Opinion
Criminal No. 01-163 (JRT/FLN)
November 13, 2001
Rachel Paulose, Office Of The United States Attorney, Minneapolis, Minnesota, for plaintiff.
Virginia Villa, Assistant Federal Public Defender, Federal defender's Office, Minneapolis, Minnesota, for defendant.
ORDER
Defendant Ira Earl Johnson was indicted for possession of a firearm. Defendant moved to suppress statements and evidence obtained as a result of a search and seizure that he claims was unlawful. In a Report and Recommendation dated July 26, 2001, United States Magistrate Judge Franklin L. Noel recommended denying defendant's motions. After the Report and Recommendation was issued, the defense located a key witness in the case, Willie Pearl Evans. The Magistrate Judge granted defendant's motion to hear Evans' testimony. After consideirng this new evidence, the Magistrate Judge issued a Supplemental Report and Recommendation on August 28, 2001, which reached the new conclusion that defendant's motions to suppress should be granted.
This matter is now before the Court on the government's objection to the Supplemental Report and Recommendation. The Court has conducted a de novo review of the government's objection pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court rejects the Supplemental Report and Recommendation, and denies defendant's motions to suppress.
BACKGROUND
On the morning of April 24, 2001, Hennepin County Deputy Sheriff Jason Engeldinger ("Engeldinger") was on duty with two other security officers at the Century Plaza building at Third Avenue and Twelfth Street in downtown Minneapolis. Engeldinger observed an interaction between defendant and a woman, who was later identified as Willie Pearl Evans ("Evans"). Engeldinger's and Evans' perceptions of this conversation are somewhat different. According to Engeldinger, the two people seemed to be having a fight. Evans appeared frightened and bent backwards over the hood of a Jeep, while defendant faced her, yelling obscenities only a few inches from her face. Defendant noticed a police car passing by, and he yelled obscenities and made obscene gestures at the car. Engeldinger suspected that an assault might have been in progress, so he approached the couple and asked to see defendant's identification.
Evans testified that she was not bent backwards over the car, but was simply leaning on the car while smoking a cigarette. She further stated that she and defendant were not having a fight, but they did speak loudly, and may have used profanities in the course of their normal conversation. She maintained, however, that defendant was not angry at her, and did not yell at her or assault her. Evans also stated that she never saw defendant make obscene gestures at a passing squad car.
Both Engeldinger and Evans testified that Engeldinger approached defendant, asked to speak with him, and asked to see his identification. According to Engeldinger, defendant appeared nervous, but produced his driver's license. After handing it to Engeldinger, defendant ran off. Engeldinger called for defendant to stop, and pursued him. Defendant did not stop, but tripped on a curb, and before he could continue fleeing, Engeldinger tackled him.
While on the ground, defendant's hands were tucked under his body. He refused to obey Engeldinger's instructions to slowly remove his hands, despite Engeldinger's threats to deploy pepper spray. Engeldinger sprayed defendant's face with pepper spray, and defendant removed his hands and allowed himself to be handcuffed. During this process, defendant made incriminating statements. Defendant had not been given Miranda warnings, but his statements were not in response to any questions from Engeldinger. After defendant was handcuffed, Engeldinger rolled defendant to his side and saw a gun lying beneath defendant.
ANALYSIS
In his Supplemental Report and Recommendation, the Magistrate Judge applied the Terry doctrine, which permits police officers to stop and question individuals if the officer has a reasonable suspicion that criminal activity is taking place. Terry v. Ohio, 392 U.S. 1, 21-24 (1968). After hearing Evans's testimony, the Magistrate Judge determined that Engeldinger did not have a reasonable suspicion that defendant was engaged in criminal activity, and therefore Engeldinger did not conduct a lawful "Terry stop." The Magistrate Judge thus held that all evidence stemming from the unlawful Terry stop — the gun and the incriminating statements — must be suppressed.
The government objects to these findings, arguing that the Magistrate Judge was wrong to apply the Terry standard of "reasonable suspicion" to the initial encounter between defendant and Engeldinger. The government argues that this initial encounter — the request for identification before defendant fled — was the type of consensual encounter that implicates no Fourth Amendment interest. See Florida v. Rodriguez, 469 U.S. 1, 5 (1984). Defendant argues that the encounter was not consensual, and that Engeldinger used a show of authority to force him into feeling that he must comply with the deputy's request.
