United States v. Bishop

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 1, 2003
• Docket: 02-5176
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Bishop No. 02-5176 ELECTRONIC CITATION: 2003 FED App. 0264P (6th Cir.) File Name: 03a0264p.06 Nikki C. Pierce, FEDERAL DEFENDER SERVICES, Greeneville, Tennessee, for Appellee. ON BRIEF: Guy W. Blackwell, ASSISTANT UNITED STATES ATTORNEY, UNITED STATES COURT OF APPEALS Greenville, Tennessee, for Appellant. Nikki C. Pierce, FEDERAL DEFENDER SERVICES, Greeneville, FOR THE SIXTH CIRCUIT Tennessee, for Appellee. _________________ _________________ UNITED STATES OF AMERICA , X Plaintiff-Appellant, - OPINION - _________________ - No. 02-5176 v. - KENNEDY, Circuit Judge. United States of America > appeals the district court’s grant of Wesley Bishop’s motion , to suppress a handgun seized by a deputy sheriff from an WESLEY DALE BISHOP, - Defendant-Appellee. - unattended automobile parked on private property. The gun provides the basis for a felon in possession charge. We N REVERSE the decision of the district court for the following Appeal from the United States District Court reasons. for the Eastern District of Tennessee at Greeneville. No. 01-00008—Thomas G. Hull, District Judge. I.

Argued: June 19, 2003 On August 22, 1999, at almost half past noon, Laverne Julian, a deputy county sheriff, went to a residence in a rural Decided and Filed: August 1, 2003 part of Carter County, Tennessee, to serve an arrest warrant on Tony Arnold for misdemeanor theft under $500. At the Before: KENNEDY and COLE, Circuit Judges; time, Tony Arnold resided at the home of Regina Arnold, his WILLIAMS, District Judge.* girlfriend.

_________________ When Deputy Julian arrived at the residence, he pulled into a narrow one-lane driveway and parked behind another COUNSEL vehicle. The vehicle was occupied by a man sitting in the driver’s seat. The car engine was not running. Deputy Julian, ARGUED: Guy W. Blackwell, ASSISTANT UNITED who was in uniform, approached the driver’s side of the STATES ATTORNEY, Greenville, Tennessee, for Appellant. vehicle, which was flanked by a dense woods. Speaking through the open window, Deputy Julian asked the man if he knew Tony Arnold and, after the man said yes, Julian asked if he had seen Tony Arnold or knew of his whereabouts, to * The Honorab le Glen M. W illiams, United States District Judge for which the man said no. Deputy Julian then asked the man the Western District of Virginia, sitting by designation.

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why he was there, and he responded that he was meeting “a II. boy from up the road.” When reviewing a district court’s decision on a motion to Deputy Julian proceeded to walk to the rear of the house suppress evidence, the court’s legal conclusions are reviewed and knocked on the back door. Regina Arnold answered the de novo and its factual findings are upheld unless clearly door and Deputy Julian asked if Tony Arnold was present. erroneous. United States v. Lewis, 231 F.3d 238, 241 (6th Regina Arnold said no. At this point, the parties dispute Cir. 2000). The district court granted Bishop’s motion to whether Regina Arnold told Deputy Julian that the man suppress the handgun, concluding that the exigent sitting in the driveway was Wesley Bishop or whether Julian circumstances exception to the Fourth Amendment warrant knew the man’s identity. Either way, from earlier discussions requirement (specifically, the plain view exception) did not with other officers in the county sheriff’s department, Deputy apply because Deputy Julian lacked a basis for assuming that Julian connected Bishop’s name with a reputation for violent the handgun was contraband. criminal behavior. The deputy, however, did not know that Bishop was a convicted felon. The Fourth Amendment prohibits unreasonable searches and seizures. Maryland v. Buie, 494 U.S. 325, 331 (1990). After conversing with Regina Arnold for approximately In delineating the contours of the Fourth Amendment’s thirty seconds, Deputy Julian proceeded back toward the warrant and probable cause requirements for searches and driveway and noticed that Bishop was gone. Deputy Julian seizures, the Supreme Court has recognized several had not heard the car door open or close. Deputy Julian exceptions that acknowledge the need for police officers to peered into the car through the open driver’s side window to protect themselves and the public from violence in see if Bishop was still inside it. He observed that the keys circumstances where it would not be practical to require the were in the ignition and that the barrel of a handgun was officer to secure a warrant and where probable cause may be poking from beneath a cushion on the driver’s seat. Deputy lacking. E.g., Buie, 494 U.S. at 334 (incident to an in-home Julian reached through the open window and removed the arrest, a police officer may look beyond “closets and other handgun, which he found to be loaded. spaces immediately adjoining the place of arrest from which an attack could be immediately launched” if “there [are] Deputy Julian went to his squad car and called his articulable facts which, taken together with the rational dispatcher, requesting information based on the vehicle’s inferences from those facts, would warrant a reasonably license plate and identification numbers. The deputy also prudent officer in believing the area to be swept harbors an asked the dispatcher to determine if there were any individual posing a danger to those on the arrest scene”); outstanding warrants for Bishop. He was given the vehicle Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (in context information and told that there was an outstanding arrest of a roadside stop, “the search of the passenger compartment warrant for Bishop based on his failure to appear on a state of an automobile, limited to those areas in which a weapon charge of driving on a revoked driver’s license. Deputy may be placed or hidden, is permissible if the police officer Julian then arranged to have the vehicle towed to the sheriff’s possesses a reasonable belief based on ‘specific and impound lot. Bishop did not return to the scene before articulable facts which, taken together with the rational Deputy Julian left. inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and that the suspect may gain immediate control of weapons”); Cady v. No. 02-5176 United States v. Bishop 5 6 United States v. Bishop No. 02-5176

