Opinion
Case No. 2:04-CR-370 DB.
January 5, 2005
REPORT RECOMMENDATION
Defendant filed a Motion to Suppress Evidence (Dkt. # 9) seeking suppression of all evidence discovered as a result of the seizure of his person on May 11, 2004. The case was referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B).
On September 3, 2004, the Magistrate Judge held a hearing on the motion. Earl Xaiz appeared for Defendant, and Eric Petersen appeared for the Government. Following the hearing, the parties submitted additional briefing which was complete on October 29, 2004. Because the briefing appeared to raise issues not addressed during the evidentiary hearing, the Magistrate Judge held a further hearing on November 19, 2004. Defendant again was represented by Mr. Xaiz, and the Government was represented by Robert Steed. At the second hearing, the Magistrate Judge gave the parties the opportunity for further briefing. However, both parties stated that they were satisfied with the arguments made in their earlier memoranda. (Tr. 15.) The transcript of the second hearing was filed on December 6, 2004.
I. FACTS
A. Evidentiary Hearing of September 3, 2004On May 11, 2004 at 4:00 p.m., Officer Shawn Carter of the St. George Police Department was dispatched to the Millcreek Cottages in St. George, Utah. (Tr. 5-7.) Officer Carter testified that the call "initially went out as a suspicious person, possible suicide. They mentioned that it looked like there was a knife in the lap of the person in the car as well as possible drug paraphernalia." (Tr. 6.) This information was provided by an anonymous caller. (Tr. 10.)
Just moments after Officer Carter got to the location, Deputy Lee of the Washington County's Sheriff's Office arrived as well. (Tr. 7.) The officers found Defendant seated in a reclined position in the driver's seat of his small, green passenger car with the window down on the driver's side. (Tr. 7.) The officers approached the car from opposite sides with Officer Carter on the driver's side. Officer Carter yelled "really loudly," asking Defendant if he could hear him and if he was okay. (Tr. 7-8.) However, Defendant did not respond. (Tr. 8.) The officers then moved closer to the car with Officer Carter continuing to yell loudly. Officer Carter began banging or pounding on the side of the car near the window. (Tr. 8, 13.)
Officer Carter testified that he was concerned because Defendant did not look well, "looked really pale, a lot of sweat all over his body." (Tr. 8.) Since Officer Carter had been yelling very loudly, and Defendant had not responded, the officers thought something might be wrong with him. (Tr. 8.)
Officer Carter testified that as he continued yelling and banging on the car, Defendant "kind of jerked awake." (Tr. 8.) Defendant's eyes came open, and he apparently noticed the officers' presence for the first time. (Tr. 8.) Officer Carter testified that Defendant "began acting very confused, making just really jerky, sudden movements with his hand and then with his whole body, just acting pretty unnaturally." (Tr. 8-9.)
Deputy Lee stated that Officer Carter "shook" the car, and Defendant sat up in a "kind of frantic" state. (Tr. 25.)
Officer Carter asked Defendant if he was okay, and if he could step out of the car so they could talk. According to Officer Carter, Defendant said that was "fine." (Tr. 9.) A third officer, Officer Tate, arrived about the time that Officer Carter asked Defendant to exit the vehicle. (Tr. 11, 12-13.)
As Defendant began standing up, Deputy Lee saw a small handgun fall from Defendant's pants, and land on the floorboard of the car. Deputy Lee yelled, "Gun, gun." The officers then drew their weapons and secured Defendant on the ground in handcuffs. (Tr. 9, 27, 29-30.)
On cross-examination, Officer Carter estimated that a "couple of minutes" passed between the time the officers began trying to get Defendant's attention and the time he actually awoke. (Tr. 12.) Officer Carter further testified that prior to Defendant's awakening, he believed that Defendant was not conscious. (Tr. 14.) Officer Carter could not remember Defendant's exact response when he asked him if he was okay-just that he said something to indicate that he was alive. (Tr. 15.) Defendant did not indicate that he was suffering from any specific discomfort, or problem, or complain that anything was wrong with him. (Tr. 15.) Prior to asking Defendant to get out of the vehicle, Officer Carter did not observe any knife, drug paraphernalia, or the gun. (Tr. 15-16, 20.) Likewise, he did not detect the odor of alcohol, or see any alcohol, drugs, pills, or medication. (Tr. 20.)
