United States v. Burkett

612 F.3d 1103, 2010 U.S. App. LEXIS 14815, 2010 WL 2814312
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 20, 2010
Docket09-30260
StatusPublished
Cited by21 cases

This text of 612 F.3d 1103 (United States v. Burkett) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Burkett, 612 F.3d 1103, 2010 U.S. App. LEXIS 14815, 2010 WL 2814312 (9th Cir. 2010).

Opinion

OPINION

HALL, Circuit Judge:

Robert James Burkett appeals from a judgment of conviction, after a bench trial, of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Burkett’s sole contention on appeal is that the district court erred in denying his motion to suppress the automatic pistol found in his coat pocket during a pat-down search conducted by a Washington State Patrol trooper after an automobile in which Burkett was riding as a passenger was stopped for speeding. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

*1104 I.

At approximately 1:00 a.m. on May 11, 2008, Washington State Patrol Trooper Benjamin Blankenship was on patrol on Highway 12 in Grays Harbor County, Washington. In his rearview mirror, Trooper Blankenship observed the headlights of a car approaching at “a pretty good clip.” Based on nearly twenty-two years of law enforcement experience, Trooper Blankenship believed that the car was traveling over the posted speed limit of 55 miles per hour. As a result, he activated his rear antenna radar which registered a speed of 67 miles per hour. Once he verified that reading with a second radar check, Trooper Blankenship pulled his patrol car behind the speeding vehicle, a Ford Taurus, turned on his emergency lights, and tried to effect a traffic stop.

The driver of the Taurus did not respond to Trooper Blankenship’s emergency lights by pulling over to the side of the highway. Instead, the vehicle continued ahead at the same speed, eventually slowing to 4(M5 mph, and then turned onto an exit ramp leading off the highway at Devonshire Road and came to a stop just past the top of the ramp. The Taurus traveled a total of eight-tenths of a mile after Trooper Blankenship turned on his emergency lights.

Because there were multiple safe places to pull over before that point, Trooper Blankenship considered this to be “an extremely long time” to respond, and he began to suspect that “something [was] not right.” He used his spotlight to illuminate the passenger compartment of the car as it continued down the highway. He also took the unusual step of calling for another officer, Trooper Eisfeldt, to respond as backup since the Taurus had failed to respond to his emergency lights.

Once Trooper Blankenship turned on his spotlight, he could see a male passenger, later identified as Burkett, making “furtive movements” as the car continued to travel. Burkett leaned forward in his seat but kept his head rigid as if to make it appear that he was continuing to look forward and to disguise his movements. Nonetheless, the trooper could see the movement of Burkett’s shoulders because the spotlight was reflecting off the white jacket he was wearing. It appeared that Burkett was either hiding or retrieving something from underneath the seat, an observation that heightened Trooper Blankenship’s concerns.

When the Taurus finally stopped, it was on Devonshire Road, a road with less traffic than Highway 12. At that point, Trooper Blankenship approached the driver’s side, spoke with the female driver, and asked for her license and registration. At the same time, Trooper Blankenship used his flashlight to illuminate Burkett’s hands because the movements he had observed and the failure of the car to stop caused him to believe Burkett presented the “biggest concern” if there was a weapon in the car. When Trooper Blankenship first walked up to the driver’s door, Burkett’s hands were in his lap, but they did not remain in that position, or even stay in the trooper’s view. Trooper Blankenship observed that both the driver and Burkett appeared to be “unusually nervous.”

Trooper Blankenship asked the driver if she knew how fast she was going, and then told her he had clocked the vehicle going 67 miles per hour. He asked Burkett what he was doing just before the car stopped, to which Burkett responded, “Nothing.” Knowing this was untrue based on his own observations, Trooper Blankenship told Burkett he saw him place something under the seat. Burkett first appeared startled and then said something about having a drink, pointing out a cup of liquid on the “transmission hump” between *1105 the seats. Blankenship noted that the response appeared to be something that “just popped into [Burkett’s] head” to explain his actions. Moreover, this statement did not appear to be true because it was not consistent with the movements the trooper saw before the car came to a stop. Burkett’s movements were “more forward and under the seat, as opposed to his left and then down.” Based on what he observed and Burkett’s response, Trooper Blankenship suspected that Burkett might be armed. At that point, Trooper Blankenship asked for identification, which Burkett provided.

Because of his increasing safety concerns, Trooper Blankenship asked Burkett to get out of the car. However, rather than using the hand closest to the door, his right hand, to open it, Burkett made the “unusual movement” of reaching across his body and opening the door with his left hand, thereby blocking the officer’s view of both of his hands with his body. Because this further heightened Trooper Blankenship’s suspicions, he walked to the back of the car to reposition himself so he could see Burkett as he got out of the car.

Initially, Trooper Blankenship could not see Burkett’s hands as he got out of the car. But then, as Burkett turned toward the back of the car and the trooper, “it appeared that he was reaching with his right hand trying to find[the] front coat pocket” of his white, knee-length jacket. Trooper Blankenship yelled for him to keep his hands out of his pocket and then stepped forward and grabbed Burkett by the right arm. He escorted Burkett to the back of the car where he had Burkett place his hands on the trunk and spread his 'feet. The trooper then began a pat-down search for weapons.

As the trooper started the pat-down search, Burkett “kind of turned his torso to the right and raised his right hand up off the trunk.” Trooper Blankenship pushed Burkett’s hand back onto the trunk and told him to keep his hands in place. Burkett then tried to move away two more times. It was at that point that Trooper Eisfeldt arrived at the scene. When Burkett noticed the arrival of the second officer, he said, “You’ve got me,” and put his hands on the trunk lid. Burkett then acknowledged that he had a gun in his right jacket pocket. Trooper Blankenship retrieved the .380 automatic pistol from that pocket.

On redirect at the suppression hearing, Trooper Blankenship stated that he did not follow the usual practice of retrieving the driver’s identification and returning to his car to radio the information to his dispatcher because, in the circumstances, his suspicions had been raised. He said that without such suspicions he would not ordinarily call another trooper to the scene. Moreover, Trooper Blankenship stated that, by returning to his car and speaking on the radio, he would have placed himself into. a vulnerable position unless he first addressed his suspicions that Burkett might be armed.

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Cite This Page — Counsel Stack

Bluebook (online)
612 F.3d 1103, 2010 U.S. App. LEXIS 14815, 2010 WL 2814312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-burkett-ca9-2010.