Dombroski, 413 U.S. 433, 447-48 (1973) (automobile search permitting a police officer executing a search warrant to incident to police community caretaking function is temporarily seize a weapon that was in plain view but not permissible when police reasonably believe vehicle trunk, obvious contraband provided the seizure was justified by a which is vulnerable to intrusion by vandals, contains a gun); legitimate concern for police safety. 549 F.2d 1075, 1079 Chimel v. California, 395 U.S. 752, 763 (1969) (incident to (6th Cir. 1977). In Chapman, the police secured and executed an in-home arrest, it is reasonable for a police officer to a search warrant for marijuana possession at a specific search concealed spaces within the arrestee’s reach and seize residence in Detroit. When police conducted the search, at any weapons or evidence); Terry v. Ohio, 392 U.S. 1, 27 least ten people were present in the house. In conducting the (1968) (in context of investigatory stop, a limited patdown search, police discovered a loaded sawed-off shotgun under search for weapons is permissible if a police officer a couch and a rifle in plain view in an upstairs bedroom. The reasonably believes “that [the officer] is dealing with an defendant claimed that under United States v. Gray, 484 F.2d armed and dangerous individual”). As this Court has noted: 352 (6th Cir. 1973), the police had illegally seized the “Obviously, the Constitution does not limit the government weapons because at the time of the seizure the police did not officers’ rights to protect themselves from assault when their have any knowledge that the weapons were contraband. Id. fear is reasonably based on objective facts.” United States v. at 1078. With respect to the sawed-off shotgun, the court Kinney, 638 F.2d 941, 944 n.2 (6th Cir. 1981). concluded that the defendant could not challenge the seizure of that weapon because it was obvious contraband. With Under ordinary circumstances, the plain view exception respect to the rifle, the court found that police possession of permits the warrantless seizure of an object provided that the rifle was not an unreasonable seizure because (1) the (1) the officer is lawfully positioned in a place from which the police officer was lawfully positioned when he found the object can be plainly viewed; (2) the incriminating character rifle; and (2) there was a legitimate concern for police safety of the object is immediately apparent; and, (3) the officer has in that the defendant was not alone in the house at the time of a lawful right of access to the object itself. Horton v. the raid and the police were conducting a “raid on a portion of California, 496 U.S. 128, 136-37 (1990); see also Texas v. the Detroit drug scene.” Id. at 1078-79. Brown, 460 U.S. 730, 741-42 (holding that, “in the ordinary case,” “‘[t]he seizure of property in plain view . . . is United States v. Isham, 501 F.3d 989, 991 (6th Cir. 1974), presumptively reasonable, assuming there is probable cause similarly interpreted Terry as permitting police officers to to associate the property with criminal activity.’”). The seize a weapon that was not obvious contraband on the Supreme Court also has indicated that the plain view officers’ reasonable belief that the seizure was necessary to exception permits the warrantless seizure of “objects protect the officers’ safety. In Isham, police officers took a dangerous in themselves.” Coolidge v. New Hampshire, 403 shoplifting suspect, whose hands were cuffed in front of him, U.S. 443, 472 (1971) (plurality); see also United States v. to his car so that he could secure the car before he was taken Malachesen, 597 F.2d 1232, 1234 n.4 (8th Cir. 1979) to jail. As the suspect started to get into the vehicle, one of (observing same). the officers saw a box of ammunition on the front seat and asked the suspect if he had a weapon that fit the ammunition. The Sixth Circuit has twice approved of police seizure of a The suspect said that he did and that the weapon was in the weapon that was not obvious contraband based on an officer’s back seat. The officers then entered the car and discovered a reasonable belief that the weapon posed a threat to officer rifle under some other items in the back seat. The court safety. United States v. Chapman interpreted Terry as concluded that “police knowledge of the existence of a No. 02-5176 United States v. Bishop 7 8 United States v. Bishop No. 02-5176