I. Initial Encounter — Issue of Consent
The Eighth Circuit has described three types of communications between police officers and private citizens. See United States v. Poitier, 818 F.2d 679 (8th Cir. 1987). First, there are consensual encounters, which involve no coercion or restraint of liberty, and are therefore outside the scope of the Fourth Amendment. Id. at 682. Second, there are Terry stops, which are "brief, minimally intrusive seizures" that nevertheless are significant enough to invoke Fourth Amendment protection, and thus require a reasonable suspicion of criminal activity. Id. Third, there are full scale arrests, which are "highly intrusive," and must be based on probable cause. Id. The issue in this case is whether the encounter between defendant and Engeldinger falls into the first or second category. To make this determination, the Court must consider the totality of the circumstances. United States v. Todd, 963 F.2d 207, 210 (8th Cir. 1992); United States v. Washington, 957 F.2d 559, 562 (8th Cir. 1992).
"[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [and] by putting questions to him." Florida v. Royer, 460 U.S. 491, 497 (1983); Todd, 963 F.2d at 210 ("[T]he Fourth Amendment is not implicated when an officer asks a person questions, if the officer does not suggest the person must comply.") The Eighth Circuit's and U.S. Supreme Court's cases are replete with examples of encounters where a "seizure does not occur simply because a police officer approaches an individual and asks a few questions." Florida v. Bostick, 501 U.S. 429, 434 (1991).
In Poitier, Drug Enforcement Agency (DEA) agents suspected that the defendant was carrying drugs. They approached the defendant in an airport concourse, displayed their credentials, and asked permission to ask her some questions. Poitier, 818 F.2d at 681. She agreed, and an agent asked for her identification, and inquired about her travel plans. Id. After receiving inconsistent information from defendant's traveling companion, the DEA agents advised the defendant of her Miranda rights and arrested her. Id. The Eighth Circuit reversed the trial court's ruling that the initial contact was a Terry stop requiring reasonable suspicion. Id. Instead, the court held that the encounter was consensual, stating that "more is required to turn consensual questioning into a Terry-type investigative stop than the display of badges, the request for information, and the suggestion that the parties move to a nearby area out of the flow of traffic." Id. at 682.
In Todd, a DEA agent noticed the defendant acting suspiciously in a manner indicative of drug couriers. Todd, 963 F.2d at 209. The agent approached defendant, and asked whether he could speak with him. Id. The defendant agreed, showed the agent his ticket, answered questions about his identification and travel plans, and agreed to a search of his suitcases. Id. The agent noticed a paper sack in defendant's pocket, and asked to search the sack. Id. Defendant agreed, but then tried to run away, becoming "hysterical" when agents actually tried to search the sack. Id. Only at this point did the DEA agent handcuff defendant, advise him of his rights, and said that he could no longer leave. Id. The court determined that there was no evidence of officers threatening or coercing the defendant, and held that the encounter was consensual and "did not escalate to a [Terry stop] implicating the Fourth Amendment." Id. at 210.
In United States v. McKines, plainclothes police officers suspected that defendant might be a drug courier. United States v. McKines, 933 F.2d 1412, 1414 (8th Cir. 1991) (en banc). An agent approached defendant, showed his badge, identified himself as a police officer, and asked permission to speak with defendant. Id. The defendant agreed, and consented to the agent's request to see his plane tickets and identification. Id. Defendant then allowed a search of his luggage, which turned up nothing, and also gave permission for a second search when the agent returned several minutes later. Id.
Defendant was arrested after the agent discovered drugs in the second search. Id. at 1415. The court held that the encounter between defendant and the officers was consensual, because none of the circumstances involved in the questioning were "so intimidating, threatening or coercive that a reasonable person would not have believed himself free to leave." Id. at 1419. See also Rodriguez, 469 U.S. at 5-6 (holding that a stop nearly identical to those in Poiter, Todd, and McKines was "clearly the sort of consensual encounter that implicates no Fourth Amendment interest").
Cases like these are evaluated under the standard announced in United States v. Mendenhall, 446 U.S. 544 (1980) (opinion of Stewart, J). Under that test, "a person has been `seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 554. Examples of such non-consensual circumstances include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Id.
Although this standard was originally the view of only two justices, the Court has since "embraced" the Mendenhall test. See Michigan v. Chesternut, 486 U.S. 567, 573 (1988); INS v. Delgado, 466 U.S. 210, 215 (1984).
