United States v. Kareen Rasul Griffin , 696 F.3d 1354 ( 2012 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15558
________________________
D.C. Docket No. 3:11-cr-00124-RBD-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
KAREEN RASUL GRIFFIN,
Defendant-Appellee.
___________________________
Appeal from the United States District Court
for the Middle District of Florida
____________________________
(October 2, 2012)
Before DUBINA, Chief Judge, JORDAN and ALARCÓN,* Circuit Judges.
JORDAN, Circuit Judge:
*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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Does a constitutionally valid stop and frisk become unreasonable under the
Fourth Amendment when the officer asks some brief questions unrelated to the reason
for the stop and the purpose of the frisk? The district court thought so, and suppressed
the answers to those questions and ammunition found after the answers were
provided. We reverse, concluding that the questions posed did not convert a
permissible encounter into an unconstitutional one.
I
Fourth Amendment cases are inherently fact-intensive, so we begin with the
district court’s factual findings, which are not challenged on appeal.
On February 22, 2011, Officer Jay Edwards, a patrol officer with the
Jacksonville Sheriff’s Office, responded to an unverified 911 call from Rainbow
Kids, a children’s clothing store in Jacksonville, Florida.1 Officer Edwards was
familiar with the strip mall where the store was located. He knew that there was drug
activity in the surrounding area and that there had been several burglaries in the mall.
Officer Edwards arrived at approximately 8:57 p.m. The store’s security guard
came running out and informed him that a man had attempted to steal some clothing.
The guard pointed to and identified a male walking quickly away from the store as
1
An unverified 911 call, Officer Edwards testified, is one in which someone places an
emergency call but does not say anything to the operator.
2
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the person who committed the attempted theft. There were six to eight people in the
direction where the guard pointed, but Mr. Griffin was the only one who fit the
guard’s description of “the black man in the green jacket and jeans.”
Returning to his vehicle, Officer Edwards followed Mr. Griffin, who continued
to look over his shoulder and walk away briskly. Officer Edwards got out of his car
and told Mr. Griffin to stop. When Mr. Griffin disobeyed his command and continued
to walk away—in what the district court described as evasive behavior—Officer
Edwards approached Mr. Griffin, put both hands on one of his wrists, and informed
him that he was investigating a petit theft. Mr. Griffin said that he had not stolen
anything. Officer Edwards nevertheless frisked Mr. Griffin to ensure his own safety.
During the frisk, Officer Edwards felt what he “believed to be” C-cell batteries
in Mr. Griffin’s back left pocket. Officer Edwards did not, however, reach into the
pocket. Instead, because he “wasn’t exactly sure what [the items] were,” and because
“it was odd that someone was carrying around . . . C-cell batteries,” he asked Mr.
Griffin, “Hey, what’s in your pocket? Why do you have batteries?” See R2:10, 30, 33.
Mr. Griffin responded that the items were shotgun shells and not batteries. Officer
Edwards then asked Mr. Griffin if he had ever been to prison, and Mr. Griffin
answered “yes.” See R2:11. After Officer Edwards informed him that it was illegal
for felons to possess weapons or ammunition, Mr. Griffin began to flee. Officer
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Edwards eventually arrested Mr. Griffin, who was charged with being a felon in
possession of ammunition. See 18 U.S.C. § 922(g)(1).
Mr. Griffin moved to suppress the ammunition and the statements he made to
Officer Edwards. Following an evidentiary hearing, the district court granted the
motion to suppress. The district court found that the initial stop by Officer Edwards
was proper, but even assuming that the ensuing frisk was permissible, Officer
Edwards’ questions to Mr. Griffin were unrelated to the attempted theft or the frisk
for weapons. As a result, the questions became an unreasonable search when Officer
Edwards continued to “probe and investigate” about the items he felt in Mr. Griffin’s
pocket. And because the shotgun shells were not themselves contraband or evidence
of a crime, Office Edwards’ further investigation—e.g., asking Mr. Griffin if he had
ever been to prison—“was constitutionally invalid.” The district court recognized that
the simple act of police questioning does not constitute a seizure, but concluded that
Officer Edwards’ actions “went beyond the scope necessary to ensure his safety or
the safety of those around him,” and suppressed Mr. Griffin’s statements and the
shotgun shells as “fruits of the poisonous tree.” See Wong Sun v. United States, 371
U.S. 471, 487-88 (1963).
