RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Vite-Espinoza, Nos. 02-5491/5492 ELECTRONIC CITATION: 2003 FED App. 0300P (6th Cir.) et al. File Name: 03a0300p.06 Tennessee, for Appellants. Hilliard H. Hester, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for UNITED STATES COURT OF APPEALS Appellee. ON BRIEF: Sumter L. Camp, FEDERAL FOR THE SIXTH CIRCUIT PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, Paul _________________ J. Bruno, BRUNO, HAYMAKER & HEROUX, Nashville, Tennessee, for Appellants. Hilliard H. Hester, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for UNITED STATES OF AMERICA , X Appellee. Plaintiff-Appellee, - - BOGGS, J., delivered the opinion of the court, in which - Nos. 02-5491/5492 SUHRHEINRICH, J., joined. CLAY, J. (pp. 14-21), v. - delivered a separate opinion concurring in the outcome > reached by the majority. , MARIO JOAQUIN VITE- - ESPINOZA (02-5491); JOSE - _________________ MARTINEZ-RIVERA (02-5492), - OPINION Defendants-Appellants. - _________________ - N BOGGS, Circuit Judge. Defendants Mario Joaquin Vite- Appeal from the United States District Court Espinoza and Jose Martinez-Rivera appeal the district court’s for the Middle District of Tennessee at Nashville. denial of their motion to suppress, on Fourth Amendment No. 01-00112—Todd J. Campbell, District Judge. grounds, firearms found in their possession and statements they made as they were taken into custody. A joint federal, Argued: October 15, 2002 state, and local police task force investigating the counterfeiting of immigration and identification documents Decided and Filed: August 25, 2003 executed a valid federal search warrant on a house in Springfield, Tennessee, owned and occupied by a third party. Before: BOGGS, SUHRHEINRICH, and CLAY, Circuit During the course of that raid, the defendants were found Judges. outside the house, but on the premises. It emerged that the defendants were aliens illegally in this country, the police _________________ discovered a concealed handgun on Martinez-Rivera and another concealed handgun in Vite-Espinoza’s truck in the COUNSEL house’s driveway, and the defendants were taken into custody of the Immigration and Naturalization Service (“INS”). After ARGUED: Sumter L. Camp, FEDERAL PUBLIC denial of their motions to suppress the handguns, each DEFENDER’S OFFICE, Nashville, Tennessee, Paul J. defendant pleaded guilty to being an illegal alien in Bruno, BRUNO, HAYMAKER & HEROUX, Nashville, possession of a firearm, in violation of 18 U.S.C.
1 Nos. 02-5491/5492 United States v. Vite-Espinoza, 3 4 United States v. Vite-Espinoza, Nos. 02-5491/5492 et al. et al.
§ 922(g)(5)(A), but reserved the right to appeal the district admitted to owning. The defendants were taken into custody court’s denial of the motion to suppress. It is this appeal that by the INS. James Grant, a Tennessee Highway Patrol officer is now before the court. We affirm. assigned to the raid, determined that Vite-Espinoza’s truck was leased and that other vehicles on the premises also I registered to Vite-Espinoza had title and licensing irregularities. Grant impounded the truck, took an inventory, On July 5, 2001, following up on intelligence that the house and returned it to the lien-holder. The search of the house was being used to produce and sell counterfeit immigration itself uncovered “several identification documents, [a] documents and social security cards, as well as deal large Polaroid camera, a typewriter, . . . large quantities of quantities of marijuana, the United States Secret Service ammunition, . . . blank Mexican birth certificates,” and more retrieved trash left for collection outside the house. In the marijuana remnants, but no bulk marijuana. trash were found “stems, seeds and remnants of marijuana” and Mexican birth certificates. On this evidence, a federal On July 25, 2001, the defendants were indicted for being search warrant was issued for the house. Prior to execution of illegal aliens in possession of a firearm, in violation of the warrant, the law enforcement agents involved, about 18 U.S.C. § 922(g)(5)(A), possession of false social security fifteen officers from the INS, the Secret Service, and cards, in violation of 18 U.S.C. § 1028(a)(6), and using false Tennessee state and local police agencies, agreed to question social security numbers, in violation of 42 U.S.C. all persons found on the premises regarding their immigration § 408(a)(7)(b). After arraignment and unsealing of the search status, on the basis that persons found in a location where warrant, the defendants moved to suppress the firearms, on counterfeit immigration documents are dealt could reasonably the grounds that the guns were seized without a warrant or an be suspected of being illegal aliens, and to perform Terry applicable warrant-requirement exception. They also moved stops-and-frisks, on the basis that persons involved in drug to suppress their statements incident to arrest, on the ground deals are frequently armed and dangerous. that they were products of the unconstitutional seizure. The district court denied the motions to suppress, finding that The police raided the house and executed the search while the defendants and the truck were not covered by the warrant that same day. Four men and a woman, among them search warrant and there was insufficient evidence that the the defendants, were found in the back yard of the house and defendants had consented to the search, the police performed immediately handcuffed and