Officer Carter testified that the reason he asked Defendant to get out of the car was to assess Defendant's condition. (Tr. 17, 19.) If Defendant had declined to get out of the car, Officer Carter would not have allowed him to drive away. (Tr. 16.) Officer Carter stated that he was an EMT and had dealt with medical problems before. He stated that Defendant had acted strangely, and did not appear to be healthy. (Tr. 16-17.) Officer Carter believed that Defendant might have been under the influence of alcohol or drugs. (Tr. 18.) Further, because the call had mentioned a possible suicide, Officer Carter was concerned that Defendant might have taken some drugs in a suicide attempt. (Tr. 18-19.) Officer Carter testified that he would not have felt safe allowing Defendant to drive off until he was able to further assess his condition. That is why Officer Carter wanted Defendant to get out of the car, stand up, walk, talk, and see if he could function normally and appropriately for driving a car. (Tr. 19.)
Deputy Lee also testified concerning Defendant's condition, stating that he was "just sweaty, just looked to be something wrong with him medically." (Tr. 25.) Deputy Lee further testified concerning his assessment of the way Defendant responded to Officer Carter's questions: "There was something definitely not right. He was, either had a medical problem or a drug problem, something to that effect." (Tr. 26.)
B. Stipulated Facts from the Evidentiary Hearing of November 19, 2004
At the second evidentiary hearing, the parties stipulated to the following facts: After the gun dropped to the floor of Defendant's car, the officers drew their weapons, and ordered Defendant to drop to his knees and place his hands behind his head. He was then handcuffed and transported to the Purgatory Correctional Facility. At some point after Defendant was handcuffed, he consented to a search of his car which revealed controlled substances, a scale, and a knife. Also, dispatch confirmed at that time that Defendant was a felon. While in transit to Purgatory, Defendant admitted to the use of controlled substances and to having a felony record. The following day, after Defendant was given a Miranda warning, he consented to giving a blood sample which tested positive for methamphetamine. (Tr. 11-15.)
II. DISCUSSION
The Tenth Circuit has explained that there are three categories of police-citizen encounters: (1) Voluntary cooperation by a citizen in response to non-coercive questioning; (2) a Terry stop, involving a brief, non-intrusive detention and frisk for weapons where the officer has reasonable suspicion that the defendant has committed, or is about to commit a crime; and (3) an arrest which must be supported by probable cause. United States v. Johnson, 364 F.3d 1185, 1188 (10th Cir. 2004); United States v. Madrid, 30 F.3d 1269, 1275 (10th Cir. 1994); United States v. Laboy, 979 F.2d 795, 798 (10th Cir. 1992).
Terry v. Ohio, 392 U.S. 1 (1968).
Defendant argues that at the time the police ordered him to get out of the car, they did not have reasonable suspicion that a crime was being, or about to be committed, or a valid public safety concern. Thus, the order to exit the car constituted an unlawful seizure of Defendant's person under the Fourth Amendment. In the alternative, if the police did have reasonable suspicion to ask Defendant to step out of the car, a de facto arrest occurred when the officers drew their guns and ordered Defendant to the ground and handcuffed him. Defendant argues that the arrest was unsupported by probable cause, because the incriminating nature of the gun was not apparent. Further, the officers' actions exceeded what was necessary to secure their safety. Consequently, Defendant was unconstitutionally seized, and the subsequent search of his person and vehicle violated the Fourth Amendment because it resulted from the illegal seizure. Defendant seeks to suppress all statements made before and after the allegedly unlawful seizure. He further contends that the subsequent consent to submit to a blood test was not valid because it was obtained as a fruit of the prior illegalities.
