United States v. Derek Preston

Filing

CORRECTED OPINION FILED - THE COURT: WILLIAM JAY RILEY, ROGER L. WOLLMAN and LAVENSKI R. SMITH Original Opinion filed on: 07/13/2012 Correction to opinion: Page 3 third paragraph second to last word, the text is changed from "Preston testified" to read "Judkins testified". [3932040] [11-2788]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2788
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United States of America,

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Appellant,
v.

Appeal from the United States
District Court for the
District of Minnesota.

Derek Lee Preston,
Appellee.

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Submitted: February 16, 2012
Filed: July 13, 2012 (CORRECTED 7/16/12)
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Before RILEY, Chief Judge, WOLLMAN, and SMITH, Circuit Judges.
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WOLLMAN, Circuit Judge.
Derek Lee Preston was charged with being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). The government appeals the district court’s
order suppressing evidence as fruits of a search conducted without reasonable
suspicion. We reverse and remand.
I.
On January 25, 2011, Minneapolis Police Officer George Judkins was on
routine patrol in a marked squad car. At approximately 10:20 p.m., Judkins observed

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a Ford Explorer perform an illegal U-turn, back into a snow bank, and then
temporarily block the intersection at 35th Avenue and Tyler Street. Judkins followed
the vehicle, which turned onto Tyler Street and then pulled over to the side of the
road without signaling and in the absence of any signal from Judkins that it should
do so. Judkins pulled in behind the Explorer and ran the license plate number
through his squad car computer.
As he was running the plates, Judkins observed a female, later identified as
Sherry Smith, exit the Explorer. She walked north past several homes, turned to look
back at Judkins, and then knocked on the door of a house that had no cars parked in
front of it, and again looked back at Judkins. Judkins testified that he could see the
occupants of the home look through the front window at Smith, but they did not
answer the door. Smith’s behavior seemed suspicious to Judkins, as though she
might be trying to create a distraction.
By this time, Judkins had learned that the Explorer was registered to a car lot,
not an individual. When Smith began to walk back to the Explorer, Judkins turned
on his squad car lights, exited the car, and walked toward the driver-side door of the
Explorer. Judkins approached the driver, who identified himself as Charles Tate and
stated that he did not have a driver’s license. Tate explained that they were in the
area looking for his sister, who was involved in a domestic dispute with her
boyfriend. While speaking with Tate, Judkins observed that there were two
passengers in the rear seat.
Judkins testified that, during his exchange with Tate, he observed the two
passengers looking “a little too nervous” and not making eye contact. Judkins did not
include this observation in his police report, a fact noted by the magistrate judge but
found to be “not noteworthy” by the district court. Regardless of what was eventually
put into writing, Judkins radioed for back-up at the conclusion of his conversation
with Tate. Judkins testified that “the activity of driving, and the female getting out,
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and the occupants appearing nervous, and the car listing to a car lot, I was nervous
for my safety.”
After Smith returned to the vehicle, Judkins asked if she was licensed to drive.
She replied that she was, although she could not provide a driver’s license. Judkins
asked why she was not driving, to which Smith replied that she had a toothache. She
also told Judkins that the Explorer was hers. She had purchased it five or six days
earlier, but did not pick it up until that evening because of a financial issue with the
down payment. Smith initially said that the vehicle was insured, but later claimed
that the sales person had told her that she did not need insurance to drive it off the lot.
Judkins believed that Smith was lying about the insurance, and he asked her to find
her proof of ownership or insurance in the vehicle.
Judkins then approached the two other passengers and asked them for
identification. The female passenger in the rear driver-side seat could not produce
identification, but told Judkins she was Latice Tate, a relative of Charles Tate.
During this exchange, Preston, the passenger in the rear passenger-side seat, passed
his state identification card to Judkins. Judkins testified that Preston looked familiar
but that he could not place him until he saw the name on his identification card, and
“[a]s soon as I saw the name on the ID, I remembered who he was.”
Judkins knew who Preston was because “[h]e had a history of domestic
violence calls and violence calls and some gun cases in our precinct.” When asked
how he knew about these calls, Judkins testified:
I’ve been on some of them myself. My partner had one, one of the calls
where a gun was recovered out of a bag that belonged to him [Preston],
which he told me about. Information was also disseminated in roll call
on officers about officer safety, and I remember at the time his name was
coming up quite a bit.

