Opinion
Crim. No. 01-391-HA.
January 22, 2002
Michael Mosman, United States Attorney, District of Oregon, Fredric N. Weinhouse, Assistant United States Attorney, Portland, Oregon, Attorneys for the Government.
Ellen C Pitcher, Assistant Federal Public Defender, Portland, Oregon, Attorney for Defendant.
OPINION AND ORDER
Pending before this court is defendant's motion to suppress. Testimony and oral arguments regarding this motion were heard in court on January 18, 2002. For the following reasons, the motion to suppress (doc. # 25) is denied.
BACKGROUND
Defendant is charged with one count of being a felon in possession of a firearm that had been transported in interstate commerce. The defendant has moved to suppress the seizure of evidence and statements involved in defendant's arrest.
The following facts are derived from the parties' briefs and the testimony elicited from Beaverton Police Officer Daniel Bortolin during the suppression hearing. There is little or no factual dispute by the parties regarding the following events. In the early morning hours of August 14, 2001, Officer Bortolin observed defendant on a pedestrian pathway between residences near a Plaid Pantry convenience store at 163rd Place and Hart Road in Beaverton, Oregon. Officer Bortolin considered the area "active" for criminal conduct, and regularly examined the pathway and other property near the convenience store during his patrols. The officer directed a spotlight on the side of his patrol car to the pathway, and saw that defendant had two full "carry-on" luggage bags at his feet, and two more bags in front of him. Defendant was facing toward the side of the pathway, and appeared nervous and uncomfortable. The officer exited his vehicle and when defendant reached down toward his bags, Officer Bortolin directed him to "move slowly," and explained that he needed to talk to defendant.
As he approached defendant, the officer asked him what he was doing. Defendant responded that he had been dropped off and was carrying his luggage to his parents' house a few blocks away. The officer asked why defendant had not been dropped off closer to his destination, but did not receive an adequate reply. Officer Bortolin, a police veteran with 29 years' experience, observed defendant's demeanor and his bulky, over-sized clothing, including a shirt that dropped over defendant's waist and appeared to have a bulge on one side. In light of these factors, as well as because the time was 3:38 a. m., and defendant possessed four large luggage bags and was facing toward the side of a residential pathway in an area known for criminal activity, the officer explained to defendant that he intended to pat down defendant to ascertain whether defendant possessed a weapon. Defendant stiffened, took a step back, and reached toward his right lower back. Officer Bortolin advised defendant to stop moving and asked whether there was a problem. Defendant replied that he had a gun there. The officer radioed for assistance and recovered a .44 Ruger revolver from defendant's waist area. The officer handcuffed and later arrested defendant and transported him to the Beaverton Police Department. The officer subsequently read defendant's rights to him, and defendant indicated that a friend had given him the gun to hold onto just before he was observed by Officer Bortolin.
Defendant moves to suppress evidence seized and statements made pursuant to a warrantless stop, search and arrest. For the following reasons, this motion is denied.
STANDARDS
The Fourth Amendment to the United States Constitution provides protections and mandates certain requirements in the event of government seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721 (1969). The Fourth Amendment mandates that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons to be seized.
United States Constitution, Amend. IV. This is applied to the states, and state actors, through the Fourteenth Amendment. Elkins v. United States, 364 U.S. 206, 213 (1960).
"The Fourth Amendment prohibits `unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, ___ U.S. ___, 2002 WL 46773 at 5 (2002); citing Terry v. Ohio, 392 U.S. 1, 9 (1968); United States v. Cortez, 449 U.S. 411, 417 (1981). In Arvizu, the Supreme Court stated that the Fourth Amendment is satisfied when the action of an officer who conducts an investigation is supported by reasonable suspicion to believe that criminal activity may be afoot, and that courts should look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing, so that officers are allowed to "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. " Id., internal quotations and citations omitted.
This ruling amplifies the teaching in Terry v. Ohio, in which the Court held that a limited intrusion for investigatory purposes is proper when predicated upon a reasonable suspicion that the detained person was involved in an illegal activity:
And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard:would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate?Terry, 392 U.S. at 21-22 (footnotes omitted).
Therefore, a police officer who lacks probable cause but who develops reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to investigate the circumstances that provoke suspicion. Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (citations, footnotes, and internal quotations omitted); see also Barlow v. Ground, et al., 943 F.2d 1132 (9th Cir. 1991), cert. denied, 505 U.S. 1206 (1992) ( Fourth Amendment permits police to detain an individual only when the police have an articulable and reasonable suspicion that the individual has committed or is about to commit a crime).