A. Seizure
"The Fourth Amendment protects citizens from unreasonable searches and seizures by government actors." United States v. Sanchez, 89 F.3d 715, 717 (10th Cir. 1996) (citing Burdeau v. McDowell, 256 U.S. 465, 475 (1921)). However, not every interaction between a police officer and a citizen involves a seizure. Florida v. Bostick, 501 U.S. 429, 434 (1991); Sanchez, 89 F.3d at 717. "A seizure occurs only when a police officer, 'by means of physical force or show of authority . . . in some way restrain[s] the liberty of a citizen.'" Sanchez, 89 F.3d at 717 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)). The test is an objective one: If a reasonable innocent person would feel free to leave, the encounter is consensual and need not be supported by reasonable suspicion of criminal activity. Sanchez, 89 F.3d at 717-18;Laboy, 979 F.2d at 799. The subjective intentions of either the officer or the defendant are irrelevant to the Fourth Amendment analysis. Sanchez, 89 F.3d at 718; Madrid, 30 F.3d at 1276.
Courts have identified several non-exclusive factors that might lead a reasonable person to believe that he is not free to disregard the orders of police officers:
the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged retention of a person's personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed space; and absence of other members of the public.Sanchez, 89 F.3d at 718; Laboy, 979 F.2d at 798-99. Several of these factors are present in the instant case, including the fact that three officers were present; they were surrounding Defendant; Officer Carter had been yelling in a loud voice, and pounding on, or shaking Defendant's car; and no other members of the public were present.
The government argues that no seizure occurred in this case prior to Defendant's arrest, because he consented to the officers' request to exit the vehicle. However, the court agrees with Defendant that a reasonable person would not have felt free to leave when he awoke to find his car surrounded by three officers who were yelling at him, and pounding on, or shaking, his car. Thus, the court concludes that a seizure occurred at the time the officers ordered Defendant to exit the car, which subsequently escalated to a full-scale arrest with the discovery of the gun.
B. Reasonableness of the Initial Seizure.
The Fourth Amendment does not protect against all seizures, but only unreasonable seizures. United States v. Sharpe, 470 U.S. 675, 682 (1985); United States v. King, 990 F.2d 1552, 1556-57 (10th Cir. 1993). Prior to Terry v. Ohio, 392 U.S. 1 (1968), Fourth Amendment seizures of the person were analyzed in terms of arrest and were reasonable only if supported by probable cause. King, 990 F.2d at 1557. In Terry, the Supreme Court recognized that "the Fourth Amendment governs 'seizures' of the person . . . [other than] arrests," "and created a 'narrowly drawn' exception to the probable cause requirement for lesser government intrusions into an individual's liberty." King, 990 F.2d at 1557 (quoting Terry, 392 U.S. at 16, 27) (citations omitted). See Madrid, 30 F.3d at 1277 (noting that Terry was the first case to recognize that the Fourth Amendment governs seizures of the person other than arrest).
In Terry, the Supreme Court held that when an officer has reasonable suspicion to believe that "criminal activity may be afoot, and that the persons with whom he is dealing may be armed and presently dangerous," he may, for the protection of himself and others, conduct a carefully limited search of the person's outer clothing to determine if he has a weapon that might be used to assault him. Terry, 392 U.S. at 30. Thus, Terry has come to stand for two propositions: (1) An investigative detention or "stop" in which an officer, for the purpose of investigation, may briefly detain a person on less than probable cause; and (2) a protective search in which the officer may conduct a limited search or "frisk" for weapons for his own protection. King, 990 F.2d at 1557; see Adams v. Williams, 407 U.S. 143, 145-46 (1972); United States v. Sokolow, 490 U.S. 1, 7 (1989).
In determining whether an investigative detention or protective search is reasonable under the Fourth Amendment, the court conducts a two-pronged inquiry. First, "the officer's action must be 'justified at its inception.'" King, 990 F.2d at 1557 (quoting Terry, 392 U.S. at 20). For an investigative detention to be justified, "the officer must have an articulable and reasonable suspicion that the person detained is engaged in criminal activity." King, 990 F.2d at 1557; accord Sokolow, 490 U.S. at 7. For a protective search, the officer must not only have a reasonable and articulable suspicion that the person is armed and dangerous, but he also must be "entitled to make a forcible stop." King, 990 F.2d at 1557 (quoting Adams, 407 U.S. at 146).
