Stephen Burrell v. Mike McIlroy Glen C. Rector, Jeff Thorpe

423 F.3d 1121, 2005 U.S. App. LEXIS 20060, 2005 WL 2266625

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2005
• Docket: 02-15114
• Status: Published

Opinions

CALLAHAN, Circuit Judge:

Stephen Burrell (Burrell) appeals the district court’s grant of summary judgment on behalf of various detectives of the Las Vegas Metropolitan Police Department in this 42 U.S.C. § 1983 action. This court reviews the grant of summary judgment de novo, and may affirm on any basis supported by the record. Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir.2003); Hell’s Angels Motorcycle Corporation v. McKinley, 360 F.3d 930, 931 n. 1 (9th Cir.2004). We have jurisdiction under 28 U.S.C. § 1331, and we affirm.

I

Burrell, a felon with a lengthy history of arrests, was suspected by the Las Vegas Metropolitan Police Department of possessing illegal weapons and drugs. On February 4, 1999, Detective Mcllroy applied for a search warrant to search Bur-rell’s apartment on 1750 Karen Avenue. In the affidavit in support of the search warrant, Detective Mcllroy stated that he had obtained current and past information from reliable informants that led him to believe that Burrell was trafficking in drugs and possessed firearms.

Detective Mcllroy indicated that, in December of 1998, he was contacted by a reliable informant, who told him that “Bur-rell often travels to California and purchases cocaine which he in returns [sic] brings back to Las Vegas for resale.” On December 19, 1998, police arrested Burrell after he shot his then-girlfriend in the leg during a domestic dispute. Burrell admitted to officers to possessing a gun and shooting his girlfriend. Detectives recovered two handguns and more than four grams of cocaine during this incident. Burrell was ultimately charged with trafficking cocaine, battery with a deadly weapon, and two counts of being an ex-felon in possession of a firearm.

On February 3, 1999, the day before Detective Mcllroy applied for the search warrant, he was again contacted by two informants. The informants told Detective Mcllroy that “Burrell was currently in California picking up an unknown [quantity] of cocaine and was to bring it back with him to Las Vegas.” One of these informants also told Detective Mcllroy that Burrell was coming back to Las Vegas “at any time with the cocaine.”

On February 4, 1999, a third informant told Detective Mcllroy that Burrell was back in Las Vegas, that he had been inside Burrell’s apartment, and had observed Burrell cooking approximately one ounce of rock cocaine over the stove. The informant told Detective Mcllroy that Burrell possessed a handgun, which he kept in his bedroom. The informant also identified Burrell’s car by its license plates and stated that it was parked outside his apartment at 1750 Karen Avenue. Detective Mcllroy sent Detective Rector to provide surveillance of Burrell’s 1750 Karen Avenue apartment. Detective Rector confirmed that a car matching those plates was indeed parked outside of that apartment and communicated this to Detective Mcllroy, who then sought to obtain the search warrant.

Before the warrant had issued, Detective Rector continued to provide surveillance of Burrell’s 1750 Karen Avenue apartment. At some point, Burrell left his apartment at 1750 Karen Avenue and drove to his other apartment at 1500 Karen Avenue. Detective Rector followed Burrell to the second apartment, where he claims that he then stopped and detained Burrell after Burrell attempted to exit the vehicle and enter the apartment.

Burrell, however, alleges that Detective Rector followed him to the second apartment, stopped Burrell in his car, and forcibly removed him from the car at gunpoint. Burrell asserts that Detective Rector handcuffed him, read him his Miranda rights, and later informed him he was under arrest for suspicion of being under the influence of a controlled substance.

It is undisputed that thereafter the police transported Burrell back to his 1750 Karen Avenue apartment, where Burrell refused to allow officers to search that apartment, but he agreed to allow them to wait inside the entrance until they obtained the warrant. After the officers were notified by phone¹ that a search warrant had issued, they searched the apartment. During the search, Detective Rector and another police officer returned to the 1500 Karen Avenue apartment. Courtney Johnson, who shared the 1500 Karen Avenue apartment with Burrell, provided the officers with oral and written consent for the officers to search the 1500 Karen Avenue apartment.