None of these factors is determinative, and "what constitutes a restraint on liberty prompting a person to conclude that he is not free to `leave' will vary . . . with the particular police conduct at issue [and] with the setting in which the conduct occurs." Michigan v. Chesternut, 486 U.S. 567, 573 (1988). See also McKines, 933 F.2d at 1419 (stating that reference to factors relied upon in one case may not decide another case).
In the present case, Engeldinger was in uniform, and was accompanied by two other security officers when he approached defendant. There is no evidence, however, that Engeldinger's conduct was coercive, that he physically touched defendant, or that he indicated in any way that defendant must comply with his requests. The only testimony in this case is from Engeldinger and Evans, and they appear to agree on this issue. Both Engeldinger and Evans testified that the deputy asked defendant for his identification. Evans, who appeared as a witness for defendant, did not suggest that Engeldinger acted in a coercive manner toward defendant. The only suggestions that Engeldinger acted improperly are raised by defense counsel in defendant's memorandum, but there is no evidence at all to support the assertions that Engeldinger's "tone and authority . . . demanded compliance." See Defendant's Response to Objections at 3.
Q (Defense Counsel): And you told him come over here, I want to talk to you, is that right?
A (Engeldinger): I asked him to come over and talk to me.
Q: At that point, you asked him for his identification?
A: Yes, ma'am.
July 18, 2001 Motion Hearing Trans. at 18 (emphasis added).
Evans testified that Engeldinger made a request, not any type of demand:
[Deputy Engeldinger] said, `May I speak with you? Can I see some ID?' And [defendant] said `Sure.' . . . [Deputy Engeldinger] stood like a couple feet back, and he requested identification from [defendant].
August 22, 2001 Evidentiary Hearing Trans. at 8 (emphasis added).
For these reasons, the Court determines as a matter of law that the encounter between defendant and Engeldinger was consensual. Therefore, the encounter does not implicate the Fourth Amendment. The Magistrate Judge was incorrect in applying the Terry standard to these circumstances. Engeldinger did not need reasonable suspicion to approach defendant or to ask for his identification.
II. Detention, Statements, and Seizure of Gun
Although the initial consensual encounter between defendant and Engeldinger does not implicate the Fourth Amendment, the deputy's chase, apprehension, and arrest of defendant must still survive constitutional scrutiny in order for defendant's statements and the gun to be admissible. The Court determines that none of these circumstances violated the Constitution. Accordingly, the gun and defendant's statements made while on the ground are admissible evidence.
A. Chase and Detention
The consensual nature of the initial encounter between Engeldinger and defendant terminated when defendant ran away, leaving his driver's license with the deputy. Nervous, evasive behavior is one pertinent factor in determining reasonable suspicion, while "headlong flight . . . is certainly suggestive of [wrongdoing]." Illinois v. Wardlow, 528 U.S. 119, 124 (2000). When speaking with Engeldinger, defendant appeared nervous. His unprovoked flight was more than a "mere refusal to cooperate," and, combined with the totality of the circumstances, was sufficient to give Engeldinger reasonable suspicion to detain him for a Terry stop. See id. at 124-25. Engeldinger tackled and handcuffed defendant to effectuate the Terry stop. Although officers engaged in a Terry stop must "employ the least intrusive means of detention reasonably necessary to achieve the Terry stop's purposes, . . . numerous cases have held that a police officer's use of handcuffs can be a reasonable precaution during a Terry stop." United States v. Miller, 974 F.2d 953, 957 (8th Cir. 1992) (citing cases from various circuits that have held handcuffing to be a reasonable precaution). See also United States v. Navarrete-Barron, 192 F.3d 786, 791 (8th Cir. 1999) (holding that handcuffing suspect and placing him in a police car while officers searched suspect's truck for drugs did not exceed the limits of a Terry stop); Sheridan v. City of Des Moines, 2001 WL 901267 at *4 (S.D.Iowa 2001) (holding that officers exercised "reasonable precaution" by handcuffing a counterfeiting suspect for a "relatively brief period of time" to ensure officer and public safety); United States v. Purry, 545 F.2d 217, 220 (D.C. Cir. 1976) (holding that handcuffing a bank robbery suspect was reasonable "as a corollary of the lawful stop" to obtain information from suspect).