Under the second prong of the reasonableness determination for either an investigative stop or a protective search, the officer's action must be "reasonably related in scope to the circumstances which justified the interference in the first place." King, 990 F.2d at 1557 (quoting Terry, 392 U.S. at 20). An investigative detention may be unreasonable if it constitutes "a more serious intrusion on [one's] personal liberty than is allowable on mere suspicion of criminal activity." King, 990 F.2d at 1557 (quoting Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion)). InFlorida v. Royer, the Supreme Court stated that even though the seizure of the defendant was supported by reasonable suspicion, it was unreasonable where as a practical matter, the defendant was under arrest. Royer, 460 U.S. at 503. Similarly, a protective search may be unreasonable when it is not limited to a search for weapons. King, 990 F.2d at 1558. See Sibron v. New York, 392 U.S. 40, 65 (1968) (protective search unreasonable where officer reached inside defendant's pocket without first conducting an initial limited exploration for weapons). Regardless whether the inquiry involves an investigative detention or a protective search, the reasonableness of the officer's action depends upon the justification for the action.King, 990 F.2d at 1558. See Royer, 460 U.S. at 500;Terry, 392 U.S. at 19-20.
1. Reasonable Suspicion
Defendant contends that the officers did not have reasonable suspicion to conduct a Terry stop because there was no showing that the anonymous tipster was a reliable informant. The Supreme Court has recognized that "there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" Florida v. J.L., 529 U.S. 266, 270 (2000) (quoting Alabama v. White, 496 U.S. 325, 327 (1990)). Here, the Government notes that the officers corroborated the information they received from dispatch; that is, that someone appeared to be asleep or unconscious in a car at the location provided by the anonymous caller. However, "corroboration of non-predictive information only cannot be used to confirm the reliability of an anonymous informant for the purpose of establishing . . . reasonable suspicion of criminal activity."United States v. Tuter, 240 F.3d 1292, 1297 (10th Cir. 2001).
Reasonable suspicion "requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." J.L., 529 U.S. at 272. "[A]n accurate description of a suspect's readily observable location and appearance does not, without more, show that 'the tipster has knowledge of concealed criminal activity.'" Tuter, 240 F.3d at 1297 (quoting J.L., 529 U.S. at 272). See also United States v. Soto-Cervantes, 138 F.3d 1319, 1323 (10th Cir. 1998) ("The verification of facts readily observable to anyone on the street, without more, is insufficient to support a reasonable suspicion that criminal conduct is occurring.").
When the officers arrived at the scene, they did not observe any evidence of criminal activity, such as illegal drugs or a knife as stated by the caller. All they saw was Defendant apparently asleep in his car. Other than the information provided by the anonymous caller, the officers had no reason to suspect Defendant of criminal activity. See J.L. 529 U.S. at 270;Tuter, 240 F.3d at 1297. Accordingly, the officers did not have reasonable suspicion for an investigative detention underTerry. See J.L., 529 U.S. 266 (anonymous tip that youth wearing plaid shirt possessed gun at bus stop lacked sufficient indicia of reliability to support reasonable suspicion where there was no other evidence of criminal activity).
2. Community Caretaking Function
The Government does not articulate an argument that the initial encounter was a Terry stop, supported by reasonable suspicion. Instead, it contends that the officers were exercising a community caretaking function when they asked defendant to exit the car in that they were attempting to ascertain whether he was safe to drive.
The Supreme Court has recognized that police encounters are initiated for a variety of reasons, some of which are entirely unrelated to the purpose of prosecuting crime. Terry, 392 U.S. at 13; King, 990 F.2d at 1560. In this regard, "police officers are not only permitted, but expected, to exercise what the Supreme Court has termed 'community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'"King, 990 F.2d at 1560 (quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973)); accord Madrid, 30 F.3d at 1276-77.
In exercising this function, the police may have occasion to seize a person within the meaning of the Fourth Amendment to ensure the safety of the public, or the individual, even though there is no suspicion of criminal wrongdoing. King, 990 F.2d at 1560. See, e.g., United States v. Rideau, 949 F.2d 718, 720 (5th Cir. 1991) (police seized defendant for his own safety and the safety of others after he was found standing in a roadway at night wearing dark clothing, and apparently intoxicated), vacated on other grounds, 969 F.2d 1572 (5th Cir. 1992) (en banc) (agreeing with panel on this point); United States v. Wallace, 889 F.2d 580, 582 (5th Cir. 1989) (defendant detained for his own safety after officers received report that he had a gun and was suicidal). The fact that the officer may not suspect the individual of criminal activity does not render the seizure unreasonable under Terry which requires only that the officer have specific and articulable facts which reasonably warrant the intrusion. King, 990 F.2d at 1560; (citing Terry, 392 U.S. at 21). Nevertheless, an individual's Fourth Amendment rights are not eliminated simply because the officer is acting in a noninvestigatory capacity.King, 990 F.2d at 1560. It would be anomalous if a person were protected by the Fourth Amendment only when he is suspected of criminal activity. Camara v. Municipal Court, 387 U.S. 523, 530 (1967); King, 990 F.2d at 1560.