The search at the 1750 Karen Avenue residence yielded a .38 caliber revolver and a shotgun, as well as 2.73 grams of cocaine. The search at the 1500 Karen Avenue apartment led to the recovery of two scales commonly used to weigh narcotics for sale, a Mosberg 12 gauge shotgun, a yellow bag filled with shot gun shells, and two boxes of .38 caliber bullets, which were similar to the bullets used in the gun recovered at the 1750 Karen Avenue apartment. Bur-rell was charged with two counts of being a felon in possession of a firearm and for possession of cocaine with intent to distribute. Burrell was indicted by a federal grand jury of being a convicted felon in possession of a firearm on May 13, 1999.

On December 8, 1999, Burrell sued the detectives under 42 U.S.C. § 1983 for violating his Fourth Amendment rights. The district court granted the officers’ motion for summary judgment, finding that the officers had probable cause and did not use excessive force in arresting Burrell, and that the searches of his two apartments were reasonable under the Fourth Amendment. Burrell timely appealed to this court.

II

Burrell first argues that the district court erred in granting Detective Rector’s motion for summary judgment. He contends that Detective Rector used excessive force and falsely arrested him outside the 1500 Karen Avenue apartment. In its briefs, the government disputed whether the encounter was an arrest, but conceded at oral argument that, if the encounter was an arrest, Detective Rector lacked probable cause to arrest Burrell.

We hold that, assuming without deciding that the encounter was an arrest and the police lacked probable cause to arrest Burrell at that time, a reasonable officer in Detective Rector’s position would have believed that he had probable cause to arrest Burrell and to use force in doing so. See Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — -about the amount of force that is necessary in a particular situation.”); see also Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.”).

The particularized facts known by the officers at the time of the encounter amply show that a reasonable officer in Detective Rector’s position could have believed that he was authorized to use force to take Burrell into custody. See Reynolds v. San Diego County, 84 F.3d 1162, 1170 (9th Cir.1996) (“The inquiry is not whether another reasonable or more reasonable interpretation of events can be constructed ... after the fact.... Rather, the issue is whether a reasonable officer could have believed that his conduct was justified.”) (internal quotations and citations omitted), overruled on other grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th Cir.1997) (en banc).²

At the time of the encounter, the officers were aware that Burrell was a felon who had recently confessed to shooting his former girlfriend, and that it was highly likely that he continued to deal drugs and possess firearms.³ Several informants had recently stated that Burrell had just returned from purchasing cocaine in California. Indeed, one of these informants had reported that he had seen Bur-rell cooking crack on the stove that very day (when the informant contacted the detective), and that Burrell still kept a gun in the bedroom of his apartment.

There was no reason to think that the gun in the bedroom was the only firearm that Burrell possessed, or that he did not carry it, or other weapons, when he was outside the apartment. When a drug dealer has shot someone and continues to commit the crime of possessing a firearm, the police may be permitted to act on the assumption that he may be armed and dangerous. See United States v. Post, 607 F.2d 847, 851 (9th Cir.1979) (“It is not unreasonable to suspect that a dealer in narcotics might be armed.”); see also Cunningham v. Gates, 229 F.3d 1271, 1290 (9th Cir.2000) (“A police officer’s right to make an arrest necessarily includes the right to use some degree of force.”).⁴

Thus, under the totality of the circumstances, a reasonable officer in Detective Rector’s position could have believed there was probable cause to arrest Burrell and to use force in doing so. We, therefore, affirm the district court’s grant of summary judgment on this issue. See McCray v. State of Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); see also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

Burrell next argues that the district court erred in granting summary judgment to the other detectives as to the search of the 1750 Karen Avenue apartment. He contends that Fed.R.Crim.P. 41(d) requires federal officers, absent exigent circumstances, to deliver a warrant at the outset of a search. See United States v. Gantt, 194 F.3d 987, 1004 (9th Cir.1999); Ramirez v. Butte-Silver Bow, 298 F.3d 1022, 1027(9th Cir.2002), affirmed Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). Burrell contends that the officers violated his Fourth Amendment rights when they commenced the search after receiving telephonic confirmation, but prior to the physical delivery, of the warrant.

The parties dispute whether detectives of the Las Vegas Metropolitan Police Department are, in fact, federal officers who are subject to this rule. Even assuming that the detectives were subject to this requirement, the clearly established law at the time of the search would not have put a reasonable officer on notice of a potential constitutional violation. See Saucier, 533 U.S. at 202, 121 S.Ct. 2151.⁵

Finally, Burrell contends that the officers illegally searched his 1500 Karen Avenue property because the officers coerced Johnson into giving her consent to the search. Johnson stated in a May 9, 2001, affidavit that she consented only after officers informed her that a search warrant for the 1500 Karen Avenue apartment was on the way, and that she could get into trouble if they later found contraband on the premises.

