United States v. Duane Frederick Fisher

364 F.3d 970, 2004 U.S. App. LEXIS 7928, 2004 WL 856360
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 22, 2004
Docket03-3337
StatusPublished
Cited by26 cases

This text of 364 F.3d 970 (United States v. Duane Frederick Fisher) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Duane Frederick Fisher, 364 F.3d 970, 2004 U.S. App. LEXIS 7928, 2004 WL 856360 (8th Cir. 2004).

Opinion

COLLOTON, Circuit Judge.

Duane Frederick Fisher was charged with unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Fisher was stopped by police after a citizen reported to officers that a man matching Fisher’s description had threatened him with a gun. Fisher moved to suppress evidence obtained during the stop on the ground that the encounter constituted an arrest without probable cause. After the district court 1 denied Fisher’s motion, *972 Fisher entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion. Fisher now appeals, and we affirm.

I.

On the morning of October 11, 2002, Officers Clifford and Kingdon of the Minneapolis Police Department were driving through what they described as a violent, crime-infested neighborhood in response to a fight-with-weapons call. They stopped their patrol car to speak to two Native Americans, appellant Fisher and someone named Lorenzo, who appeared to the officers to be a juvenile. At the time, Fisher had a temporary cast and crutches, and was wearing a light brown plaid flannel shirt. During their encounter with the officers, Fisher and Lorenzo were cooperative and non-threatening. From their squad car, the officers questioned Fisher and Lorenzo to determine whether Lorenzo was a truant. Satisfied with the answers, the officers left and proceeded to their original destination.

The officers drove for about three blocks, where they were flagged down by a Hispanic male unknown to them. We will refer to this man as “the complainant.” The complainant told the officers that an “Indian guy” with crutches and a light brown flannel shirt'had pointed a gun at him only moments earlier, and that he thought he had been robbed by the same “Indian guy” several weeks earlier. The officers did not ask the complainant’s name or run a récords check. They told him to stay where he was located, and then left to retrace their route looking for Fisher.

When the officers spotted Fisher, they pointed their guns at him, ordered him to stop, and told him to raise his hands. Officer Clifford later explained that they had drawn their weapons because of concern for their safety. During this encounter, Fisher blurted out that he had a gun. Clifford found and removed a pistol from Fisher’s pocket. ■ Fisher was then arrested. When officers attempted to find the complainant, they could not locate him. All attempts to locate or identify him were unsuccessful.

After the government charged Fisher with unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1), Fisher moved to suppress his statement and the gun on the ground that the evidence was the fruit of an illegal arrest. The district court, upon de novo review of a recommendation from the magistrate judge, credited the testimony of the officers, and ruled that the officers had a reasonable, articulable suspicion that justified the stop and frisk of Fisher:

II.

Fisher’s argument has two prongs. First, he contends that his final encounter with the police was not a mere investigative stop, but that it became an arrest when the officers pointed their guns at him. Second, Fisher argues that this alleged arrest was illegal because it was effected without probable cause. Specifically, he contends that the statement of the unidentified complainant was insufficient to establish probable cause to arrest, especially in light of Fisher’s earlier cooperation with the officers. We review de novo whether a particular set of facts provides a reasonable, articulable suspicion for an investigative stop, Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and whether a particular seizure amounts to an arrest. United States v. Bloomfield, 40 F.3d 910, 916 (8th Cir.1994). Because we conclude that the stop was supported by a reason *973 able, articulable suspicion, and that the degree of force used by the officers did not transform the encounter from an investigative stop to an arrest, we reject Fisher’s contention.

The district court correctly held that the officers possessed a reasonable, articulable suspicion sufficient to conduct an investigative stop of Fisher under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Supreme Court long ago made clear that it is appropriate for police to conduct an investigative stop “when the victim of a street crime seeks immediate police aid and gives a description of his assailant.” Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). This is such a case.

During their initial encounter with Fisher, the officers had an opportunity to observe Fisher’s appearance and attire, including his cast and crutches. These characteristics certainly set Fisher apart from the ordinary pedestrian. Less than a minute later, in close proximity to where the officers had encountered Fisher, the officers were flagged down by the complainant. The complainant approached the officers, telling them he had been assaulted in that area by someone matching Fisher’s distinctive description moments earlier. Although the officers did not know the complainant’s name or why he was at the location, they were nonetheless confronted with an in-person report of a serious street crime and a description of the perpetrator that matched Fisher. The complainant’s report was corroborated by the fact that Fisher was in close proximity to the scene of the alleged assault at or around the time it was alleged to have occurred. Based on this information, the officers had reasonable suspicion that Fisher committed a crime, and that he was armed and dangerous.

An investigative stop must be limited in scope and manner to satisfy the requirements of Terry. There is “no ‘litmus-paper test’ or ‘sentence or paragraph’ rule to determine when, given the ‘endless variations in facts and circumstances,’ police-citizen encounters exceed the bounds of mere investigative stops.” United States v. Jones, 759 F.2d 633, 636 (8th Cir.1985) (quoting Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion)). It is well established, however, that when officers are presented with serious danger in the course of carrying out an investigative detention, they may brandish weapons or even constrain the suspect with handcuffs in order to control the scene and protect their safety. See United States v. Navarrete-Barron,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Aunhkhotep v. Kopfensteiner
E.D. Missouri, 2025
Abdullah v. Lepinski
D. Minnesota, 2023
Katz v. District of Columbia
District of Columbia Court of Appeals, 2022
United States v. Andre Johnson
31 F.4th 618 (Eighth Circuit, 2022)
Larenzo Irvin v. Tyler Richardson
20 F.4th 1199 (Eighth Circuit, 2021)
Casondra Pollreis v. Lamont Marzolf
9 F.4th 737 (Eighth Circuit, 2021)
Pollreis v. Marzolf
W.D. Arkansas, 2020
Powell v. Staycoff
D. Minnesota, 2019
Levi Wilson v. Scott Lamp
901 F.3d 981 (Eighth Circuit, 2018)
Reed Dempsey v. Bucknell University
834 F.3d 457 (Third Circuit, 2016)
United States v. Dontay Sanford
813 F.3d 708 (Eighth Circuit, 2016)
Josh Williams v. Scott Decker
767 F.3d 734 (Eighth Circuit, 2014)
Howard v. Ealing
876 F. Supp. 2d 1056 (N.D. Indiana, 2012)
United States v. Aquino
674 F.3d 918 (Eighth Circuit, 2012)
United States v. Smith
645 F.3d 998 (Eighth Circuit, 2011)
El-Ghazzawy v. Berthiaume
636 F.3d 452 (Eighth Circuit, 2011)
United States v. Barry McKnight
385 F. App'x 547 (Sixth Circuit, 2010)
United States v. Calvin Watson
Seventh Circuit, 2009
Henry Szabla v. City of Brooklyn Pk.
429 F.3d 1168 (Eighth Circuit, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
364 F.3d 970, 2004 U.S. App. LEXIS 7928, 2004 WL 856360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-duane-frederick-fisher-ca8-2004.