United States v. Gunner Lawson Crapser

472 F.3d 1141, 2007 U.S. App. LEXIS 499, 2007 WL 60385

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 10, 2007
• Docket: 05-30456
• Status: Published

Opinions

GRABER, Circuit Judge:

Defendant Gunner Lawson Crapser appeals his conviction, upon a guilty plea, of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He argues that the trial court erred in denying his motion to suppress. We affirm because the initial encounter between Defendant and the police was consensual or, alternatively, was supported by reasonable suspicion, and because his consent to search was voluntary.

FACTUAL AND PROCEDURAL BACKGROUND

The district court made extensive findings of fact, none of which is clearly erroneous and all of which are supported by evidence in the record. We therefore paraphrase the court’s findings here.

In July 2003, Multnomah County Sheriffs Deputy Todd Shanks stopped a vehicle driven by William Barrett. In the course of the stop, he found a pressure-cooker in the trunk. Shanks suspected that the pressure-cooker had been used in the manufacture of methamphetamine. Barrett told Deputy Shanks that the pressure-cooker belonged to “Gunner Crapser,” who was staying at an EconoLodge Motel in Gresham, Oregon, in a room registered to a white, female dancer named Summer Twilligear.

Shanks also learned that there was an outstanding arrest warrant for someone who used the name “Gunner Crapser.” The warrant information, however, was flagged to warn officers not to confuse the wanted person, whose true name was James Stover, with anyone else who used the name “Gunner Crapser.”

Shanks decided to go to the motel for two reasons. First, he intended to investigate whether the “Gunner Crapser” whom Barrett had described was the same man who was wanted. Second, Shanks intended to try to “knock and talk” his way into obtaining consent to search the room where Crapser was staying so as to look for evidence of methamphetamine activity. Shanks, who was in uniform and driving a marked patrol vehicle, asked for other officers to assist him at the motel. In the end, four uniformed officers and one plainclothes officer were involved in the contact that led to Defendant’s arrest.

The officers confirmed with the motel manager that Summer Twilligear rented Room 114. They then went to Room 114. Adjacent to an eight-foot-by-five-foot exterior concrete entryway is a five-foot-wide sidewalk that runs alongside the motel rooms. Next to the sidewalk is the parking area for motel guests. Although a sign in the parking lot warns that parking is reserved for motel guests, the parking lot and the walkways leading to the doors of the motel rooms are open to public view and are accessible by anyone in the parking area.

When the officers arrived at about 11 a.m. on the day in question, they parked where they were not immediately visible from Room 114. Sergeant Edward Walls, who was in uniform, took a precautionary position at the rear of Room 114. There are no windows or doors on that side of the structure, so his presence was not obvious to the occupants of Room 114. Deputies Marc Galloway and Chad Phifer, who also were in uniform, and Deputy Scott Timms, who was in plain clothes, accompanied Shanks when he knocked on the door to Room 114. All of the uniformed officers had visible sidearms, and the plain-clothes officer had a concealed weapon. The police firearms, however, remained holstered at all times.

In response to Shanks’ knock on the door of Room 114, a white woman, later identified as Twilligear, pulled back the curtains from inside the room and made eye contact with Shanks. Shanks asked Twilligear if she would open the door so that he could speak with her. She nodded in the affirmative and closed the curtains. About two minutes passed before she opened the door. While the officers waited, they heard what sounded like people moving things around inside the room.

Nonetheless, the officers remained outside. When the door opened, Twilligear and Defendant came out and closed the door behind them. This was the officers’ first contact with Defendant. Shanks asked Galloway and Phifer to speak with Defendant to determine whether he was the person identified in the arrest warrant. The three of them moved a short distance away. In the meantime, Shanks and Timms spoke with Twilligear. The two groups stood 10 to 25 feet from each other on the sidewalk near the parking area. During this initial part of the contact, the officers did not block or physically keep Defendant or Twilligear from walking away or returning to their room, nor did the officers affirmatively assert authority over the movements of Defendant or Twil-ligear.