patted down. The pat-down of a valid Terry stop-and-frisk on the defendants and the gun in Martinez-Rivera uncovered a handgun in his waistband. Vite- the truck would inevitably have been discovered pursuant to Espinoza’s search uncovered no weapons, but the officers an inventory search of the truck following its impoundment took documents and a billfold from his pocket. Upon under a Tennessee statute. Subsequently, the defendants questioning, both Vite-Espinoza and Martinez-Rivera pleaded guilty to the firearms charge in return for a dismissal admitted to being in the country illegally. The officers also of the other charges, but reserved their right to appeal the found another handgun lying on the ground, which another of denial of their motions to suppress. Vite-Espinoza was the men present admitted dropping. At this point, the officers sentenced to ten months of incarceration, followed by two decided to search the vehicles in the driveway of the house. years of supervised release, and Martinez-Rivera to twelve Under the floorboard of a truck owned by Vite-Espinoza, the months of incarceration, also to be followed by two years of police discovered another handgun, which Vite-Espinoza supervised release. Both timely appealed the denial of their Nos. 02-5491/5492 United States v. Vite-Espinoza, 5 6 United States v. Vite-Espinoza, Nos. 02-5491/5492 et al. et al.
motions to suppress to this court and we consolidated their ‘would have been discovered by lawful means.’” Leake, 95 appeals. F.3d at 412 (quoting Nix, 467 U.S. at 444). “[T]he government can meet its burden of showing that the tainted II evidence inevitably would have been discovered through lawful means ‘by establishing that, by following routine The generally applicable principles of search and seizure procedures, the police would inevitably have uncovered the jurisprudence are well-known and settled. The United States evidence.’” United States v. Kennedy, 61 F.3d 494, 500 (6th Constitution bars “unreasonable searches and seizures.” U.S. Cir. 1995) (quoting United States v. Ramirez-Sandoval, 872 Const. amend. IV. A stop for questioning is reasonable if the F.2d 1392, 1399 (9th Cir. 1989)). police officer is “able to point to specific and articulable facts which, taken together with rational inferences from those However, as straightforward as the Terry standard is, its facts, reasonably warrant that intrusion” as measured by an application to the facts of a given case remains, outside the objective standard. Terry v. Ohio, 392 U.S. 1, 21-22 (1968). limits of a few bright-line rules, to a considerable degree Moreover, when the officer is “justified in believing that the indeterminate. The court faces a question of first impression individual whose suspicious behavior he is investigating at unless there is precedent finding reasonable suspicion in a close range is armed and presently dangerous to the officer or factual situation that in every relevant respect was no more to others,” the officer may conduct a search “limited to that suspicious, or finding no such suspicion in a factual situation which is necessary for the discovery of weapons which might that in every relevant respect was no less suspicious. See be used to harm the officer or others.” Id. at 26-27. In Illinois v. Gates, 462 U.S. 213, 238 n.11 (1983) (stating that finding reasonable suspicion, “the totality of the in the course of adjudicating the existence of reasonable circumstances–the whole picture–must be taken into suspicion, “one determination will seldom be a useful account.” United States v. Cortez, 449 U.S. 411, 417 (1981). ‘precedent’ for another”). Given the near-infinite variety of “The purpose of this limited search is not to discover factual circumstances in which Terry stops-and-frisks occur, evidence of crime, but to allow the officer to pursue his it is unsurprising that neither party can present such investigation without fear of violence.” Adams v. Williams, precedent, but that both must instead rely on cases with are 407 U.S. 143, 146 (1972). merely similar in one or more particular aspects. The exclusionary rule bars the admission of items seized In this context, we turn to the facts of the present case. As during an unconstitutional search, Weeks v. United States, 232 the police entered the premises, they had reason to suspect, or U.S. 383, 398 (1914), and of testimony concerning in some instances even probable cause to believe, that the knowledge acquired during such a search, Silverman v. house was used as a factory of counterfeit immigration and United States, 365 U.S. 505, 509 (1961). However, “evidence identification documents for Mexican nationals and for the may be admitted if the government can show that the trafficking of marijuana. Furthermore, rational inferences evidence inevitably would have been obtained from lawful warranted reasonable suspicions that those encountered on the sources in the absence of the illegal discovery.” United States premises would either be counterfeiters themselves or their v. Leake, 95 F.3d 409, 412 (6th Cir. 1996) (citing Nix v. illegal alien customers, because legal residents have of course Williams, 467 U.S. 431, 444 (1984)). “The burden of proof little need for counterfeit documents, or that they would be is on the government to establish that the tainted evidence armed and dangerous, because drug traffickers tend to be so. Nos. 02-5491/5492 United States v. Vite-Espinoza, 7 8 United States v. Vite-Espinoza, Nos. 02-5491/5492 et al. et al.
