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United States District Court, D. OregonOct 19, 2000
CR No. 00-221-FR (D. Or. Oct. 19, 2000)

CR No. 00-221-FR

October 19, 2000

Kristine Olson, United States Attorney and Fredric N. Weinhouse, Assistant United States Attorney, Portland, Oregon, Attorneys for Plaintiff.

Steven T. Wax, Federal Public Defender and Paul Papak, Assistant Federal Public Defender, Portland, Oregon, Attorneys for Defendant.


The matters before the court are 1) defendant's motion to dismiss indictment (#10) and 2) defendant's motion to suppress (#11).


The defendant, Craig Robert Wacker, is charged in a one-count indictment with the crime of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Defendant's Motion to Dismiss Indictment

Defendant Wacker moves the court to dismiss the indictment on the grounds that the statute under which he is charged, 18 U.S.C. § 922(g)(1), is unconstitutional on its face and as applied.

Based upon precedent in the United States Court of Appeals for the Ninth Circuit, defendant Wacker's motion to dismiss the charge under 18 U.S.C. § 922(g)(1) is denied. See United States v. Sweet, CR No. 00-99-PA, Opinion filed September 7, 2000, p. 13.

Defendant's Motion to Suppress FACTS

On March 27, 1999, at approximately 6:28 p.m. in Prineville, Oregon, law enforcement authorities received a 911 call from the owner of a residence at 945 West 6th Street indicating that an unknown male had walked up her driveway, looked in her backyard, and knocked on her front door. The caller reported that the individual walked toward the Town Pump when she didn't answer the door. A description of the individual was broadcast. Officer Andy McCool contacted defendant Wacker who was in the area of the Town Pump and who fit the description provided by the caller.

As Officer McCool was stopping his police vehicle, defendant Wacker walked toward him. Officer McCool stepped out of his vehicle and made contact with defendant Wacker in the parking lot of the Town Pump. Defendant Wacker told Officer McCool that he had been in the yard of a nearby residence. He further explained that he wanted to inquire if an arc welder in the backyard of the residence was for sale. Officer McCool testified that defendant Wacker had appeared very nervous, and was placing his hands in and out of his coat pockets despite being told by Officer McCool to keep his hands out of his coat pockets. Sgt. Calhoun arrived a few minutes later to provide assistance. Sgt. Calhoun testified that defendant Wacker appeared nervous and jittery, and he talked very fast. Sergeant Dave Calhoun testified that based upon his training and experience, he suspected that defendant Wacker was under the influence of methamphetamine.

Defendant Wacker provided Officer McCool with some form of identification, and Officer McCool returned to his police car to run a check on defendant Wacker. While Officer McCool was in the police car, Sergeant Calhoun observed a knife in the back pocket of defendant Wacker's pants. He asked defendant Wacker for permission to remove the knife. Sergeant Calhoun received permission from defendant Wacker to remove the knife and to check defendant Wacker's pants pockets. As Sergeant Calhoun was checking the pants pockets of defendant Wacker, Officer McCool returned and advised defendant Wacker that he was free to leave pending a further interview with the individual who had placed the 911 call. The officers returned the knife to defendant Wacker. He left the scene.

Prior to Officer McCool leaving to interview the 911 caller, Sergeant Calhoun asked Officer McCool where defendant Wacker was located when Officer McCool first saw him. Officer McCool indicated that defendant Wacker was in the back corner of the Town Pump. Officer McCool left to interview the 911 caller, and Sergeant Calhoun went to the back corner of the Town Pump where Officer McCool indicated that he had first seen defendant Wacker. Sergeant Calhoun found a syringe at the back corner of the Town Pump which appeared to him to be fresh.

Officer McCool went to the nearby residence and spoke to the homeowner who made the 911 call. After talking to the homeowner, Officer McCool concluded that he had probable cause to arrest defendant Wacker for the crime of criminal trespass.

Officer McCool initiated a further search for defendant Wacker and recontacted him about ten minutes later a short distance from the Town Pump. Officer McCool told defendant Wacker that he was not free to leave and advised him of his Miranda rights. Officer McCool testified that defendant Wacker had appeared nervous and jumpy and had continued to place his hands in his jacket pockets after Officer McCool told him to keep his hands out of his jacket pockets. Officer McCool testified that defendant Wacker continued to move away from him, and that he believed defendant Wacker would flee. As Officer McCool spoke to defendant Wacker, Sergeant Calhoun approached from behind defendant Wacker. Sergeant Calhoun testified that as he approached him, defendant Wacker was backing away from Officer McCool, and that he believed defendant Wacker represented a danger to them.

The officers handcuffed defendant Wacker. Officer McCool patted down his external clothing. He felt a bulge in the jacket that defendant Wacker was wearing. Officer McCool located a small box of ammunition in defendant Wacker's jacket as he continued the pat down. Officer McCool could still feel a considerable bulge in defendant Wacker's jacket. Defendant Wacker agreed that Officer McCool could further examine the jacket, stating that the jacket did not belong to him. Officer McCool then located a bag in the jacket which contained a loaded gun, an extra magazine for the gun, a screwdriver, a crescent wrench, and a syringe.