Shanks asked Twilligear for identification. After obtaining her name and date of birth, he ran a records check and determined she was “clear.” Shanks explained to Twilligear why the police had come to her motel room and asked who was renting the room. Twilligear told Shanks that she had rented the room and that Defendant had been there the night before. Twilli-gear said that other people also had been in and out of the room. Although Twilli-gear admitted she used methamphetamine, she denied that she was “cooking” any drugs and denied that there were any drug chemicals in the room. At this point, Shanks left Twilligear and Timms to join Galloway, Phifer, and Defendant while Timms continued to speak with Twilligear in the hope of obtaining her consent to search the room.

While Galloway and Phifer were speaking with Defendant about the warrant, they noticed that Defendant was very nervous and that his hands were shaking. Defendant’s nervous demeanor contrasted sharply with his calm demeanor during a 20-minute traffic stop by these same officers about a week earlier. Defendant’s behavior raised Galloway’s suspicions. When Shanks joined the group a bit later, he, too, noticed that Defendant was very nervous; his hands were trembling and an artery was visibly pulsating in his neck.

Defendant explained to the officers that, in the past, he had been mistaken for another person who used the name “Gunner Crapser” and that there were no warrants outstanding for his arrest. Phifer left to run a computer check in his patrol vehicle. While Phifer was away and Defendant was talking with Galloway, Galloway asked Defendant something about drugs.

Defendant unexpectedly pulled a syringe from his right back pocket and said, “This is all I have on me.” The syringe was capped and looked like the kind of syringe used by intravenous drug users. The cylinder contained a clear liquid that Galloway suspected was methamphetamine.

After Phifer confirmed that Defendant’s physical characteristics did not match those of the wanted person, he returned from his patrol car and told Galloway that Defendant was “clear.” But, by this time, Defendant had produced the syringe. Galloway patted him down to ensure that he had nothing on his person, other than the syringe, that could be used as a weapon. Shanks was present during the pat-down, which occurred about five minutes after Defendant emerged from Room 114.

Shanks confirmed with Defendant that he had stayed in Room 114 the previous night and that Twilligear was renting the room. Defendant said he had some personal property in the room. Shanks asked Defendant whether he would consent to a search of his person. Defendant answered “yes.” Shanks then searched Defendant’s pockets. In the right front pants pocket Shanks discovered a tissue-wrapped roll of three or four syringes and a small baggie containing what appeared to be methamphetamine. Shanks arrested Defendant for possession of a controlled substance, handcuffed him, and gave him the Miranda warnings. Shanks asked Defendant whether he understood his rights. Defendant answered “yes.”

Shanks then told Defendant that he believed there might be a methamphetamine manufacturing operation in Room 114 and asked for Defendant’s consent to search the room. At the same time, Timms was asking Twilligear for consent to search the room. Twilligear expressed concern that she not be held accountable for the content of Defendant’s bags and said loudly, in Defendant’s direction, that he should “own up” to what he had in the room. Defendant told Shanks that his blue adidas duffel bag contained a 9 mm handgun and a shotgun.

Specifically in response to Shanks’ request for consent to search the room, Defendant said that he would consent. Shanks presented Defendant with a written consent form and read it, verbatim, to Defendant. Shanks also ascertained that Defendant had completed nine years of schooling. Defendant told Shanks that he understood the form, and he signed it. The consent form identified the location and gave permission to search the room and the blue adidas duffel bag for evidence of controlled substance and firearms offenses. Twilligear signed a similar form consenting to the search of Room 114. The resulting search turned up the firearms that are the subject of this case.

In October 2003, the grand jury returned a three-count indictment. Defendant filed a motion to suppress, asserting that the officers had violated the Fourth Amendment when they detained him because they did not have a reasonable suspicion to seize him, search him, pat him down, or search his motel room. The district court held an evidentiary hearing and denied the motion. Defendant pleaded guilty to the illegal firearm count in the indictment in exchange for dismissal of the other counts. He reserved the right to appeal the district court’s rulings on his motion to suppress. This timely appeal followed.