Indeed, the court below made a finding of fact to that effect. circumstances.” Bohannon, 225 F.3d at 617 (quoting United At this point the police encountered the defendants, both of States v. Patterson, 885 F.2d 483, 485 (8th Cir. 1989)). whom appeared to be of Hispanic ethnicity, in the back yard. The defendants point out that the case at bar differs in that The court below and the United States rely primarily on they were not entering or leaving the searched residence but United States v. Bohannon, 225 F.3d 615 (6th Cir. 2000). In were merely present in its backyard. Indeed, this Bohannon, while law enforcement agents were executing a circumstance does render the inference of involvement with search warrant on a residence suspected of being used as a the criminal activity inside the house weaker, but only slightly methamphetamine laboratory, two men approached the so. Innocent individuals are not significantly more likely to residence. Id. at 616. The law enforcement agents seized and while away their hours in the backyard of a drug and searched the men before they entered the residence, turning counterfeit document distribution facility than they are to up incriminating evidence. Ibid. We held that detention of enter or to leave it. And in so far as their presence raises a those entering such a premise was constitutional. Id. at 617 reasonable suspicion of involvement in criminal activity, the (expanding on Michigan v. Summers, 454 U.S. 692, 705 rationales found sufficient in Bohannon, prevention of flight (1981) (permitting detention of occupants of a premise being and harm to officers conducting the search, are equally searched subject to a warrant)). See also Baker v. Monroe applicable here. Township, 50 F.3d 1186, 1192 (3d Cir. 1995). We reasoned that most of the rationales underlying Summers, prevention of The defendants cite numerous cases for the proposition that flight if incriminating evidence is found and minimization of the additional suspicious circumstances are insufficient to risk of harm to the officers, were also present in the justify a Terry stop-and-frisk. Merely observing a suspect circumstances of Bohannon, even if the third rationale of conversing with known narcotics addicts by itself is Summers that the occupants would assist in the orderly insufficient to create reasonable suspicion. Sibron v. New completion of the search was not. Bohannon, 225 F.3d at York, 392 U.S. 40, 63-64 (1968). “[M]ere propinquity to 616-17. See also Leveto v. Lapina, 258 F.3d 156, 167 n.5 (3d others independently suspected of criminal activity does not, Cir. 2001) (citing Bohannon for the proposition that “[a] without more,” give rise to a reasonable belief that the suspect detention may be reasonable even if fewer than all of is armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 91- [Summers] law enforcement interests are present”); Burchett 93 (1979). “[W]hile the fact of companionship did not of v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (holding “that itself justify [a] frisk . . . , it is not irrelevant to the mix that officers act within their Summers powers when they detain an should be considered in determining whether the agent’s individual who approaches a searched property, pauses at the actions were justified.” United States v. Bell, 762 F.2d 495, property line, and flees when the officers instruct him to get 498-99 (6th Cir. 1985). “The likelihood that any given person down” because while “this reaches beyond Summer’s of Mexican ancestry is an alien is high enough to make ‘occupants’ language, it is consistent with the policies that Mexican appearance a relevant factor, but standing alone it Summers has identified”). We held that even “the possible does not justify stopping all Mexican-Americans to ask if danger presented by an individual approaching and entering they are aliens.” United States v. Brignoni-Ponce, 422 U.S. a structure housing a drug operation is obvious. In fact, it 873, 887-88 (1975). The “racially-biased assumption that . . . would have been foolhardy for an objectively reasonable a man of color wearing dreadlocks . . . must have been an officer not to conduct a security frisk under the illegal alien from Jamaica” in combination with the “long- Nos. 02-5491/5492 United States v. Vite-Espinoza, 9 10 United States v. Vite-Espinoza, Nos. 02-5491/5492 et al. et al.
