir. 2001) (internal quotation marks omitted).
    “Probable cause does not require facts sufficient for a finding of guilt; however, it
    does require more than mere suspicion.” 
    Id.
     (internal quotation marks omitted).
    The only facts supporting a determination of probable cause here are (1) the
    store manager’s accusation that defendant had tried to return ski pants that had
    been stolen and (2) defendant’s possession of ski pants. To be sure, we presume
    -7-
    that a citizen informant is reliable. See Easton v. Boulder, 
    776 F.2d 1441
    , 1449-50
    (10th Cir. 1985). But the source of the accusation must still set forth facts
    supporting the accusation. See Illinois v. Gates, 
    462 U.S. 213
    , 239-40 (1983)
    (conclusory allegation without any factual support cannot establish probable
    cause). Here, the store manager had not provided any factual support for his
    allegation that the pants had been stolen, perhaps because the frisk was conducted
    before the officer interviewed the manager.
    Because defendant’s motion to suppress the pistol should have been granted,
    we REVERSE the order denying the motion and REMAND to the district court
    with instructions to VACATE defendant’s conviction and sentence.
    ENTERED FOR THE COURT
    Harris L Hartz
    Circuit Judge
    -8-
    United States v. Mitchell   , No. 02-4120.
    McWilliams, J. , Senior Circuit Judge, Dissenting.
    In reviewing the denial by a district court of a defendant’s motion to
    suppress, we consider the totality of the facts and circumstances in the light most
    favorable to the government.     United States v. Gay , 
    240 F.2d 1222
    , 1225 (10th Cir.
    2001). The facts and circumstances in the instant case are not in dispute. Such
    being the case, our task on appeal is to determine,   de novo , whether based on the
    undisputed facts, Officer Brede’s conduct in the instant case was “reasonable” as
    required by the Fourth Amendment.        I am of the firm view that Officer Brede’s
    conduct was reasonable and did not violate the Fourth Amendment.        (It appears to
    me that the majority has reviewed the facts and circumstances in the instant case in
    the light most favorable to Mitchell.)
    At the hearing on the motion to suppress, Officer Brede, who was the only
    witness, testified that he “frisked” Mitchell because he “wanted to ensure that he
    did not have any weapons on him,” and that his concern was based in part on his
    personal experience with the area. Officer Brede testified that his encounter with
    Mitchell was in an area of town frequented by prostitutes, drug dealers and drug
    users where persons often carried weapons. In this regard, the district court held
    that Officer Brede was “reasonably concerned for his safety and therefore, began a
    pat-down search of defendant.” I would also emphasize that Officer Brede’s
    encounter with Mitchell was definitely “confrontational,” in the sense that
    Mitchell had the stolen property in his hands! The fact that a handgun and five
    rounds of ammunition were located in Mitchell’s jacket does not validate the
    search, but does, perhaps, illustrate Officer Brede’s concern for his personal
    safety. (The handgun was the basis for the charge that Mitchell, who had prior
    felony convictions, unlawfully possessed a firearm in violation of 
    18 U.S.C. § 922
    (g).) I do not agree with the suggestion that Officer Brede’s conduct “is as
    mind-boggling as it is unconstitutional.” In my view, Officer Brede’s conduct was
    neither “mind-boggling” nor “unconstitutional.”
    I believe the district court’s denial of Mitchell’s motion to suppress is
    consistent with Terry v. Ohio, 
    392 U.S. 1
     (l968). In Terry , where the Supreme
    Court found the “frisk” to be reasonable   1
    , the Court spoke as follows:
    Certainly it would be unreasonable to require that police
    officers take unnecessary risks in the performance of
    their duties. American criminals have a long tradition of
    armed violence, and every year in this country many law
    enforcement officers are killed in the line of duty, and
    thousands more are wounded. Virtually all of these
    deaths and a substantial portion of the injuries are
    inflicted with guns and knives.
    ....
    Our evaluation of the proper balance that has to be
    struck in this type of case leads us to conclude that there
    must be a narrowly drawn authority to permit a
    reasonable search for weapons for the protection of the
    1
    In Terry, the “frisk” occurred in an area of Cleveland known for pick-
    pockets and shoplifters, and the officer had observed what he thought was
    “suspicious behavior” by the person searched.
    -2-
    police officer, where he has reason to believe that he is
    dealing with an armed and dangerous individual,
    regardless of whether he has probable cause to arrest the
    individual for a crime. The officer need not be
    absolutely certain that the individual is armed; the issue
    is whether a reasonably prudent man in the circumstances
    would be warranted in the belief that his safety or that of
    others is in danger. And in determining whether the
    officer acted reasonably in such circumstances, due
    weight must be given, not to his inchoate and
    unparticularized suspicion or “hunch,” but to the specific
    reasonable inferences which he is entitled to draw from
    the facts in light of his experience.
    
    Id. at 23, 27
    . (Citations omitted).
    Accordingly, I would affirm.
    -3-