"Reasonableness under the Fourth Amendment 'depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.'" King, 990 F.2d at 1559 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)). Thus, the reasonableness of the seizure of an individual by police exercising their community caretaking function depends upon whether it is based upon specific, articulable facts, and requires the court to balance the government's interest in the community caretaking function against the interest of the individual in being free from arbitrary government interference.King, 990 F.2d at 1560; Brignoni-Ponce, 422 U.S. at 878;Terry, 392 U.S. at 20-21.
In the instant case, Defendant argues that the officers were unable to articulate specific facts upon which they relied to justify the intrusion. In particular, Defendant notes that the officers were vague in their reasons for asking him to get out of the car, stating that he was sweaty and appeared to have something wrong with him medically; that there "was something definitely not right;" and that he did not appear to be healthy. (Tr. 25, 26, 17.) Although the officers could have been more specific in stating their reasons, the court believes that it was clear from their testimony that they asked Defendant to get out of the car because they feared that he might be ill, or under the influence of alcohol or drugs. In particular, they were concerned for Defendant's safety and the safety of others in that Defendant might not be in condition to drive a car. Further, the court must consider the officers' actions in light of the "totality of the circumstances." Johnson, 364 F.3d at 1190; see Sokolow, 490 U.S. at 8. The officers who responded to the location had been told by dispatch that there might be a possible suicide, thus providing an additional reason for them to be concerned about Defendant's condition.
The court concludes that the State's interest in making sure that an impaired driver was not on the road, and that Defendant was not a danger to himself or others, outweighs Defendant's interest in being free from government intrusion. Thus, the officers were justified in asking Defendant to get out of the car in order to assure themselves that he was all right, and that he was capable of driving. Accordingly, the request to exit the car was reasonable.
C. Escalation of the Seizure to an Arrest
When Defendant began to exit the car, the gun fell from his pants and was seen by the officers. At that point, the officers drew their guns, ordered Defendant to the ground, and handcuffed him. Defendant contends that this constituted an arrest without probable cause.
The court concludes that this case is controlled by United States v. King, 990 F.2d 1552 (10th Cir. 1993), in which the Tenth Circuit addressed a similar situation. In that case, Defendant King was honking his horn at an intersection where a traffic accident had occurred. An officer at the scene of the accident approached his car to explain that his honking was creating a hazard. When King lowered his heavily tinted car window to apologize, the officer saw a pistol tucked under his thigh. State law permitted motorists to carry loaded weapons in their cars, concealed or otherwise. The officer immediately drew her gun, and ordered King to place his hands on the steering wheel on threat of being shot. She then called for backup officers who approached the car with guns drawn, and ordered King to get out of the car and down on his knees where he was handcuffed. Id. at 1555.
The Tenth Circuit explained the officer was exercising her community caretaking function when she approached the car, because the incessant honking created a hazard. Thus, she was justified in approaching King's car, and could have briefly detained him in order to inform him of the hazardous conditions and to tell him to quit honking, regardless of whether he had committed any traffic violation. Id. at 1561. When the officer observed the pistol within easy reach of King and his passenger, she escalated the encounter to a seizure, not for investigative purposes, but for her own safety and the safety of bystanders. Id.
The court stated that the officer's observation of the apparently loaded pistol within the defendant's reach would justify the separation of the defendant from the pistol in order to ensure the officer's safety during the encounter. Id. The government interest in officers' safety outweighs the individual's Fourth Amendment interests when the officer has an objective reason to believe that the person being detained is armed and dangerous. Further, whether the weapon was legally possessed had no bearing on the reasonableness of the officer's actions because a legally possessed weapon was just as dangerous to officer safety as an illegal one. Id. In short, at the time the officer observed the pistol, she was entitled to separate the defendants from the pistol by ordering them out of the car while she advised them of the hazardous conditions created by the horn-honking. Id. at 1562.