STANDARDS OF REVIEW

We review de novo the denial of a motion to suppress evidence, United States v. Bautista, 362 F.3d 584, 588-89 (9th Cir.2004), but review for clear error the district court’s underlying findings of fact, United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir.2004). Whether an encounter between law enforcement officers and a defendant amounts to a seizure is a mixed question of law and fact that we review de novo. United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.1997). Likewise, we review de novo whether a seizure was supported by reasonable suspicion. United States v. Thompson, 282 F.3d 673, 678 (9th Cir.2002). Finally, we review for clear error a district court’s finding that the defendant voluntarily consented to a search. United States v. Pang, 362 F.3d 1187, 1191 (9th Cir.2004).

DISCUSSION

A. The initial contact with Defendant was consensual.

The first question that we must answer is whether the initial conversation with Defendant was a seizure or, instead, was voluntary and consensual. We hold that the district court properly concluded that the encounter was voluntary and consensual, not amounting to a seizure.

This situation bears a strong resemblance to the encounter that we described in United States v. Cormier, 220 F.3d 1103 (9th Cir.2000). There, Officer Peters went to Cormier’s motel room, knocked, and asked to come in and speak with him. After asking him some questions, Peters asked if she could look around, and Cormier assented. She found a gun and placed Cormier under arrest. Id. at 1107. Because Cormier had a reasonable expectation of privacy in his motel room, we analyzed “whether he voluntarily opened the door or, alternatively, whether there were coercive circumstances that turned an ordinary consensual encounter into one requiring objective suspicion.” Id. at 1109. Citing Davis v. United States, 327 F.2d 301, 303-04 (9th Cir.1964), we held:

This Court stated the general rule regarding “knock and talk” encounters almost forty years ago in the following passage:

Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof — whether the questioner be a pollster, a salesman, or an officer of the law. Davis, 327 F.2d at 303. That view has now become a firmly-rooted notion in Fourth Amendment jurisprudence. See [United States v.] Jerez, 108 F.3d [684, 691 (7th Cir.1997)]; United States v. Taylor, 90 F.3d 903, 909 (4th Cir.1996); United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir.1991); United States v. Roberts, 747 F.2d 537, 543 (9th Cir.1984). The facts of this case fall under the general rule of Davis. Here, Peters knocked on the door for only a short period spanning seconds. In addition, Peters never announced that she was a police officer while knocking nor did she ever compel Cormier to open the door under the badge of authority. Because there was no police demand to open the door, see United States v. Winsor, 846 F.2d 1569, 1573 n. 3 (9th Cir.1988) (en banc), and Peters was not unreasonably persistent in her attempt to obtain access to Cormier’s motel room, see Jerez, 108 F.3d at 691-92, there is no evidence to indicate that the encounter was anything other than consensual. Therefore, no suspicion needed to be shown in order to justify the “knock and talk.” See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

Cormier, 220 F.3d at 1109.

Here, similarly, there was a single, polite knock on the door. The police did not demand that Twilligear open the door; they asked, she nodded an affirmative response, and the police waited patiently and silently for her to decide that she (and Defendant, as it turned out) were ready to come outside about two minutes later. Although the officers were armed, they made no effort to draw Defendant’s attention to their weapons, nor did they use any form of physical force. The police made no effort to enter the motel room. The encounter occurred in the middle of the day, on a sidewalk in public view. The entire event, up to the time Defendant produced the syringe, lasted about five minutes. Although there were four officers present, most of the time only two talked to Defendant, while two talked to Twilligear, and part of the time only Galloway was with Defendant. The police did not block Defendant or Twilligear, suggest that they could not leave or return to their room, give them orders, or affirmatively assert authority over their movements.