Defendant Wacker was originally charged in state court with the crimes of attempted burglary, criminal trespass, various firearm-related offenses, and the possession of a controlled substance. A motion to suppress evidence was denied in the state court action. In the "Journal Entry of Hearing on Omnibus Motion" denying the motion to suppress, the state court judge made the following conclusions:

1. The police officers did not tell the defendant, or put in the main part of their report, that the defendant was under arrest for attempted burglary in the first degree.
2. At the time of the defendant's arrest, the officers had insufficient information or evidence that would constitute a substantial step toward the commission of the crime of Attempted Burglary In the First Degree.
3. The Officers had probable cause for Criminal Trespass in the Second Degree, but did not have probable cause for Attempted Burglary In The First Degree.
4. The State did not meet its burden of proof regarding voluntary consent to the search of the defendant's coat pocket.
5. An officers safety pat down search was permissible and justified, based on the findings of fact that the court made on the record.

Exhibit A to Government's Response to Defendant's Motion to Suppress Evidence, pp. 1-2.

At the suppression hearing in state court, the Crook County District Attorney stipulated that Officer McCool and Sergeant Calhoun could not make a probable cause arrest for criminal trespass in the second degree because O.R.S. 133.310(1)(b) does not permit a police officer to make an arrest without a warrant for criminal trespass if the crime did not occur in his or her presence.


Defendant Craig Wacker moves the court for an order suppressing all evidence seized, including incriminating statements made by him. Defendant Wacker contends that the second pat down search was improper because the initial pat down search indicated that he was not armed.

The government contends that the stop and frisk of defendant Wacker can be justified on the grounds of reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 22-23 (1968) or on the grounds of consent to search.


The issue before the court is whether the search of defendant Wacker was properly conducted as a "stop and frisk" under Terry v Ohio or pursuant to the consent of defendant Wacker.

Defendant Wacker contends that the search and seizure cannot be justified as an appropriate "stop and frisk" under Terry v. Ohio. Defendant Wacker argues that Sergeant Calhoun conducted a pat down search after observing a knife in his back pocket upon initial contact and determined that he was not otherwise armed. Defendant Wacker contends that it was improper and unlawful when, a few minutes later, he was subjected to a second and more invasive pat down search.

The government contends that the pat down search was justified based upon Sergeant Calhoun's reasonable suspicion that defendant Wacker had committed a crime and a reasonable fear for the safety of the officers. The government contends that Officer McCool and Sergeant Calhoun had a good faith and reasonable belief that defendant Wacker was armed, and they were therefore justified in performing a frisk of his clothing. Once the bulge in defendant Wacker's coat was located, the government argues that it was only prudent on the part of the officers to reach in and to take the loaded weapon from defendant Wacker.

If a police officer has a reasonable suspicion to believe that an individual is engaged in some criminal activity, the officer may conduct an investigatory stop. Terry v. Ohio, 392 U.S. 1 (1968). A "pat down" search may be initiated based upon a reasonable fear for safety. United States v. Alvarez, 899 F.2d 833, 839 (9th Cir. 1990), cert. denied, 498 U.S. 1024 (1991).

Defendant Wacker does not contest the fact that the officers had a reasonable suspicion to make their initial stop and to conduct the initial pat down of his pants pockets. The officers had a report of suspicious activity from a 911 caller. Defendant Wacker fit the description of the individual complained about, and he was in the area described. The uncontradicted testimony at the hearing was that defendant Wacker walked up to the police officer prior to the initial stop. Sergeant Calhoun saw a knife in the back pants pocket of defendant Wacker. Sergeant Calhoun removed the knife and patted down the pants pockets of defendant Wacker after receiving consent to do so from defendant Wacker. As defendant Wacker concedes, the initial investigatory stop was reasonable.

Defendant Wacker contends, however, that the officers had no information of significance to support the second stop or to undertake a more intrusive pat down search. The court finds that the officers acted reasonably in deciding to contact defendant Wacker again after finding the syringe at the corner of the building where defendant Wacker was standing when the officers first saw him and after interviewing the 911 caller.

Based upon defendant Wacker's behavior at the time of the stop, a reasonably prudent police officer would believe that he could be in danger. Defendant Wacker repeatedly placed his hands in his coat pockets despite the officers repeated warnings not to do so. Sergeant Calhoun had a reasonable belief that defendant Wacker was under the influence of methamphetamine based upon his observations of defendant Wacker and his discovery of the syringe in the area where defendant Wacker had been first seen by Officer McCool. In addition, the police officers knew that defendant Wacker had a knife from their earlier contact with him. The officers were justified in handcuffing defendant Wacker and in conducting a pat down search of his coat pockets. Once the officers felt hard bulges, they were justified in reaching into defendant Wacker's pockets and seizing the ammunition and the loaded gun.

The police officers were not limited in the search conducted at the second stop by what took place at the first stop. Sergeant Calhoun did not determine that defendant Wacker was not armed during the initial stop. Defendant Wacker left the presence of the police officers for a significant period of time between the first and the second stops. A police officer is not required to rely upon an earlier pat down search when the suspect leaves the scene of the initial pat down search and is subsequently recontacted by police officers.

This court concludes that the stop and pat down search of defendant Wacker was supported by the facts known to the police officers and was permissible under the law. The court finds that it is not necessary to address the government's contention that the second pat down search was consentual.


The defendant's motion to dismiss indictment (#10) and motion to suppress (#11) are denied.


IT IS HEREBY ORDERED that the defendant's motion to dismiss indictment (#10) and motion to suppress (#11) are DENIED.

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