II
“Because rulings on motions to suppress involve mixed questions of fact and
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law, we review the district court’s factual findings for clear error, and its application
of the law to the facts de novo.” United States v. Lewis, 674 F.3d 1298, 1302-03 (11th
Cir. 2012) (internal quotation marks omitted). As noted earlier, the facts here are not
in dispute.
A
The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures[.]” U.S. Const. amend. IV. The Supreme Court has held that “police can stop
and briefly detain a person for investigative purposes if the officer has a reasonable
suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if
the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(quoting Terry v. Ohio, 392 U.S. 1 (1968)). To determine the legality of an
investigatory stop under the Fourth Amendment, we first ascertain whether the stop
was justified at its inception. See United States v. Street, 472 F.3d 1298, 1306 (11th
Cir. 2006). We then ask whether the officer’s actions were reasonably related in scope
to the circumstances that justified the stop in the first place. See id. In making these
assessments, we look at “the totality of the circumstances—the whole picture[.]”
United States v. Cortez, 449 U.S. 411, 417 (1981).
It is undisputed that the initial stop of Mr. Griffin was constitutionally
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permissible, as Officer Edwards reasonably suspected that Mr. Griffin had tried to
steal some items of clothing. Not only did the security guard describe Mr. Griffin as
the perpetrator, see, e.g., Morelli v. Webster, 552 F.3d 12, 19-20 (1st Cir. 2009)
(reasonable suspicion of theft provided basis for Terry stop), Mr. Griffin behaved
evasively and refused to obey Officer Edwards’ command to stop, see, e.g., Illinois
v. Wardlow, 528 U.S. 119, 124 (2000) (nervous and evasive behavior is a relevant
factor in determining reasonable suspicion, and flight, the consummate act of evasion,
is suggestive of wrongdoing). We therefore move on to what transpired during the
stop.
B
The district court assumed, without deciding, that Officer Edwards’ pat-down
was valid at its inception. Mr. Griffin questions this assumption, asserting that the
frisk was unconstitutional because Officer Edwards did not have the required
reasonable suspicion that he was armed and dangerous. The government, for its part,
contends that Officer Edwards’ frisk of Mr. Griffin was justified. The government,
we think, has the better of the argument.
Once an officer has stopped an individual, he may conduct a pat-down or frisk
for weapons if he reasonably believes that his safety, or the safety of others, is
threatened. See, e.g., United States v. White, 593 F.3d 1199, 1202 (11th Cir. 2010).
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Mr. Griffin relies on the district court’s findings that “there [was] no evidence that
would suggest [Mr. Griffin] ‘[was] armed and presently dangerous,’” and no evidence
that Mr. Griffin “threatened to use a weapon or used a weapon in the alleged
execution of the petit theft.” But Terry does not demand definitive evidence of a
weapon or absolute certainty that an individual is armed. The process of evaluating
whether reasonable suspicion exists under Terry “does not deal with hard certainties,
but with probabilities.” Cortez, 449 U.S. at 418. “‘[T]he issue is whether a reasonably
prudent man in the circumstances would be warranted in the belief that his safety or
that of others was in danger.’” White, 593 F.3d at 1202-03 (quoting Terry, 392 U.S.
at 27).
When evaluating the totality of the circumstances, we do not consider each fact
in isolation, see United States v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002), and
here we conclude that the facts known by Officer Edwards at the time permitted him
to frisk Mr. Griffin consistent with the Fourth Amendment. First, Officer Edwards
was alone at night in a high crime area, and had not been told anything specific about
Mr. Griffin, other than that he had tried to steal some items of clothing. Second, Mr.
