Opinion
8:01CR286
August 25, 2002
MEMORANDUM AND ORDER
The defendant stands indicted on one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846, 841(a)(1), and 841(b)(1); one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841 (a)(1) and (b)(1); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). Before me now is the defendant's statement of objections, Filing No. 31, to Magistrate Judge Jaudzemis's report and recommendation, Filing No. 28, in which Magistrate Judge Jaudzemis recommends that this court deny the defendant's motion to suppress, Filing No. 12. The defendant submitted a supporting brief, but the government did not submit a responsive brief.
I have now carefully reviewed the defendant's brief, the record (including the transcripts from the suppression hearing, Filing Nos. 23 and 26), and the applicable law.
I find the magistrate judge's report and recommendation is neither contrary to law nor clearly erroneous. See 28 U.S.C. § 636(b)(1)(A); NELR 72.3(d). Accordingly, I adopt the report and recommendation in its entirety and deny the defendant's motion to suppress. Since the report and recommendation accurately and fully relates the factual circumstances leading to the defendant's arrest and the search of his home, I specifically adopt the magistrate judge's factual findings.
Briefly, Omaha Police Department officers were called to the defendant's neighborhood on the evening of October 16, 2001, to investigate a suspicious car possibly involved in drug activity. The occupants of that car told the two responding officers that they were waiting for "Scott," who was at a house they pointed out. As they spoke, one of the officers noticed a police scanner in the back seat of the car.
The other officer left the car and approached two men standing in the driveway of the house pointed out by the car's occupants, asking if either was "Scott." The defendant said that he was and began walking toward the officer.
The officer testified that he asked the defendant, "[D]o you got anything on you I got to worry about, pocketknives, anything like that?" Filing No. 23, Transcript, 16:4-6. The defendant said no, but then reached in his back pocket, took out a knife, and threw it behind him into the grass. The officer asked the defendant if he had anything else the officer needed to worry about, and asked the defendant if he could check. The defendant said yes, then lifted his hands over his head and again started walking toward the officer. When the defendant was an arm's-length away, the officer reached out to start his pat-down search, lifted the defendant's untucked t-shirt, and saw a gun in the defendant's waistband. The officer removed the gun and placed the defendant on the ground. The officer's search of the defendant revealed a second loaded gun in the defendant's back pocket and drugs and paraphernalia in the defendant's fanny pack.
A records check showed that the defendant was a convicted felon. The officers' subsequent search of the defendant's home, conducted with the consent of the defendant's wife, turned up more guns and methamphetamine.
The defendant first contends that the magistrate judge erred by ruling that the defendant's carrying of the knife in violation of Nebraska's concealed weapon statute gave the officer probable cause to search the defendant. The defendant also contends that the magistrate judge erred in finding that the officer's initial search of the defendant, which revealed the gun in the defendant's waistband, was permissible under the Fourth Amendment. The defendant maintains that the officer did not have reasonable suspicion or probable cause to justify any search. Even assuming the officer did have reasonable suspicion, the defendant argues, the officer exceeded the permissible bounds of a pat-down search by lifting the defendant's t-shirt.
Police officers may approach individuals for questioning or an identification check without triggering Fourth Amendment concerns. Terry v. Ohio, 392 U.S. 1, 19 (1968); Florida v. Bostwick, 501 U.S. 429, 434-35 (1991). The officer here clearly was entitled to approach the defendant to ask if he was the "Scott" whom the occupants of the suspicious car had named. Such a consensual initial encounter would become a seizure only when, in view of all the circumstances, a reasonable person would believe that he or she is no longer free to leave. United States v. Mendenhall, 446 U.S. 544, 552 (1980).
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.Id. at 554. None of the evidence adduced at the suppression hearing indicated that these circumstances were present in the initial moments of the encounter between the officer and the defendant.
The evidence is uncontroverted, however, that when the officer asked the defendant if he was armed, the defendant produced and then discarded an object the officer identified, even in the street light, as a dark metal knife five to six inches long. The defendant contends that this evidence does not support a finding that the defendant had "concealed" the knife. The officer testified, however, that the defendant told him that he was not armed, yet then took the knife from his back pocket and tossed it behind him.