discredited drug source city rationale” was insufficient to would have allowed and caused a search of the defendants, create reasonable, articulable suspicion. United States v. which inevitably would have discovered Martinez-Rivera’s Grant, 920 F.2d 377, 388 (6th Cir. 1990). Even if “the gun. totality of the circumstances [created] a reasonable basis for suspecting that some roofers [in a town] might be illegal We do not here decide whether the police were justified in aliens,” it did not by itself create reasonable suspicion that a handcuffing the defendants and forcing them onto the ground particular Hispanic roofer was an illegal alien. United States or in taking the documents and billfold from Vite-Espinoza’s v. Alarcon-Gonzalez, 73 F.3d 289, 293 (10th Cir. 1996). To pocket. However, as both the defendants very shortly fairly quote these precedents is to refute the defendant’s thereafter admitted to being illegal aliens, permitting the INS argument. All of these precedents merely hold that some to take them into custody under 8 U.S.C. § 1357(a)(2) and an particular suspicious circumstances present here are by inventory search incident to such custodial arrest, the themselves insufficient to create reasonable suspicion; none defendants fail to demonstrate prejudice. Vite-Espinoza’s of them hold that these circumstances are irrelevant or must contention here that the continued questioning in which he be disregarded; many of them hold that they are valid factors admitted his illegal status only occurred because of the in a determination of reasonable suspicion. documents that had been taken from his person illegally is without support in the record and rebutted by the facts that all We hold that the combination of the close factual persons present in the backyard voluntarily admitted that they resemblance to Bohannon and the additional suspicious were illegal aliens and that the officers had sufficient circumstances, in particular the defendants’ presence without reasonable suspicion to question him prior to his search. apparent lawful purpose outside the facility and their Equally meritless is Vite-Espinoza’s contention that, as soon appearance, was sufficient to create reasonable, articulable as his frisk was concluded without finding any weapon, the suspicion. Therefore the police officers were permitted to police was under an obligation to instantly release him. stop and frisk the defendants and the handgun found on Although this frisk had arguably not incriminated him, neither Martinez-Rivera was admissible, as the court below correctly did it exculpate him. He was still under the same reasonable ruled. In addition, we note that the police discovered a suspicion of being an alien illegally in this country as he was handgun on the ground, near the defendants and their before the frisk, and the officers were still allowed to “ask the vehicles. The discovery of this gun was at best detainee a moderate number of questions to determine his contemporaneous with, and, more likely, subsequent to, the identity and to try to obtain information confirming or search of the defendants. Hence its discovery cannot justify dispelling the officer’s suspicions.” United States v. Butler, a reasonable suspicion on the part of the police officers 223 F.3d 368, 374 (6th Cir. 2000). This they did and Vite- conducting the search of the defendants. However, neither Espinoza gave them reason to take him into custody. can it be argued that the officers, had they not searched the defendants, would have missed the handgun in plain view. III Once having discovered the dropped handgun, the officers would most certainly have been justified in searching The district court held that Vite-Espinoza’s truck was not everybody present, lest there be another handgun. Hence, covered by the search warrant, but that the handgun in it even had the circumstances prior to the search been would inevitably have been discovered when Grant, a insufficient to justify the search, a discovery soon thereafter Tennessee Highway Patrol officer, impounded and Nos. 02-5491/5492 United States v. Vite-Espinoza, 11 12 United States v. Vite-Espinoza, Nos. 02-5491/5492 et al. et al.