Griffin—who was in the vicinity of six to eight other persons—acted evasively and
refused to obey Officer Edwards’ command that he stop. Third, Officer Edwards had
not finished investigating the alleged attempted theft. See United States v. Moore, 817
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F.2d 1105, 1108 (4th Cir. 1987) (“The circumstances surrounding the stop support
the officer’s belief that a further frisk for weapons was warranted. The hour was late,
the street was dark, the officer was alone, and the suspected crime was burglary, a
felony that often involves the use of weapons.”). See also Hunter, 291 F.3d at 1306-
07 (officer could conduct frisk under Terry where encounter took place in a high
crime area, individual who was seen observing illegal gambling walked away quickly
when the police approached, and officer saw bulge in individual’s waistband); United
States v. Aldridge, 719 F.2d 368, 372 (11th Cir. 1983) (“Having made a valid
investigative stop of a vehicle containing three men in a poorly lit area in the middle
of the night pursuant to a radio report that the suspects may have been involved in
criminal activity [i.e., tampering with a vehicle], [the officer] was entitled to take
reasonable measures to neutralize the threat of physical harm.”). The Eighth Circuit
has noted, in upholding a frisk for weapons of a person suspected of stealing a
bicycle, that “it is not inconceivable” for a police officer to believe that a “thief
possessed a weapon,” United States v. Banks, 553 F.3d 1101, 1106 (8th Cir. 2009),
and other circuits have held that individuals reasonably suspected of burglary and
theft can be frisked for weapons under Terry because of the nature of those offenses.
See United States v. Snow, 656 F.3d 498, 501 (7th Cir. 2011) (“Because burglary is
the type of offense ‘normally and reasonably expected to involve a weapon,’ . . .
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police do not require additional information suggesting that a suspect might be armed
before they may conduct a protective frisk of someone they reasonably suspect of
being a burglar.”) (quoting United States v. Barnett, 505 F.3d 637, 640-41 (7th Cir.
2007)); United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007) (“Like burglary,
car theft is a crime that often involves the use of weapons and other instruments of
assault that could jeopardize police officer safety, and thus justifies a protective frisk
under Terry to ensure officer safety.”).
We need not decide today whether to adopt such a categorical Terry rule. It is
sufficient to hold that the suspected offense, together with the attendant
circumstances, provided a sufficient basis for Officer Edwards to frisk Mr. Griffin.
“Great deference is given to the judgment of trained law enforcement officers ‘on the
scene[,]’” United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003), and
Officer Edwards testified that he conducted the frisk to ensure his own safety because
he believed Mr. Griffin “had just committed a criminal act” and “was the individual
[he] needed to make contact with.” See R2:10. In our view, Officer Edwards’ frisk
was consistent with Terry and its progeny. Cf. Terry, 392 U.S. at 23 (“American
criminals have a long tradition of armed violence, and every year in this country many
law enforcement officers are killed in the line of duty, and thousands more are
wounded.”).
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C
The district court noted that the simple act of police questioning does not
generally constitute a seizure. But it concluded that the encounter turned into an
unreasonable search at the point when Officer Edwards “probe[d] and investigate[d]”
about the non-contraband items he felt in Mr. Griffin’s back pocket. As the district
court saw it, Officer Edwards’ questions were not reasonably related in scope to the
circumstances that justified the stop in the first place. Officer Edwards did not believe
that the objects in the pocket were weapons, and even if he had believed that the
objects were shotgun shells, the shells were not, in and of themselves, weapons,
contraband, or evidence of a crime. The questions, moreover, were “completely
unrelated to the only suspicions” that Officer Edwards had concerning Mr. Griffin at
the time (i.e., that Mr. Griffin had tried to steal some items of clothing and/or was
armed). “The issue presented,” said the district court, was “not the scope of the
detention, but rather the scope of the search.”
The district court relied on cases holding that the scope of a Terry stop must
be reasonably related to the reasons justifying the detention. See, e.g., Hiibel v. Sixth
Judicial Dist. Court of Nev., Humboldt Cnty., 542 U.S. 177, 185 (2004) (“To ensure
that the resulting seizure is constitutionally reasonable, a Terry stop must be limited.