Burrell argues that Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), is controlling. In Bumper, law enforcement officials gained entrance to a residence by falsely asserting they had a warrant to search, and the court found no consent. Bumper, however, states that consent is invalid where it is only given as a submission to legal authority. Here, by contrast, there is no indication that Rector made any indication that he had immediate authority to search the apartment without first obtaining Johnson’s consent.

Although the record suggests that Johnson may have misunderstood Detective Rector’s statement that the detectives were awaiting a search warrant for the 1750 Karen Avenue apartment as referring to the 1500 Karen Avenue apartment, there is nothing in the record that indicates that Detective Rector was aware of Johnson’s misinterpretation.⁶ Thus, a reasonable officer in his position would not have been on notice that Johnson’s consent was in any way involuntary.

Here, the police made no threat of violence or false charges against Johnson, and she twice consented' — both orally and in writing — -to the search of the apartment. The fact that Johnson may have consented to avoid casting suspicion on herself if contraband was found on the premises does not vitiate her consent. See United States v. Agosto, 502 F.2d 612, 614 (9th Cir.1974).

Thus, on the facts of this case, the district court did not err in finding that the detectives were entitled to qualified immunity on this issue.

Ill

Accordingly, the district court’s grant of summary judgment on behalf of the detectives is AFFIRMED.

1 . Burrell contends that he had to wait two or three hours from the time that he was allegedly arrested to the time that the search was completed.

2 . Because the detectives were working in close concert, a court may consider the collective knowledge of these detectives in considering their beliefs concerning probable cause or reasonable suspicion. See United States v. Bernard, 623 F.2d 551, 561 (9th Cir.1979) (reasoning that "the officers involved were working in close concert with each other and the knowledge of one of them was the knowledge of all”) (internal citation omitted); see also United States v. Del Vizo, 918 F.2d 821, 826 (9th Cir.1990).

3 . Although a prior criminal history cannot alone establish reasonable suspicion or probable cause to support a detention or an arrest, it is permissible to consider such a fact as part of the total calculus of information in these determinations. See Brinegar v. United States, 338 U.S. 160, 177, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

4 . In addition, it is undisputed that the officers were preparing to execute a search at Bur-rell's 1750 Karen Avenue apartment, which was only a couple blocks away. Under the controlling law at the time of the incident, an officer could reasonably have believed that he was authorized to detain such a dangerous individual who remained in close proximity to his residence, where a search warrant was about to be executed, in order to protect his safety and the safety of his fellow officers. See Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (upholding the constitutionality of the detention of a person who was descending the front steps of a home as officers approached to search the residence); see also Muehler v. Mena, - U.S. -, -, 125 S.Ct. 1465, 1469, 161 L.Ed.2d 299 (2005) (reaffirming the validity of Summers and noting that "minimizing the risk of harm to officers” is a substantial justification for detaining an occupant during a search.). As the officers had received information that there were weapons in the apartment and knew that there might be a slight delay in the search, with the proliferation of cellular phones, Burrell's removal from the curtilage of the apartment did not ameliorate Detective Rector’s concern for his fellow officers.

5 . The incidents that form the basis for this action took place on February 4, 1999. This court's opinion in Gantt, holding that the federal rules require a search warrant to be delivered before a search is commenced, was not filed until June 7, 1999. Prior to Gantt, the prevailing law of the circuit was that the failure to serve a warrant at the outset of a search did not always violate the Fourth Amendment. See United States v. Woodring, 444 F.2d 749 (9th Cir.1971); Nordelli v. United States, 24 F.2d 665 (9th Cir.1928).

6 . In her April 6, 1999 grand jury testimony, Johnson testified:

[Djetectives knocked on the door and asked me ... if they could come in and talk to me and possibly search the house for any type of weapons or narcotics or a safe. And then I was, like, sure.... They said they had just left [the 1750 Karen Avenue apartment] but were waiting for a search warrant and, you know, if I didn't have a problem with them coming in and searching and I told them I didn’t have a problem with them coming in because there shouldn’t have been something in the house.