"Reasonable suspicion" is established by a showing from an officer that he or she relied upon specific and articulable facts supporting an inference that (1) some criminal activity was occurring, and (2) the detained individual had been involved in such activity. Terry, 392 U.S. at 18-19; Florida v. Royer, 460 U.S. 491, 500 (1983); Brown v. Texas, 443 U.S. 47, 51 (1979); see also United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000) (reasonable suspicion is created by specific, articulable facts that, when considered together with objective and reasonable inferences, establishes a basis for suspecting that the particular person detained is engaged in criminal activity) (internal quotations omitted). "An officer is entitled to rely on his training and experience in drawing inferences from the facts he observes, but those inferences must also be grounded in objective facts and be capable of rational explanation." Lopez-Soto, 205 F.3d at 1105 (citations and internal quotations omitted. Officers making such factual determinations are not required to be always correct, but must "always be reasonable." Illinois v. Rodriguez, 497 U.S. 177, 185 (1990).
Defendant asserts that Officer Bortolin's initial detention of him was custodial and that he was deprived of his rights provided under Miranda v. Arizona, 384 U.S. 436 (1966). The procedural protections afforded by Miranda are designed to secure an accused's privilege against self-incrimination and are triggered only in the event of a custodial interrogation. Under the Fourth Amendment to the United States Constitution, a person is seized "only if in view of all of the circumstances surrounding the incident a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980) (plurality opinion). The Court in Mendenhall described some circumstances that might indicate a seizure:a threatening presence of officers, a display of weapons, physical touching or a tone of voice suggesting that compliance with an officer's request is compelled. An officer approaching a person and asking questions does not necessarily constitute a seizure. Id. at 554-555. Other pertinent factors to be considered include(1) the language used to summon the individual, (2) the extent to which the defendant is confronted with evidence of guilt, (3) the physical surroundings of the interrogation, (4) the duration of the detention, and (5) the degree of pressure applied to detain the individual. United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985); United States v. Crisco, 725 F.2d 1228, 1231 (9th Cir.), cert. denied, 466 U.S. 977 (1984); United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981); United States v. Curtis, 568 F.2d 643, 646 (9th Cir. 1978).
ANALYSIS
Viewing the totality of the circumstances objectively, Officer Bortolin's investigation of defendant was supported by reasonable suspicions that criminal activity may be afoot. Officer Bortolin, a veteran of 29 years' experience, considered the time of the encounter, its location, the defendant's demeanor, the presence of four large luggage bags, and defendant's bulky clothing in developing reasonable suspicions that defendant was, or was about to be, engaged in criminal activity. The officer engaged defendant in conversation, and defendant stepped back and acted suspiciously when the officer explained his desire to conduct a safety pat down.
Officers are permitted to investigate within the parameters of a Terry stop without fear of flight or violence from the detainee. See Adams v. Williams, 407 U.S. 143 (1972). The Ninth Circuit has recognized that "[s]ometimes, an investigatory stop may involve more than the ordinary risks inherent in any contact between police officers and suspects. Even though the officers may not have sufficient cause to make an arrest, they may have to take particular measures to protect themselves during the course of the stop. As a result, we allow intrusive and aggressive police conduct without deeming it an arrest in those circumstances when it is a reasonable response to legitimate safety concerns on the part of the investigating officers." Washington v. Lambert, 98 F.3d 1181, 1186 (9th Cir. 1996); see also United States v. Hensley, 469 U.S. 221, 235 (1985) (during a Terry stop police officer may take reasonable measures to neutralize the risk of physical harm and to determine whether the person in question is armed); United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987) (use of force does not convert an investigatory stop into an arrest when force is justified given fears of personal safety); United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir.), cert. denied, 476 U.S. 1185 (1986) (officers may instruct detainees to put their hands on a car, and also may draw weapons during an investigatory stop). As the Supreme Court has recognized, risks of harm to both the police and citizens are minimized when officers are permitted to routinely exercise unquestioned command of the situation during investigatory stops. Michigan v. Summers, 452 U.S. 692, 702-06 (1981).
CONCLUSION
Under the facts and in consideration of the totality of the circumstances presented, the police officer's detention and initial investigation of defendant arose from reasonable suspicions and was lawful. There are no grounds for suppressing defendant's acknowledgment that he possessed a weapon, and the subsequent pat-down of defendant and the confiscation of the firearm found on defendant's person were also lawful. Accordingly, defendant's motion to suppress (doc. # 25) is DENIED. Trial remains scheduled to begin on January 29, 2002.
IT IS SO ORDERED.