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There were three incidents involving Preston in Judkins’s precinct, one in 2008
and two in 2004. The reports from the three cases showed that Judkins was not
personally on any of the calls. In one of the 2004 incidents, there were reports of
gunshots fired, but no charges were filed. Judkins heard about the incident from
another officer. In the other 2004 incident, a domestic dispute, Preston’s girlfriend
reported to police that Preston had been known to carry a gun, but no gun was ever
found. Judkins’s partner responded to the 2008 incident, another domestic dispute.
After Preston was arrested his girlfriend called the police, said that she had found a
gun belonging to Preston, and asked the police to retrieve it. Preston was not charged
with being a felon in possession at that time. Apart from these three incidents,
Judkins had also heard Preston’s name mentioned at briefings regarding officer
safety. Finally, Judkins knew at the time of the stop that Preston’s girlfriend had an
order for protection against Preston.
After identifying the passengers, Judkins returned to his squad car and ran their
names through a system that checks an individual’s driver’s license status, vehicle
ownership, and warrant status, among other things, but does not perform criminal
history checks. Judkins informed the back-up officers via radio that Preston, who had
a history of gun possession, was in the rear passenger-side seat of the vehicle.
Judkins testified that he informed the other officers of Preston’s location because it
is officer safety protocol to do so, and he didn’t “want somebody walking around who
may have a gun on them[.]” Judkins also checked to see if Preston had an
outstanding warrant, stating that he hoped he did. After running the names through
the system, Judkins determined that none of the Explorer’s occupants had outstanding
warrants and none were validly licensed to drive the vehicle. Thus, neither Tate nor
the passengers could drive the vehicle. Moreover, without proof of insurance, the
vehicle could not be parked on the city street.
When the four back-up officers arrived, Judkins asked the occupants of the
Explorer to get out so that the officers could search the vehicle before it was
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impounded, as required by police policy. The five officers surrounded the vehicle,
and Judkins told the others to “keep an eye on everybody’s hands” and “get Mr.
Preston out of the back seat as soon as possible.” Judkins approached the driver’s
side of the Explorer, and the other officers approached the passenger’s side.
During his pat-down search of Preston, Officer Tyrone Barz felt a hard cylinder
on the right side of Preston’s jacket. Barz asked Preston if he knew what the item
was, and Preston responded that he had a permit to purchase the firearm. Barz found
a loaded revolver in an inner pocket of the jacket. Preston also told Barz to check his
left side jacket pocket, where Barz found marijuana, crack cocaine, and a crack pipe.
Barz placed Preston under arrest. Upon contacting the police department call center
to find out whether Preston was subject to any restrictions preventing him from
carrying a firearm, Barz learned that Preston was on probation for a domestic assault
charge.
Preston was charged with being a felon in possession of a firearm. After
holding an evidentiary hearing on Preston’s motion to suppress and receiving posthearing briefing, the magistrate judge issued a report and recommendation
recommending that the motion be denied. The district court issued an order adopting
the magistrate judge’s findings of fact, “except to the extent specifically noted” in the
court’s order. D. Ct. Order of July 21, 2011, at 4. Without any significant departures
from the magistrate judge’s factual findings, the district court concluded that although
this case “was a close call,” the officers did not have reasonable suspicion as required
for a pat-down search under Terry v. Ohio, 392 U.S. 1, 27 (1968), and thus granted
the motion to suppress.
II.
Preston does not contest the lawfulness of the initial stop or his removal from
the vehicle as part of a valid impound search, and so the sole issue on appeal is
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whether the pat-down search was constitutionally permissible. “We review the
district court’s legal conclusions de novo and its factual findings for clear error.”
United States v. Horton, 611 F.3d 936, 940 (8th Cir. 2010) (citing United States v.
Griffith, 533 F.3d 979, 982 (8th Cir. 2008)).
The Fourth Amendment forbids unreasonable searches and seizures and usually
requires police to obtain a warrant before conducting a search. United States v.
Roggeman, 279 F.3d 573, 577 (8th Cir. 2002) (citations omitted). There is an
exception to the warrant requirement that permits a limited search for a weapon if
there is a reasonable suspicion that the suspect is armed and poses a danger to officers
or others. Terry, 392 U.S. at 29.
“Officers may conduct a protective pat-down search for weapons during a valid
stop . . . when they have objectively reasonable suspicion that a person with whom
they are dealing ‘might be armed and presently dangerous and criminal activity might
be afoot.’” United States v. Robinson, 664 F.3d 701, 704 (8th Cir. 2011) (quoting
United States v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000)). “In determining
whether reasonable suspicion exists, we consider the totality of the circumstances in
light of the officers’ experience and specialized training.” United States v. Davis, 457
