United States v. Donald Montgomery

Filing

OPINION FILED - THE COURT: Lavenski R. Smith, Bobby E. Shepherd and Jane Kelly AUTHORING JUDGE:Lavenski R. Smith (PUBLISHED) [4424056] [15-2206]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2206
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Donald R. Montgomery
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 13, 2016
Filed: July 11, 2016
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Before SMITH, SHEPHERD, and KELLY, Circuit Judges.
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SMITH, Circuit Judge.
Donald R. Montgomery appeals his conviction for being a felon in possession
of a firearm, arguing that the law enforcement officers that arrested him and found the
firearm in his pocket violated the Fourth Amendment by detaining him without
reasonable suspicion. We affirm.

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I. Background
Kansas City Police officers patrolling a high-crime neighborhood observed,
from a public alley, a van parked in the unfenced backyard of a house. The officers
approached the van and saw Montgomery and a companion asleep inside. Just two
weeks before, the officers had arrested a man dismantling a stolen car in the same
backyard. Apparently, this particular neighborhood is commonly used by thieves who
seek to sell stolen metal—such as car parts and copper wiring and pipes—to autosalvage or scrap-metal dealers. Concerned that the van was stolen and soon to be
processed for salvage, the officers investigated. After determining that the van was
not stolen, the officers looked inside the back of the van and noticed a large quantity
of copper pipes. One officer knocked on the driver's side window and the other on the
passenger's side. Montgomery, sitting in the driver's seat, rolled down the window.
The officers asked Montgomery where he and his companion had gotten the copper
pipe. They also asked him for identification and his home address. After asking
dispatch to check for outstanding warrants, the officers learned that there were two
warrants for Montgomery's arrest. The officers ordered Montgomery out of the car
and attempted to place him under arrest. He resisted, but the officers eventually
subdued him. During the struggle, the officers noticed that Montgomery was
attempting to retrieve something from one of his pants pockets. During a search
incident to Montgomery's arrest, the officers found a firearm in that pocket.
Montgomery, a felon, was indicted for being a felon in possession of a firearm.
Montgomery moved to suppress the firearm. The district court1 denied the
motion to suppress, concluding that the officers had reasonable suspicion sufficient
to detain Montgomery until they discovered that there were two outstanding warrants
for his arrest. Montgomery then pleaded guilty, reserving his right to withdraw his
plea if he prevailed in his challenge of the district court's suppression ruling. The

1

The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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court sentenced Montgomery to 200 months' imprisonment with 5 years of supervised
release. Montgomery appeals. We have jurisdiction to review Montgomery's
conviction pursuant to 28 U.S.C. § 1291.
II. Discussion
The district court concluded that the officers had reasonable suspicion
sufficient to detain Montgomery because Montgomery was sleeping in an unmarked
van filled with copper pipes that was parked in a location known to be used in
processing stolen scrap metal. Montgomery argues that these facts are insufficient to
support the alleged detention. He avers that the officers had no specific information
that the pipes were stolen. We agree with the district court.
In reviewing the district court's decision not to suppress the evidence, we
review de novo the court's legal conclusions and review its findings of fact for clear
error. United States v. Barry, 394 F.3d 1070, 1074 (8th Cir. 2005). A brief
investigatory stop is permissible under the Fourth Amendment "if the officer has a
reasonable suspicion supported by articulable facts that criminal activity 'may be
afoot.'" United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio,
392 U.S. 1, 30 (1968)). In determining whether an officer has reasonable suspicion,
we "must look at the 'totality of the circumstances' of each case to see whether the
detaining officer has a 'particularized and objective basis' for suspecting legal
wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United
States v. Cortez, 449 U.S. 411, 417–18 (1981)). Additionally, officers are permitted
"to draw on their own experience and specialized training to make inferences from
and deductions about the cumulative information available to them that 'might well
elude an untrained person.'" Id. (quoting Cortez, 449 U.S. at 418).

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In this case, the officers had reasonable suspicion that the copper pipes that
Montgomery had in his possession were stolen.2 First, the area was notorious and
known to the officers for use in scrap-metal theft. The officers had recently arrested
a man in the very same backyard who was actively dismantling a stolen car in order
to sell the parts and scrap metal. The officers drove through the public alley to
investigate the backyard that morning based on knowledge gained from that prior
arrest. Moreover, the officers patrolled the neighborhood aware of its notoriety for
scrap-metal theft. In fact, other officers were simultaneously investigating a copper
theft in the area. Second, the circumstances observed by the officers strongly
suggested that the copper pipes were stolen. The van bore no markings of a plumbing
or construction business. The absence of such markings suggested that the copper
pipes were potential scrap and were not part of a legitimate business. The fact that
Montgomery was using the vehicle and the backyard for sleeping also raised
suspicion of unlawful activity.
Accordingly, the district court correctly concluded that the totality of the
circumstances provided the officers with reasonable suspicion that the copper pipes
in Montgomery's possession were stolen. The subsequent brief detention, questioning,
and eventual arrest pursuant to outstanding warrants were therefore permissible under
the Fourth Amendment.
III. Conclusion
For these reasons, we affirm the district court's denial of Montgomery's motion
to suppress and therefore his conviction.
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2

For example, the officers had reasonable suspicion to believe that
Montgomery was violating Missouri law by "retain[ing] . . . property of another
knowing that it has been stolen, or believing that it has been stolen" with "the purpose
of depriving the owner of a lawful interest therein." Mo. Rev. Stat. § 570.080(1).
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