It also is instructive to contrast this case with Orhorhaghe v. INS, 38 F.3d 488 (9th Cir.1994), in which we found a seizure instead of a consensual encounter. There, the officers positioned themselves so as to be certain the defendant could not escape or leave, the officers made a deliberate effort to reveal their concealed firearms; the encounter occurred in a non-public setting, and the officers acted in an aggressive manner suggesting that compliance would be compelled. The ratio of officers to defendants was 4 to 1. Id. at 491; see also United States v. Washington, 387 F.3d 1060, 1068-69 (9th Cir.2004) (holding that an encounter was not consensual where it occurred in a private place, the officers refused to honor the defendant’s request to shut the door, and the officers advised the defendant several times that he could be arrested and told him he could not terminate the encounter).

In short, we hold that the “knock and talk” resulted in a voluntary, consensual encounter between Defendant and the police outside Room 114.

B. Even if Defendant was seized, the police had reasonable suspicion to stop him.

Even if the initial encounter was a seizure, it was a Terry stop supported by reasonable suspicion. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (explaining that, in determining whether an officer had reasonable suspicion, “due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience”). Reasonable suspicion is less than probable cause; “[i]t is merely ‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.” United States v. Tiong, 224 F.3d 1136, 1140 (9th Cir.2000) (quoting Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

First, the police had a reasonable suspicion that Defendant was the Gunner Crap-ser for whom they had an outstanding warrant, until Phifer completed the computer check in his patrol car. Accordingly, it was permissible to detain him in order to resolve questions about his identity. See United States v. Christian, 356 F.3d 1103, 1106 (9th Cir.2004) (upholding a Terry stop to determine a suspect’s identity).

Second, the police had a reasonable suspicion that Defendant was engaged in the manufacture of methamphetamine. By the time Galloway asked Defendant a question about drugs, the police knew four significant facts: (1) Defendant displayed extremely nervous behavior, in contrast to his behavior a week earlier when the same officers had stopped him for another reason; (2) Barrett, upon being arrested, had said that the pressure-cooker found in the trunk of his vehicle belonged to Gunner Crapser, and a pressure-cooker could be used in methamphetamine production; (3) Twilligear admitted to being a methamphetamine user and told police that other people had come and gone from Room 114 the previous night; and (4) between the time Twilligear nodded her assent to talk to Shanks and the time she and Defendant emerged, two minutes elapsed, during which the police heard the sounds of people moving things around the room. These facts, taken together, were enough to permit a reasonable officer to suspect that criminal activity was afoot. Additionally, although Defendant had explained that he was not the same Gunner Crapser for whom the arrest warrant had been issued, the police had not yet confirmed that fact and still reasonably suspected that he might be the wanted person.

Although the dissent is correct that nervousness, possession of a pressure-cooker, staying in a motel room with a person using methamphetamine, and taking a few minutes to open the door are each, by themselves, not necessarily indicative of criminal behavior, all of these facts together are. In United States v. Arvizu, 534 , 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), the Supreme Court emphasized that reviewing courts must consider the totality of the circumstances in determining whether officers had reasonable suspicion to conduct a Terry stop. There the court of appeals rejected the facts identified by the officer as contributing to his suspicion because they were readily susceptible to innocent explanations, but the Supreme Court admonished that Terry “precludes this sort of divide- and-conquer analysis.” Id. at 274, 122 S.Ct. 744; see also United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir.1992) (stating that “the facts used to establish reasonable suspicion need not be inconsistent with innocence” (internal quotation marks omitted)). Following Arvizu’s guidance, in view of all the circumstances known to the officers, we conclude that the initial encounter with Defendant, if a stop, was supported by reasonable suspicion.

Defendant responds that, even if reasonable suspicion existed, a Terry stop cannot occur “at” a person’s residence. We disagree. Although we have not squarely considered this issue before, we have held that police may make a warrantless arrest of a suspect who voluntarily opens the door to his residence in response to a knock by the police. United States v. Vaneaton, 49 F.3d 1423, 1426-27 (9th Cir.1995). In Va-neaton, the defendant argued that his arrest violated the rule of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), that police must have a warrant in order to arrest a suspect inside his home. 49 F.3d at 1424. We reasoned that, where officers use no force, threats, or subterfuge, a suspect’s decision to open the door exposes him to a public place, and the privacy interests protected by Payton are not violated. Id. at 1427.