firearm was triggered by their plain view of the box of a police officer must reasonably believe, based on specific ammunition and subsequent inquiry,” and hence within the and articulable facts, that the weapon posed an immediate rule established by Coolidge. Id. at 990. The court then held danger to officer or public safety. Deputy Julian had come to that “[w]hen the officers learned that there was a gun in the the property to serve an arrest warrant on Tony Arnold. car, they had reasonable grounds to seize it for their own self- Julian testified that he connected Bishop’s name with a protection within the Terry rationale. Id. at 990-91. In the person known for violent criminal behavior, and that Bishop alternative, the court held that the seizure was valid under had disappeared from the car into a heavily wooded area Cady because the police were acting in a community without making a sound in the thirty seconds that Bishop was caretaker function when the gun was discovered. Id. at 991. out of the deputy’s sight. Julian also testified that, upon discovering the handgun, he immediately became concerned In United States v. Malachesen, 597 F.2d 1232, 1234 (8th for his safety. Cir. 1979), the Eighth Circuit interpreted Coolidge as permitting a police officer to seize a weapon that was not Deputy Julian’s concern for his safety was objectively obvious contraband based on the officer’s reasonable belief reasonable: Julian had reason to assume that Bishop was a that the weapon posed a safety threat. In that case, police friend of Tony Arnold’s, the man he had come to arrest. officers executed a search warrant for marijuana and a Julian could have reasonably inferred that Bishop, as Arnold’s snowmobile at the defendant’s home and adjacent property. friend and a man with a reputation for violence, posed a During the search, a police officer discovered a cocked and confrontation risk. The presence of the handgun heightened loaded handgun under a mattress and noticed a bullet hole in the risk of violence in connection with a possible the bedroom wall near the bed. The gun was placed in the confrontation. Deputy Julian, who was surprised by Bishop’s possession of the inventory officer for the duration of the sudden and stealthy disappearance and had no clue as to search. The defendant was not present during the search, but Bishop’s immediate whereabouts, was alone in a heavily his roommate was. Before the search was completed, the wooded and sparsely populated area. The circumstances and officer who found the gun learned that the defendant had a surroundings heightened Deputy Julian’s vulnerability to felony record. When the defendant returned home, he attack. admitted to ownership of the gun and his prior felony conviction. The Malachesen court concluded that, even Deputy Julian also could reasonably believe that the though the incriminating nature of the handgun was not unattended gun posed a threat to public safety. The gun was immediately apparent to the police, their temporary seizure of left partially exposed in an unlocked and unattended car in a the gun was a reasonable precaution to assure the safety of all rural residential area. The gun could have been taken persons on the premises during the search. Id. The court also undetected by any passer-by, including a curious child. held that the temporarily seized handgun became contraband Deputy Julian’s decision to seize the gun to prevent it from and subject to seizure when the officers learned of the passing into the hands of someone other than the owner and defendant’s prior felony conviction. Id. at 1235. possibly being used against another person was reasonable in light of the risk that unattended guns pose to public safety. The parties do not dispute that Deputy Julian was lawfully positioned when the gun came into plain view. Thus, for the We find that the gun became contraband and subject to seizure of a gun in plain view (and which is not obvious seizure when Deputy Julian discovered that it was loaded. contraband) to be reasonable under the Fourth Amendment, Tennessee law permits the transportation of a handgun in a No. 02-5176 United States v. Bishop 9

vehicle provided that is unloaded, not concealed on or about the person possessing or carrying it, and the ammunition for the weapon is not in the immediate vicinity of the person or weapon. Tenn. Code Ann. § 39-17-1308(a)(1). The district court held that Deputy Julian had no reason to assume that the handgun indicated criminal activity because the handgun could have been lawfully possessed at the time under Tennessee’s handgun permit law. We disagree. Tennessee law entitles a handgun carry permit holder to carry a loaded handgun on his or her person provided that the handgun is legally owned or possessed by the permit holder and the permit holder has the permit in the holder’s immediate possession at all times when carrying the handgun. Id. § 39- 17-1351(n). A reasonable officer could believe that Tennessee law is violated if a handgun permit holder leaves a loaded handgun unattended in a vehicle. III. In sum, we hold that a police officer who discovers a weapon in plain view may at least temporarily seize that weapon if a reasonable officer would believe, based on specific and articulable facts, that the weapon poses an immediate threat to officer or public safety. We find that Deputy Julian’s seizure of the handgun was reasonable in light of the totality of circumstances. Finally, because the transportation of a loaded handgun is illegal in Tennessee, we hold that the gun became contraband and subject to permanent seizure. Consequently, we REVERSE the decision of the district court to suppress the handgun as evidence.