The court stated that the officer thus had an articulable safety reason justifying the initial intrusion and the additional intrusion in asking the defendants to step out of the car was de minimus under Pennsylvania v. Mimms, 434 U.S. 106 (1977) (allowing police to order lawfully stopped driver out of car for officer safety reasons). King, 990 F.2d at 1562. Otherwise, the officers unreasonably would be required to take an unnecessary risk in the performance of their duties. Id. See Terry, 392 U.S. at 23.
Having found that the initial detention was justified at its inception, and that the officer was also justified in separating the defendants from the pistol, the court considered whether the officer's subsequent actions were "reasonably related in scope to the circumstances which justified the interference in the first place." King, 990 F.2d at 1562 (quoting Terry, 392 U.S. at 20). The court stated that the government's reliance on Mimms was misplaced. It explained that in Mimms, "a critical factor was the 'de minimus' intrusion on the defendant's liberty resulting from the officer's request to step out of the car during the course of a traffic stop which the Court considered nothing more than a 'mere inconvenience.'" King, 990 F.2d at 1562. However, in King, the officer drew her gun, pointed it at King, and threatened to shoot him if he did not comply with her order. In addition, she called for backup officers who also drew guns on King. The officers then ordered him to his knees and handcuffed him, after he was separated from the gun and no longer posed a threat to the officers or bystanders. The court stated that this level of intrusion was not remotely similar to ordering a motorist to step out of the car and could hardly be considered a "mere inconvenience." Id. The court observed that in a state which allows people to lawfully carry firearms, to allow the seizure of any citizen whom the police have an articulable reason to believe presents a threat to their safety "would effectively eliminate Fourth Amendment protections for lawfully armed persons." Id. at 1558-59. Further, it would render toothless the requirement that the scope and duration of a detention be carefully tailored to its justification. "For example, if a police officer's safety could justify the detention of an otherwise lawfully armed person, the detention could last indefinitely because a lawfully armed person would perpetually present a threat to the safety of the officer." Id. at 1559.
The court stated that whether the officer's seizure of the defendants was "reasonably related in scope to its justification must focus on whether the facts available to the officer would 'warrant a man of reasonable caution in the belief' that the action taken was appropriate." Id. at 1562 (quoting Terry, 392 U.S. at 22). There are no "bright line" rules in assessing whether the intrusion was reasonably related in scope to its justification, but instead the evaluation is guided by "common sense and ordinary human experience." King, 990 F.2d at 1562 (quoting Sharpe, 470 U.S. at 685). See also United States v. Montoya de Hernandez, 473 U.S. 531, 542-43 (1985). While police officers are not required to use the least intrusive means during a detention, the court must determine whether the failure to use less intrusive means was unreasonable. King, 990 F.2d at 1562-63; Sharpe, 470 U.S. at 686-87; see Montoya de Hernandez, 473 U.S. at 542.
In King, the Tenth Circuit held that, notwithstanding its reluctance to "indulge in 'unrealistic second-guessing'" of officers in determining whether a seizure was reasonably related in scope to its justification, the officer's failure to use less intrusive means to ensure her safety while advising the defendant to quit honking his horn was unreasonable. The basis for the detention, the traffic hazard presented by the honking, was alleviated when the defendant ceased honking prior to the time that the officer observed the gun. Nevertheless, the officer was entitled to inform the defendant about the situation to ensure that he would not continue to create a hazard. Further, once the officer observed the gun, she had the right to separate the defendants from the gun to ensure her own safety by ordering the defendants out of the car. However, the officer's conduct went far beyond what was necessary to ensure her own safety. Instead, she initiated what was essentially an arrest procedure. King, 990 F.2d at 1563. See United States v. Maez, 872 F.2d 1444, 1450-51 (10th Cir. 1989) (defendants were effectively arrested where police surrounded house and ordered them out). Thus, the Tenth Circuit concluded that, under the facts of the case, the officer's conduct was not "reasonably related in scope to the circumstances which justified the interference in the first place." King, 990 F.2d at 1563 (quoting Terry, 392 U.S. at 20). The court accordingly held that the seizure of the defendants was unreasonable under the Fourth Amendment. King, 990 F.2d at 1563.