The officer’s action must be justified at its inception, and reasonably related in scope
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to the circumstances which justified the interference in the first place.”) (internal
quotation marks and ellipsis omitted). We do not take issue with this general
principle, but it does not control here.
The Supreme Court has “‘held repeatedly that mere police questioning does not
constitute a seizure.’” Muehler v. Mena, 544 U.S. 93, 101 (2005) (citation omitted).
For example, in Mena the Supreme Court did not find any constitutional infirmity in
an INS officer questioning a person about her immigration status while she was
detained during the execution of a search warrant—by other law enforcement
officers—for deadly weapons and evidence of gang membership. The Court
explained that the questioning did not “constitute[ ] a discrete Fourth Amendment
event,” and as long as the queries did not prolong the detention, “the officers did not
need reasonable suspicion to ask [the person] for her . . . immigration status.” See id.Four years after Mena, the Court held, in a case involving a traffic stop, that “[a]n
officer’s inquiries into matters unrelated to the justification for the . . . stop . . . do not
convert the encounter into something other than a lawful seizure, so long as those
inquiries do not measurably extend the duration of the stop.” Arizona v. Johnson, 555
U.S. 323, 333 (2009).
So how do cases like Mena and Johnson affect, if at all, the “reasonably related
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in scope” prong of Terry? This is a matter of first impression for us,2 but a number of
our sister circuits have directly confronted the question, and they have all answered
it the same way. See United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011)
(“Both Mena and Johnson make clear that unrelated questioning during an
investigative stop . . . does not run afoul of the scope component of Terry’s second
prong.”); United States v. Everett, 601 F.3d 484, 494 n.10 (6th Cir. 2010) (“[Mena]
2
In United States v. Purcell, 236 F.3d 1274, 1279-80 (11th Cir. 2001), decided before Mena
and Johnson, we noted that under then-existing Fifth Circuit precedent “the issue regarding
‘unrelated’ questions concerns not the content of the questions, but their impact on the duration of
the stop[.]” We also acknowledged that the Tenth Circuit had taken a more restrictive approach,
holding that unrelated questions could be asked during a traffic stop only if there was independent
reasonable suspicion for them. See id. at 1279. We concluded that the questions asked by the officer
during the traffic stop at issue were appropriate under either approach, without ever expressly
adopting one over the other. See id. at 1280 (“We have concluded that, under either of these tests,
Deputy Warren’s question about guns or drugs was permissible.”).
In a 2005 case involving a traffic stop for speeding and questions by the officer about the
purpose of the trip, we cited Mena for the proposition that, where an officer asks questions unrelated
to the reason for the stop or officer safety, “we are to look only at the duration of the seizure given
all the circumstances[.]” United States v. Hernandez, 418 F.3d 1206, 1209 n.3 (11th Cir. 2005). But
that statement was dicta because we concluded that the officer, from the outset of the stop, had
independent reasonable suspicion to ask the driver and passenger unrelated questions about the
purpose of their trip. See id. at 1210 (“From the first minute of the stop, the driver and Defendant
demonstrated suspicion that could warrant an objectively reasonable policeman to believe that
Defendant might be involved in other criminal activity.”).
Two years later, in yet another traffic stop case, we cited Hernandez for the proposition that
“we do not inquire as to the substantive reasonableness of the questions that are asked by a police
officer in the context of a traffic stop, but only whether the duration of the detention was prolonged
for an unreasonable time.” United States v. Ramirez, 476 F.3d 1231, 1237 n.11 (11th Cir. 2007)
(internal quotation marks omitted). But this statement too was dicta, as we found no need to address
the stated principle. See id. (“Here, because we conclude that Ramirez was not ‘detained’ at all for
purposes of the Fourth Amendment at the time Corporal Martin asked further questions of him, we
need not address whether the alleged extension of the duration of the traffic stop was reasonable or
unreasonable under Hernandez.”).