In United States v. Jones, 759 F.2d 633 (8th Cir. 1984), the Eighth Circuit held that police actions do "not elevate an investigative stop into an arrest if the police action is reasonable under the circumstances." Id. at 339-40. To determine whether or not Engeldinger's handcuffing of defendant was reasonable, the Court looks to several factors identified in Jones: (1) the number of officers and police cars involved; (2) the nature of the crime and whether there is reason to believe the suspect might be armed; (3) the strength of the officers' articulable, objective suspicions; (4) the erratic behavior or suspicious movements by the persons under observation; and (5) the need for immediate action by the officers and lack of opportunity for them to have made the stop in less threatening circumstances. Id.; Sheridan, 2001 WL 901267 at *4.
The Court finds that Engeldinger's use of handcuffs was reasonable and not excessive under the circumstances. While defendant was on the ground, he refused to remove his hands from underneath his body, even when Engeldinger threatened him with pepper spray. These circumstances were sufficient to give Engeldinger reason to believe that defendant was armed. See Sheridan, 2001 WL 901267 at *4. Even after being sprayed, defendant removed only one hand, which led to another warning, another refusal by defendant to remove his hand, and another spraying. This situation, combined with defendant's nervous behavior and sudden flight, reasonably led Engeldinger to believe that no less forceful manner would be sufficient to detain the defendant. See Jones, 759 F.2d at 639-40. Therefore, the Court determines that Engeldinger's chase and detention of defendant did not stray from the bounds of a proper Terry stop.
B. Defendant's Statements
Because the initial encounter and subsequent detention of defendant were proper, defendant's statements cannot be suppressed as fruit of the poisonous tree, as the Magistrate Judge had determined in the Supplemental Report and Recommendation. Defendant claims that because Engeldinger did not administer the Miranda warnings, his statements were not voluntary, and admitting them would violate his Fifth and Sixth Amendment rights. The Magistrate Judge's first Report and Recommendation determined that defendant's statements were spontaneous utterances, not made in response to any interrogation. The Magistrate Judge concluded that there is no evidence of coercion in this case, and that the "facts clearly establish that [defendant's] statements were voluntary." Because fruit of the poisonous tree is no longer an issue here, the Court hereby adopts Part II.D of the Magistrate Judge's Report and Recommendation dated July 26, 2001, and incorporates it by reference herein.
C. The Gun
Having lawfully pursued and handcuffed defendant, Engeldinger discovered a gun underneath defendant's body. Because a Terry stop is premised on the need to ensure officer and public safety, Engeldinger was entitled to search defendant for any weapons that could be used to harm him or the public. Terry, 392 U.S. at 30. There is no evidence that Engeldinger even went so far as to conduct such a search. Rather, as part of the lawful Terry detention, Engeldinger rolled defendant onto his side, only to discover a pistol sitting in plain view on the ground beneath defendant. Having discovered this weapon, Engeldinger properly seized it as part of the Terry stop. Furthermore, the fact that the gun was in plain view also permits the seizure. An item in plain view may be seized when "a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object." Horton v. California, 496 U.S. 128, 135 (1990); Harris v. United States, 390 U.S. 234, 236 (1968). Here, Engeldinger did not violate the Fourth Amendment by chasing and detaining defendant, and his discovery of the gun was clearly inadvertent. See Horton, 496 U.S. at 127-28 (describing the requirements of the plain view doctrine). Therefore, Engeldinger's seizure of the gun did not violate the Fourth Amendment, and the gun is admissible into evidence.
D. Probable Cause for Arrest
"Probable cause exists if the facts and circumstances within the arresting officer's knowledge were sufficient to warrant a prudent person's belief that the suspect had committed or was committing an offense." United States v. Magness, 69 F.3d 872, 874 (8th Cir. 1995). See also Beck v. Ohio, 379 U.S. 89, 91 (1964). Upon discovering the gun, for which defendant had no permit, Engeldinger clearly had reason to believe that defendant was violating Minnesota's prohibition on possession of concealed weapons without a permit. See Minn. Stat. § 624.714 (2001). See also Rep. Rec. at 6-7. Therefore, Engeldinger had probable cause to arrest defendant.
ORDER
Based on the foregoing and all the records, files, and proceedings herein, the Court AFFIRMS plaintiff's objections [Docket No. 33] and REJECTS the Magistrate Judge's Supplemental Report and Recommendation [Docket No. 30]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's Motion to Suppress Statements, Admissions, and Answers [Docket No. 14] is DENIED.
2. Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Docket No. 15] is DENIED.