Under Nebraska law, having a five to six inch metal knife in one's back pocket violates the prohibition on carrying a concealed weapon. See Neb. Rev. Stat. 28-1202(1) ("[A]ny person who carries a weapon or weapons concealed on or about his or her person such as a . . . bowie knife, dirk or knife with a dirk blade attachment . . . or any other deadly weapon commits the offense of carrying a concealed weapon."). Since the officer had probable cause to arrest the defendant for carrying a concealed weapon, the officer was entitled to conduct a search incident to arrest. "Warrantless searches incident to a custodial arrest are `justified by the reasonableness of the searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.'" Curd v. City Court of Judsonia, 141 F.3d 839, 842 (8th Cir. 1998) (quoting United States v. Edwards, 415 U.S. 800, 803-20 (1974)).
I also agree with the magistrate judge that while the defendant's violation of the concealed weapons statute by itself created probable cause for the officer to search the defendant incident to arrest, the totality of the circumstances would also have created reasonable suspicion for a pat search. See Filing No. 28, Report and Recommendation at 17. The officers were called to investigate a suspicious car whose occupants were possibly involved in drug activity. While talking to the occupants, the officers discovered a police scanner in the back seat, an item that the officers testified in their experience is generally found only in vehicles belonging to the police or to criminals. The occupants told the officers they were waiting for "Scott," who was at a house the occupants pointed out. Within moments after identifying himself as "Scott" and in response to the officer's question about whether he was armed, the defendant removed from his pocket and disposed of a knife. The totality of these circumstances was sufficient to create reasonable suspicions on the officers' part that "Scott" and possibly the car's occupants were engaged in some sort of criminal activity. Based on those reasonable suspicions, the officer would have been permitted to conduct a brief pat-down search of the defendant for officer safety.
The defendant suggests that the officer exceeded the bounds of a pat-down search done only as part of an investigatory Terry-type stop when he lifted the defendant's t-shirt to look for other concealed weapons. An officer conducting an investigatory Terry-type search generally is permitted only to pat a suspect's outer clothing.
[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . . he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.Terry v. Ohio, 392 U.S. at 30. See also Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) ("If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of privacy beyond that already authorized by the officer's search for weapons.").
However, the reasonable suspicion that justified the officer here to conduct an investigative pat-down search over the defendant's outer clothing ripened into probable cause when the defendant produced the knife which he had concealed in his pocket. Upon observing the defendant throw the five to six inch knife from his pocket to the ground, the officer had probable cause under Nebraska law to arrest the defendant. See United States v. Jackson, 741 F.2d 223, 224 (8th Cir. 1984) (upon observing revolver concealed in the defendant's waistband, officer had probable cause to arrest defendant for carrying a concealed weapon and to seize revolver). "An arrest for carrying a concealed weapon has been recognized as a sufficient basis for making a full custodial arrest by this court." United States v. Boucher, 909 F.2d 1170, 1173 (8th Cir. 1990). Further, the officer reasonably believed, given the totality of the circumstances and his experience, that the defendant could be armed with other concealed weapons. The officer was therefore not required to go through the formality of a strict pat-down search, but was instead entitled to conduct a more thorough search of the defendant's person. In any event, both concealed guns would have been immediately apparent to the officer had he conducted only an investigative pat-down on the outside of the defendant's clothing. See United States v. Williams, 139 F.3d 628, 630 (8th Cir. 1998) (officer may remove immediately identifiable contraband from suspect's pocket during a legitimate Terry search).
The defendant listed as an objection but did not brief the magistrate judge's finding that the defendant's wife consented to the search of their home. Without knowing what constitutional infirmities the defendant perceives in the wife's consent, and seeing none obvious in a careful reading of the transcript, I conclude that the magistrate judge's finding was neither clearly erroneous nor contrary to law. Accordingly,
IT IS ORDERED:
1. The defendant's statement of objections, Filing No. 31, to Magistrate Judge Jaudzemis's report and recommendation, Filing No. 28, is overruled;
2. The Magistrate Judge's report and recommendation, Filing No. 28, is adopted in its entirety; and
3. The defendant's motion to suppress, Filing No. 12, is denied.