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and Johnson . . . stand for the proposition that mere questioning—on any
subject—cannot violate the scope prong of Terry[,]” and “[t]herefore, where Terry’s
duration prong is not at issue . . . the subject of the questioning” is irrelevant); United
States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007) (Mena overruled cases holding
that unrelated questions during a Terry stop must be supported by independent
reasonable suspicion); United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th
Cir. 2006) (Mena “limited” the “reasonably related in scope” prong of Terry so that,
as long as the unrelated questioning does not extend the length of the detention,
“there is no Fourth Amendment issue with respect to the content of the questions”).
See also United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002) (en banc)
(“questions that do not increase the length of detention (or that extend it by only a
brief time) do not make the custody itself unreasonable or require suppression of
evidence found as a result of the answers”). We concur with the Fourth, Sixth,
Seventh, Ninth, and Tenth Circuits, and hold—consistent with Mena and
Johnson—that unrelated questions posed during a valid Terry stop do not create a
Fourth Amendment problem unless they “measurably extend the duration of the
stop.” Johnson, 555 U.S. at 333. This is because such questions, absent a prolonged
detention, do not constitute a “discrete Fourth Amendment event.” Mena, 544 U.S.
at 101.
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Like our sister circuits, we do not think it is appropriate—given the language
in Mena and Johnson—“to adopt a bright-line ‘no prolongation’ rule.” See Everett,
601 F.3d at 492 (citing cases in accord from the First, Second, Eighth, Ninth, and
Tenth Circuits). The issue, therefore, is whether the time it took Officer Edwards to
ask the two questions, and for Mr. Griffin to answer them, “measurably” extended or
prolonged the duration of the stop so as to make it unreasonable under the Fourth
Amendment. To address this issue, we do not simply look at the “interval of
prolongation in isolation,” but rather assess the length of the stop as a whole,
including any extension of the encounter, by undertaking a fact-bound, context-
dependent analysis of all of the circumstances concerning the stop and the unrelated
questions. See Digiovanni, 650 F.3d at 509; Everett, 601 F.3d at 493-94.
The district court did not make any specific findings about whether Officer
Edwards’ questioning prolonged the stop, measurably or not, probably because it did
not think the critical issue was the scope of the detention. But given the district
court’s description of the encounter, the brevity of the questions and the answers, and
the fact that Mr. Griffin makes no claim of an unconstitutional temporal extension of
the stop, we cannot believe that the exchange lasted more than 30 seconds. Because
Officer Edwards had not yet completed his investigation into the alleged attempted
theft, and because he acted diligently, his brief questions did not transform the stop
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into an unconstitutionally prolonged seizure. See United States v. Mason, 628 F.3d
123, 131 (4th Cir. 2010) (questions about travel plans, which were unrelated to reason
for traffic stop, and which took an additional one to two minutes, did not
unreasonably lengthen stop and therefore did not violate the Fourth Amendment);
Everett, 601 F.3d at 495-96 (officer’s single unrelated question during traffic stop
about weapons and narcotics, which took up several seconds, “did not render the
traffic stop an unreasonable seizure under the Fourth Amendment”—case “not
remotely close”).
D
To the extent that it believed that Officer Edwards’ questions constituted a
search under the Fourth Amendment, the district court was mistaken. Whatever else
they might be, questions posed by a police officer to a suspect about what he has in
his pocket and whether he has been to prison are not, in the Fourth Amendment sense,
a search. “In context, these sorts of questions are not the verbal equivalent of reaching
into a suspect’s pockets to remove the contents, or the same as ordering a suspect to
‘empty his pockets’ in the midst of a protective frisk.” United States v. Street, 614
F.3d 228, 234 (6th Cir. 2010) (internal citations omitted). See also Childs, 277 F.3d
at 954 (“Nor do the questions forcibly invade any privacy interest or extract
information without the suspect’s consent.”). “Sometimes a question is just a
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question—and an eminently reasonable question at that. That is all that happened
here.” Street, 614 F.3d at 234.