F.3d 817, 822 (8th Cir. 2006) (citing United States v. Arvizu, 534 U.S. 266, 273
(2002)). “[A] pat-down is permissible if a ‘reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was
in danger.’” Horton, 611 F.3d at 941 (quoting Terry, 392 U.S. at 27). “In examining
the relevant facts and inferences, we must keep in mind that ‘minimally intrusive
weapons searches’ at traffic stops will more likely be reasonable because of the
‘inherent danger’ of traffic stops.” United States v. Shranklen, 315 F.3d 959, 962
(8th Cir. 2003) (quoting United States v. Menard, 95 F.3d 9, 11 (8th Cir. 1996)).
Preston argues that a criminal record, standing alone, is not sufficient to create
reasonable suspicion to support a search or seizure. He repeatedly refers to Judkins’s
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testimony that the three prior cases in the second precinct were the basis for the patdown. This argument has three flaws. First, it ignores other relevant facts, including
additional testimony by Judkins. Second, focusing on Judkins’s perception alone
would transform this objective test into a subjective one, contrary to precedent.
Third, in determining whether reasonable suspicion existed, we examine the facts
collectively rather than asking if each fact individually establishes reasonable
suspicion. See Arvizu, 534 U.S. at 274; United States v. Stachowiak, 521 F.3d 852,
856 (8th Cir. 2008) (citation omitted) (discussing reasonable suspicion in the context
of a Terry stop). We conclude that the facts in this case, viewed objectively and
collectively, created objectively reasonable suspicion to justify a pat-down of Preston.
Considering the facts collectively, this situation arose out of a nighttime traffic
stop. See Shranklen, 315 F.3d at 962 (noting the inherent danger of traffic stops);
United States v. Roggeman, 279 F.3d at 578 (holding that the fact that a traffic stop
takes place at night goes to concerns about officer safety). Further, by walking up the
street while looking back at Judkins and then knocking on the door of a home whose
occupants were visible but who refused to answer, Smith appeared to be attempting
to create a distraction. Moreover, the driver of the vehicle did not have a license and
the vehicle was registered to a car lot. See United States v. Garcia, 441 F.3d 596, 599
(8th Cir. 2006) (citing Shranklen, 315 F.3d at 963) (concluding that lack of proof of
ownership and valid driver’s license supported a finding of reasonable suspicion that
defendant might be armed and dangerous). These factors contributed to Judkins’s
suspicion that criminal activity was afoot and might present a threat to officer safety,
as evidenced by Judkins’s call for back-up prior to his discovering that the rest of the
occupants lacked valid driver’s licenses and prior to learning Preston’s identity.
Once Judkins learned Preston’s identity, he knew that Preston had been
involved in prior cases in the second precinct involving domestic violence and guns.
Because the most recent of these incidents occurred three years prior to the stop at
issue here, Preston argues that such information, without more, was stale and could
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not create reasonable suspicion. But “[t]here is no bright-line test for determining
when information is stale.” Stachowiak, 521 F.3d at 856 (citing United States v.
Koelling, 992 F.2d 817, 822 (8th Cir. 1993)); see also Garcia, 441 F.3d at 599
(holding that a prior drug conviction, and driving a car owned by neither the
passenger nor driver who were both without valid driver’s licenses created reasonable
suspicion). We believe that these prior incidents were relevant when considered with
Judkins’s knowledge that Preston’s girlfriend had an order for protection against him
and that Preston’s name had been mentioned, around this time, at officer safety
briefings. See United States v. Davis, 471 F.3d 938, 945 (8th Cir. 2006) (holding that
unspecified prior intelligence that defendant possessed firearms was one of several
articulable facts creating reasonable suspicion); United States v. Walker, No. 961124, 1996 WL 686160, at *1 (8th Cir. Dec. 2, 1996) (holding that a “safety warning”
posted at police headquarters two or three weeks before a stop created reasonable
suspicion for a pat-down).
Finally, we recognize that allowing the occupants of the vehicle to walk away
unsearched would have posed a further threat to officer safety. As we noted in United
States v. Oliver, 550 F.3d 734 (8th Cir. 2008), a person who is allowed to walk away
from a stop without a pat-down search could hypothetically turn around and shoot
officers remaining at the scene. Id. at 738.
In sum, we disagree with the district court’s legal conclusion that “[t]here was
no other conduct by the Defendant or the other occupants in the car, based upon the
totality of the circumstances, and taking into account the officers’ deductions and
rational inferences resulting from training and experience, which created a specific,
reasonable, and articulable suspicion that their safety or that of others was in danger.”
D. Ct. Order of July 21, 2011, at 10. We conclude that the totality of the
circumstances created an objectively reasonable suspicion that Preston might be
armed and dangerous, and thus the pat-down search was constitutionally permissible.

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III.
The order granting the motion to suppress is reversed, and the case is remanded
to the district court for further proceedings.
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