inventoried the truck.1 Grant testified that he routinely Drinkard v. State, 584 S.W.2d 650, 653 (Tenn. 1979). The impounded and inventoried cars following arrests. Such guidelines of Drinkard “must be considered by law impoundments are authorized by Tennessee statute. “A enforcement officers on the scene.” State v. Lunsford, 655 police department may take into custody any motor vehicle S.W.2d 921, 923 (Tenn. 1983). “Our holding does not found abandoned, immobile, or unattended on public or mandate that an arrestee must be advised of all available private property.” Tenn. Code Ann. § 55-16-104. options to impoundment; such a per se rule would be “‘Unattended motor vehicle’ means any motor vehicle . . . unworkable because of changing conditions and that is unattended by reason of the arrest of the driver of such circumstances. However, the extent of the consultation with motor vehicle.” Tenn. Code Ann. § 55-16-103(6). Vite- an arrestee is a factor for the trial judge to consider in Espinoza raises several perfunctory, meritless challenges to determining whether the impoundment was reasonable and the application of the statute, including that the trooper’s necessary.” Ibid. (quoting Sanders v. State, 403 So. 2d 973, motive in impounding the car, to protect the lienholder’s 974 (Fla. 1981)). There is no recorded case holding interest, was not the motive contemplated by the statute, and impoundment reasonable and necessary under circumstances that the statute was inapplicable as Vite-Espinoza was merely similar to the case at bar, where the car is safely parked on taken into the custody of the INS, not arrested. private property, the arrestee is capable of making arrangements for the car, but is not even asked to do so by the Vite-Espinoza also raises an argument of somewhat greater arresting officer, and the impoundment is putatively made for merit under the Tennessee constitution. Tennessee case law the purpose of protecting a lienholder’s interest. The has restricted the of the unattended motor vehicle statute for Tennessee cases upholding impoundment typically involve evidence gathering purposes: the arrest of an intoxicated driver, incapable of making arrangements for the car, without a companion to take the car, [I]f the circumstances that bring the automobile to the and in a location where the car is likely to be a traffic obstacle attention of the police in the first place are such that the or to be stolen. See, e.g., State v. Howard, 645 S.W.2d 751, driver, even though arrested, is able to make his or her 751-53 (Tenn. 1982). own arrangements for the custody of the vehicle, or if the vehicle can be parked and locked without obstructing Evidence found during an inventory search incident to an traffic or endangering the public, the police should unreasonable impoundment is “the product of an permit the action to be taken rather than impound the car unreasonable search in violation of the Fourth Amendment against the will of the driver and then search it. Just and Article I, Section 7, Constitution of Tennessee” and cause to arrest the driver is not, alone, enough; there therefore inadmissible in Tennessee courts. Drinkard, 584 must also be reasonable cause to take his vehicle into S.W.2d at 654. The federal constitutional basis of Drinkard custody. has been overruled. In the absence of a showing that police acted in bad faith or for the sole purpose of investigation, evidence discovered during inventory search of arrestee’s car 1 is admissible. Colorado v. Bertine, 479 U.S. 367, 372-73 The United States here again attempts to argue that the search (1987). “[R]easonable police regulations relating to inventory warrant covers the trucks. But the district court ruled against the government on this question and the government, by no t appealing, procedures administered in good faith satisfy the Fourth waived the issue. Amendment, even though courts might as a matter of Nos. 02-5491/5492 United States v. Vite-Espinoza, 13 14 United States v. Vite-Espinoza, Nos. 02-5491/5492 et al. et al.