E
Mr. Griffin, relying on Minnesota v. Dickerson, 508 U.S. 366 (1993), also
argues the frisk went beyond what Terry permits. We disagree.
In Dickerson, a police officer conducting a frisk for weapons felt a lump in the
person’s front pocket. Although the officer had not found any weapons during the
frisk, and knew the lump in the pocket was not a weapon, he squeezed and
manipulated the lump with his fingers from the outside of the pocket to determine
what it was. He concluded that the lump was cocaine wrapped in cellophane, and
reached inside the pocket and pulled out a small plastic bag with cocaine. See id. at
369. The Supreme Court concluded that the Minnesota Supreme Court had correctly
suppressed the cocaine because the officer went beyond what Terry allows: “Here,
the officer’s continued exploration of [the] pocket after having concluded that it
contained no weapon was unrelated to ‘[t]he sole justification of the search [under
Terry:] . . . the protection of the police office and others nearby.’ It therefore
amounted to the sort of evidentiary search that Terry expressly refused to
authorize[.]” Id. at 378 (alterations in original) (quoting Terry, 392 U.S. at 29).
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Officer Edwards testified at the suppression hearing that, during the pat-down,
he “r[a]n [his] hand across” Mr. Griffin’s back left pocket and felt what he thought
were C-cell batteries. See R2:10, 29-31. When he was asked directly if he “kind of
kneed [sic] the pocket, trying to figure out what was inside,” Officer Edwards
answered no. See R2:33. And the district court found that Officer Edwards “did not
reach into the . . . pocket to examine the objects closer, but rather asked [Mr. Griffin]
why he was carrying batteries.”
On the record before us, Mr. Griffin has not made out a Dickerson violation.
A frisk necessarily entails the officer’s use of his hands to feel for weapons, and
nothing that Officer Edwards did physically violated Mr. Griffin’s Fourth
Amendment rights. See Dickerson, 508 U.S. at 375 (“If a police officer lawfully pats
down a suspect’s outer clothing and feels an object whose contour or mass make its
identity immediately apparent, there has been no invasion of the suspect’s privacy
beyond that already authorized by the officer’s search for weapons[.]”).
Mr. Griffin’s real objection, we think, is to the questions that Officer Edwards
asked during the frisk. But those questions, as explained above, did not transgress
the Fourth Amendment. Contrary to Mr. Griffin’s argument, Dickerson does not
preclude an officer from asking about objects which he knows are not weapons. See,
e.g., United States v. Rivers, 121 F.3d 1043, 1046-47 (7th Cir. 1997) (officer did not
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violate Dickerson by “linger[ing] not more than one to two seconds” on lump in
pocket, and then tapping lump “again a few times” when asking person what the lump
was). The cases Mr. Griffin cites in support of his argument, moreover, are
distinguishable or not persuasive.
In United States v. Perez, 408 Fed. App’x 198, 200-02 (10th Cir. 2011), the
Tenth Circuit affirmed a suppression order because the officer, after completing his
frisk for weapons, continued to pat the defendant’s right rear pocket, slid his hand in
that area to try to identify an object he felt, and then asked the defendant what the
object was. That factual scenario is not present here. Officer Edwards did not conduct
a second frisk after completing the first, and he did not improperly manipulate Mr.
Griffin’s back left pocket.
The district court in United States v. Lemons, 153 F.Supp.2d 948, 958-59 (E.D.
Wisc. 2001), did hold that a police officer “committed a Dickerson violation when he
questioned [the suspect] about the items in [his] pocket.” Lemons does not sway us,
however, because it relied on a Seventh Circuit panel opinion that was later rejected
by the Seventh Circuit sitting en banc, see Childs, 277 F.3d at 949 (rejecting view of
the panel in United States v. Childs, 256 F.3d 559, 564 (7th Cir. 2001)), and because
it was decided before Mena and Johnson.
III
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The district court’s order granting Mr. Griffin’s motion to suppress is reversed,
and the case is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
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