Likewise, we now hold that when a suspect voluntarily opens the door of his residence in response to a non-coercive “knock and talk” request, the police may temporarily seize the suspect outside the home (or at the threshold) provided that they have reasonable suspicion of criminal activity. If an arrest in the doorway is allowed, certainly the lesser intrusion of a Terry stop in the hallway is also permissible.

In United States v. Gori, 230 F.3d 44 (2d Cir.2000), the Second Circuit, using similar reasoning, held that police who ordered occupants of an apartment to step into the hallway, and who seized them there based on reasonable suspicion, did not violate the Fourth Amendment. Although there was no warrant, and probable cause had not yet developed, the Gori court relied on Terry and United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), for this holding. In Santana, the police were 15 feet from the suspect’s house when they saw her standing in the doorway; when she retreated into the vestibule, the officers followed her through the open door and arrested her. Id. at 40, 96 S.Ct. 2406. The Supreme Court upheld the conviction. In Gori, the Second Circuit held:

The defendants argue that reasonable suspicion is not enough because the Santana exception to Payton is limited to circumstances in which officers have probable cause to arrest a suspect exposed to public view. We see no basis for that limitation. The Santana analysis, which supports the warrantless arrest of a suspect who has no legitimate expectation of privacy, a fortiori allows the lesser intrusion of a brief investigatory detention. See Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (investigatory detention “is a far more minimal intrusion” than arrest); United States v. Place, 462 U.S. , 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (same).

230 F.3d at 53.

Our cases establish that Terry does not apply inside a home. See United States v. Martinez, 406 F.3d 1160, 1165 (9th Cir.2005) (“Certainly, the usual rules pertaining to Terry stops do not apply in homes.”); United States v. Winsor, 846 F.2d 1569, 1577-78 (9th Cir.1988) (en banc) (declining to apply Terry’s reasonable suspicion standard to a warrantless search in a home). But see United States v. Flippin, 924 F.2d 163, 165-66 (9th Cir.1991) (holding that, after police entered a motel room with the suspect’s consent, it was permissible to seize and search a make-up bag held by the suspect based on mere reasonable suspicion that it contained a weapon).

There is a critical difference, however, between the inside of a home and the outer threshold and beyond, as recognized in Santana. That difference is the suspect’s expectation of privacy. When Defendant opened the motel room door and came outside, he surrendered his heightened expectation of privacy and the Fourth Amendment protections that go along with it — including the right not to be detained based on reasonable suspicion.

In sum, we hold that, if Defendant was seized, the seizure was a permissible Terry stop supported by reasonable suspicion.

C. Defendant’s consent to search his person, motel room, and duffel bag was voluntary.

The only remaining question is whether Defendant’s oral and written consent to search was voluntarily given. We consider five factors in determining the voluntariness of a consensual search: “(1) whether the defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the defendant was notified that [he] had a right not to consent; and (5) whether the defendant had been told a search warrant could be obtained.” United States v. Jones, 286 F.3d 1146, 1152 (9th Cir.2002).

The district court found that Defendant was in custody when he consented to the search, and the government concedes that point. Nonetheless, “[a] person in custody is capable of giving valid consent to search.” United States v. Lindsey, 877 F.2d 777, 783 (9th Cir.1989). The remaining factors all militate in favor of voluntariness: The officers did not have their weapons drawn, Defendant was given Miranda warnings and was told that he had the right to refuse consent, and Defendant was not told that a search warrant would or could be obtained if he refused consent.

Accordingly, we hold that the district court’s finding that Defendant knowingly and voluntarily consented to the search was not clearly erroneous.

AFFIRMED.