hindsight be able to devise equally reasonable rules requiring _____________________ a different procedure.” Id. at 374. But Drinkard was also based on the Tennessee constitution and state courts are the CONCURRENCE final authority on the meaning of state law. Hutchinson v. _____________________ Marshall, 744 F.2d 44, 46 (6th Cir. 1984). Therefore the Drinkard line of cases remains valid Tennessee law. See, CLAY, Circuit Judge, concurring. I concur in the outcome e.g., State v. Crutcher, 989 S.W.2d 295, 301 n.7 (Tenn. 1999) reached by the majority in these consolidated cases. I write (“An inventory search of a vehicle will be upheld, however, separately to speak on the manner in which the various law only when there is no reasonable alternative to seizure of the enforcement agencies arrived on the scene. Although not vehicle.” (citing Drinkard)). outcome determinative under the facts of this case, the conduct of the law enforcement officers in arriving on the We conclude that in circumstances such as the present, scene with guns drawn, ordering the occupants of the home to where there was no violation of the United States lie on the ground while the officers forced their knees into the Constitution, but there may have been a violation of a state backs of the occupants (including both Defendants), and constitution, the appropriate remedy is a civil action in state immediately handcuffing and questioning the individuals, all court, not evidentiary exclusion in federal court. The after the officers had blocked ingress and egress to the street exclusionary “rule is a judicially created remedy designed to on which the residence was located, was not reasonable safeguard Fourth Amendment rights generally through its because the conduct went beyond the “limited intrusions on deterrent effect.” United States v. Calandra, 414 U.S. 338, an individual’s personal security” required by the 348 (1974) (emphasis added). The rule does not protect circumstances. Michigan v. Summers, 452 U.S. 692, 698 against violations of state constitutional rights. See, e.g., (1981) (citing Terry v. Ohio, 392 U.S. 1 (1968)). United States v. Clegg, 509 F.2d 605, 614 (5th Cir. 1975) (rejecting as meritless contention that defendant’s Fourteenth A. Governing Fourth Amendment Jurisprudence Amendment rights were violated by introduction of evidence in federal court that would have been excluded by state court). The Fourth Amendment provides that “[t]he right of the Hence, the district court did not err when it admitted the gun, people to be secure in their persons, . . . against unreasonable which would inevitably have been found during the inventory searches and seizures, shall not be violated, and no Warrants search of Vite-Espinoza’s truck. That search did not violate shall issue, but upon probable cause . . . .” U.S. Const. amend the federal constitution, even if it may have been unlawful IV. Generally, under the Fourth Amendment, an official under Tennessee precedent. seizure of an individual must be supported by probable cause, even if no formal arrest is made. Dunaway v. New York, 442 IV U.S. 200, 208 (1979). As the Supreme Court noted in Terry v. Ohio, 392 U.S. 1, 16 (1968), For the foregoing reasons, we AFFIRM the district court’s judgment. [i]t is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime–“arrests” in traditional terminology. It must be recognized that Nos. 02-5491/5492 United States v. Vite-Espinoza, 15 16 United States v. Vite-Espinoza, Nos. 02-5491/5492 et al. et al.
whenever a police officer accosts an individual and v. Ohio, wherein the Court held that a police officer may restrains his freedom to walk away, he has “seized” that briefly stop an individual and conduct a patdown or “frisk” person. for weapons when the officer has a reasonable suspicion (something less than probable cause) to believe that criminal Thus, for purposes of the Fourth Amendment guarantee activity is afoot. See Summers, 452 U.S. at 698 (citing Terry, against unreasonable seizures, the “general rule [is that] every 392 U.S. at 16). The other relevant exception recognized by arrest, and every seizure having the essential attributes of a Summers is that “a warrant to search for contraband founded formal arrest, is unreasonable unless it is supported by on probable cause implicitly carries with it the limited probable cause.” Summers, 452 U.S. at 699-700; see also authority to detain the occupants of the premises while a United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“[A] proper search is conducted.” Id. (footnotes omitted) In a person is ‘seized’ within the meaning of the Fourth footnote to this holding, the Court opined that “[a]lthough Amendment only if, in view of all of the circumstances special circumstances, or possibly a prolonged detention, surrounding the incident, a reasonable person would have might lead to a different conclusion in an unusual case, we are believed that he was not free to leave.”). persuaded that this routine detention of residents of a house while it was being searched for contraband pursuant to a valid However, in Summers, the Supreme Court recognized that warrant is not such a case.” Id. at 705 n.21. In United States v. Fountain, 2 F.3d 656, 663 (6th Cir. 1993), overruled on some seizures significantly less intrusive than an arrest other grounds, Burchett v. Kiefer, 310 F.3d 937 (6th Cir. have withstood scrutiny under the reasonableness 2002), this Court extended the exception established in standard embodied in the Fourth Amendment. In these Summers regarding the detention of residents of a home being cases the intrusion on the citizen’s privacy “was so much search pursuant to a valid warrant, to the detention of visitors less severe” than that involved in a traditional arrest that to the home as well. “the opposing interests in crime prevention and detection and in the police officer’s safety” could support the Despite these exceptions, it must be remembered that the seizure as reasonable. exceptions are just that, and the “general rule [is that] every arrest, and every seizure having the essential attributes of a Id. at 697-98 (quoting Dunaway, 442 U.S. at 209). The formal arrest, is unreasonable unless it is supported by Supreme Court has therefore carved out “narrowly drawn” probable cause.” Summers, 452 U.S. at 699-700; Mendenhall, exceptions to the probable cause warrant requirement for 446 U.S. at 554 (finding that a seizure has occurred when a seizures not rising to the level of a formal arrest. United reasonable person under the circumstances “would not have States v. Sharpe, 470 U.S. 675, 689 (1985) (Marshall, J., believed that he was free to leave”). The essential attributes concurring) (quoting Pennsylvania v. Mimms, 434 U.S. 106, of a formal arrest, or stated differently, the point at which the 115(1977)); see also Douglas K. Yatter, et al., Warrantless detention ripens into a de facto arrest requiring probable Searches & Seizures, 88 GEO . L.J. 912, 912-13 (2000). cause, is decided on an individual basis. See Sharpe, 470 U.S. at 685 (“Much as a ‘bright line’ rule would be desirable, Two of the exceptions recognized by Summers are relevant in evaluating whether an investigative detention is to the matter at hand. Specifically, the Summers Court unreasonable, common sense and ordinary human experience recognized the “stop and frisk” exception as set forth in Terry must govern over rigid criteria.”); see also Gardenhire v. Nos. 02-5491/5492 United States v. Vite-Espinoza, 17 18 United States v. Vite-Espinoza, Nos. 02-5491/5492 et al. et al.