The court noted, however, that in a state where it was illegal to transport a weapon inside the passenger compartment of a car, the officer would have had probable cause to arrest the defendants upon observing the gun, and the officer's actions would therefore have been reasonable. King, 990 F.2d at 1563 n. 5.
In the instant case, the court concludes that the seizure was justified at its inception in that the officers had a specific, articulable reason to order Defendant to exit the car to ensure his safety and that of others in making sure that he was safe to drive. When the gun dropped to the floor, the officers were entitled to separate Defendant from the weapon in order to ensure their own safety. However, like the officers in King, the officers in this case went far beyond ensuring their safety and executed what was essentially an arrest procedure, drawing their guns, forcing Defendant to his knees, and handcuffing him. At the time of the arrest, there was no showing that the gun was illegally possessed, since it is legal to possess a gun in a car in Utah. See Utah Code Ann. §§ 53-5-704, 710. Further, Defendant was already complying with the order to exit the car. No evidence was presented that Defendant made any threatening gesture or sudden movement toward the gun. See King, 990 F.2d at 1555. In short, the officers' actions were not "reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20; King, 990 F.2d at 1563. Accordingly, the escalation of the seizure to an arrest violated the Fourth Amendment.
D. Suppression of the Evidence
The Government argues that because the officers saw the gun before they arrested Defendant, it is admissible pursuant to the "plain view" doctrine. Under the plain view doctrine, the police may seize evidence of a crime without a warrant if (1) the officer was lawfully in a position to view the object; (2) the incriminating character of the object was immediately apparent; that is, the officer had probable cause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself. Sanchez, 89 F.3d at 719; United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994; Horton v. California, 496 U.S. 128, 136-37 (1990). In the instant case, the second element of the plain view doctrine is not satisfied because the incriminating nature of the gun was not immediately apparent. As discussed, it is legal to carry a gun in a car in Utah. At the time the officers saw the gun, they did not know that Defendant had a felony conviction, and they had no reason to believe that the gun was evidence of a crime.
In Donta v. Hooper, 774 F.2d 716 (10th Cir. 1985), a civil rights case, the police discovered a collection of weapons in plain view while executing a search warrant for moonshine liquor and related equipment. The police ran the serial numbers of seven weapons through NCIC which reported that four of the weapons were stolen. The Tenth Circuit noted that when police seize evidence under the plain view doctrine, the incriminating nature of the evidence must be immediately apparent. The court held that the seizure of Donta's guns was not objectively reasonable because nothing about his gun collection raised the probability of illegal possession. Id. at 719-20. Compare United States v. Wilson, 2 F.3d 226, 232 (7th Cir. 1993) (upholding seizure of weapons observed in plain view in defendant's car where "the incriminating nature of the weapons was immediately apparent because [state] law does not permit firearms to be readily accessible to automobile occupants.").
Although the Tenth Circuit did not discuss the plain view doctrine in King, it upheld the suppression of the weapon even though the officer observed the gun prior to the unlawful seizure of Defendants. See also Minnesota v. Dickerson, 508 U.S. 366, 378-79 (1993) (holding that the plain view doctrine did not justify the seizure of contraband from the defendant's pocket during a Terry search where the incriminating nature of the contraband was not immediately apparent). Accordingly, the gun, as well as all other evidence obtained as a result of the unlawful seizure should be suppressed.
III. RECOMMENDATION
Defendant was arrested without probable cause to believe that he had committed, or was committing, a crime. The evidence obtained as a result of the unlawful seizure should be suppressed. Accordingly, Defendant's motion to suppress (Dkt. 9) should be GRANTED.
It is further RECOMMENDED that pursuant to 18 U.S.C. § 3161 (h)(1)(F) and (J), any order of the district judge regarding this Report and Recommendation should exclude from the computation of the Speedy Trial Act, the time from the filing of the Motion to Suppress through the date of entry of the order of the district judge.
Copies of the foregoing Report and Recommendation are being mailed to the parties, who are hereby notified that they have the right to object to the Report and Recommendation. The parties are further notified that they must file any objections to the Report and Recommendation with the clerk of the district court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.