Schubert, 205 F.3d 303, 313 (6th Cir. 2000) (“When a whether the detention was reasonable. Rather, the “scope and detention rises to the level of a full-fledged arrest, . . . the nature of the restraints placed on an individual’s liberty” is Fourth Amendment demands that the seizure be supported by also considered. Yatter, supra at 920. As the Court noted in probable cause.”). Summers, “special circumstances” and a “prolonged detention,” might have led to a different result. See Summers, For purposes of determining whether a Terry stop has 452 at 705 n.21. exceeded its permissible scope, this Court has found that “‘[w]hen police actions go beyond checking out the B. Application of the Law to the Facts of Defendants’ suspicious circumstances that led to the original stop, the Motions to Suppress detention becomes an arrest that must be supported by probable cause.’” United States v. Butler, 223 F.3d 368, 374 As noted, the exceptions to the Fourth Amendment’s (6th Cir. 2000) (quoting United States v. Obasa, 15 F.3d 603, requirement of probable cause in this case are two. First, 607 (6th Cir. 1994)). This Court has also found that when under Summers, the reasonable detention exception as to the officers restrained an individual in a police cruiser after he occupants of a residence for which a valid search warrant has refused to consent to a search of a storage locker and truck, been issued applies. See Summers, 452 U.S. at 705. Second, the scope of the seizure went beyond the bounds of Terry and the “stop and frisk” exception under Terry also applies ripened it into a custodial arrest under the Fourth inasmuch as the officers not only detained Defendants, but Amendment. See United States v. Richardson, 949 F.2d 851, made a decision prior to the search that they would invoke 857-58 (6th Cir. 1991). Terry and conduct a “patdown” for weapons on the belief that drugs may be on the premises. However, when officers from For purposes of determining whether the scope of the several different law enforcement agencies, including the detention has exceeded the Summers exception that “a warrant INS, arrived on the scene with guns drawn, ordered the to search for contraband founded on probable cause implicitly occupants to lie on the ground, forced their knees into the carries with it the limited authority to detain the occupants of backs of the occupants (including both Defendants), and the premises while a proper search is conducted,” Summers, immediately handcuffed and questioned the individuals, all 452 U.S. at 705 (footnotes omitted), it would appear that so after the officers had blocked ingress and egress to the street long as the officers do not detain the occupants beyond the on which the residence was located, the officers’ actions point of the premises’ search, the detention has not exceeded exceeded the reasonableness of Summers and Terry. Instead, its permissible scope. This conclusion comports with the the officers’ actions in this regard were tantamount to a de legitimate government interests which the Summers Court facto arrest inasmuch as the seizure had all of the attributes of believed justified the detention, such as preventing flight in a formal arrest. See Mendenhall, 446 U.S. at 554 (“[A] the event that incriminating evidence is found, minimizing the person is ‘seized’ within the meaning of the Fourth risk of harm to the officers by allowing officers to exercise Amendment only if, in view of all of the circumstances unquestioned command of the situation, and facilitating the surrounding the incident, a reasonable person would have orderly completion of the search. See id. at 702-03 & 705 believed that he was not free to leave.”); Summers, 452 U.S. n.21 (noting that a “prolonged detention” might have led the at 698, 700 (noting that the “general rule [is that] every arrest, Court to reach a different result). However, it is not merely and every seizure having the essential attributes of a formal the length of the detention that is looked at in determining arrest, is unreasonable unless it is supported by probable Nos. 02-5491/5492 United States v. Vite-Espinoza, 19 20 United States v. Vite-Espinoza, Nos. 02-5491/5492 et al. et al.
cause” and that Terry authorizes “limited intrusions on an surrounding the incident.” Mendenhall, 446 U.S. at 554; see individual’s personal security”). also Summers, 452 U.S. at 698 (citing Terry, 392 U.S. at 16). The case law from this circuit and our sister circuits support It is true that the officers had made a decision prior to this conclusion. See United States v. Bohannon, 225 F.3d executing the warrant that any individuals found on the 615,619 (6th Cir. 2000) (Batchelder, J., dissenting) (“A police premises would be “detained” and frisked for weapons officer’s verbal command—if heeded—is often sufficient to because of the marijuana seeds found in the trash pull seize a person” for purposes of taking the matter out of the conducted earlier that day; however, when asked whether by bounds of the limited and brief nature of Terry stops) (citation the term “detained” the officers meant “arrested”or just and internal quotation marks omitted); Butler, 223 F.3d at 374 “monitored,” Secret Service Agent Monica Woods replied (“The brevity and limited nature of Terry-type stops have “monitored.” (J.A. at 143.) Specifically, the questioning of been repeatedly affirmed.”) (citing United States v. Obasa, 15 Agent Woods went as follows: F.3d 603, 607 (6th Cir. 1994); Richardson, 949 F.2d at 857- 58 (finding that the scope and nature of the detention Q: [P]rior to the execution of the warrant, was there a exceeded the bounds of Terry when officers restrained an meeting of the various agencies and individuals individual in a police cruiser after he refused to consent to a who’re part of the search warrant execution team? search of a storage locker and truck); Oliveira, 23 F.3d at 642, 645-46 (2d Cir. 1994) (finding that a Terry stop ripened into A: Yes. Everyone who was part of the search warrant a custodial arrest when six police cruisers surrounded the was involved in a briefing just prior to the search suspects, ordered them from their vehicles at gunpoint, warrant. handcuffed the suspects, and placed them in separate police cruisers); United States v. Anderson, 981 F.2d 1560, 1566 Q: Had the issue of whether or not people who were on (10th Cir. 1992) (finding that a Terry detention ripened into the property, if people on the property, were a custodial arrest when officers blocked suspect with cars and encountered, what if anything would be done with one officer approached the suspect with his gun drawn); those people during the execution of the warrant? United States v. Codd, 956 F.2d 1109, 1111 (11th Cir. 1992) (finding that the Terry stop resulted in a custodial arrest when A: All of those people would be patted down for suspect was seized, handcuffed, and held for two and one-half weapons and detained until we decided what steps to hours); United States v. Ricardo D., 912 F.2d 337, 340 (9th take next. Cir. 1990) (finding that a custodial arrest occurred when Q: Now, by detained, do you mean placed under arrest officer gripped the arm of a juvenile, patted him down, or just put to the side and monitored? ordered the juvenile not to run, and seated him in the back of a patrol car). A: Yes, monitored. Thus, although the officers had a legal basis to detain the (J.A. at 142-43 (emphasis added).) occupants of the residence, including Defendants, under Summers and Terry, the scope and nature of the detention was not reasonable “in view of all of the circumstances Nos. 02-5491/5492 United States v. Vite-Espinoza, 21 et al.
Indeed, under the agent’s own testimony, the scope and nature of the detention went well beyond that which had been agreed to prior to the time the search warrant was executed. Had the officers followed the plan attested to by Agent Woods—arriving on the scene, patting down the occupants of the home, and putting them to the side until the search had been completed, at which point the occupants may or may not have been arrested depending upon whether evidence of criminality had been found—the conclusion would be different inasmuch as the officers’ actions would have been within the reasonableness of Summers and Terry. C. Conclusion Although the law enforcement officials’ actions upon arriving on the scene were unreasonable, I concur in the outcome reached by the majority because, under the facts of this case, the evidence was otherwise discovered through lawful means.