United States v. Janice Josephine Rogers , 131 F. App'x 138 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-11220 APRIL 18, 2005
THOMAS K. KAHN
CLERK
D.C. Docket No. 03-00357-CR-J-NE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JANICE JOSEPHINE ROGERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Alabama
(April 18, 2005)
Before BLACK and WILSON, Circuit Judges, and NANGLE*, Senior District Judge.
PER CURIAM:
*
The Honorable John F. Nangle, Senior United States District Judge for the Eastern
District of Missouri, sitting by designation.
I. Introduction
Defendant Janice Rogers, convicted of possessing with the intent to
distribute in excess of five grams of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B), appeals the district court’s denial of her motion to
suppress a search of her person. We reverse.
II. Standard of Review
This court reviews questions of law regarding a district court’s denial of a
motion to suppress de novo. United States v. Rhind, 289 F.3d 690, 693 (11th Cir.
2002). Findings of fact are reviewed for clear error. United States v. Gil, 204 F.3d
1347, 1350 (11th Cir. 2000).
III. Facts
On August 18, 2000, a search warrant was issued for the residence of Hal
Atchley. (RII-45 at 4) Prior to conducting the search, the officers were advised that
Atchley had a history of violence and resisting arrest. Id. at 4-5. The officers were
also told that Atchley’s girlfriend, ostensibly defendant Rogers, might be present at
the scene of the search. (RII-45 at 4)
Upon arriving at Atchley’s trailer, the officers knocked but received no
response. Id. at 6. The officers then entered the trailer and encountered Rogers, who
was in the bedroom. Id. Rogers was immediately ordered down at gunpoint and
2
handcuffed for the officers’ safety. Id.
Officer Terry McCrackin observed a “large bulge” in defendant’s pocket and
proceeded to reach directly into defendant’s pockets and remove the bulge along with
the other contents of defendant’s pockets, laying the items on the bed. Id.
McCrackin testified that he had not formed any opinion as to what the bulge was,
that he had no idea whether it was a gun or knife or posed any threat to him, but
thought it was a “possibility.” Id. at 11-12. He also testified, however, that he had
been involved in over one hundred searches of methamphetamine labs and had
learned to anticipate a number of risks, including booby traps, chemicals, and
weapons. Id. at 9-10.
The items removed from defendant’s pockets included two individually
wrapped packages in black electrical tape, comparable in size to a cigarette lighter but
slightly bigger in width, containing pills and a powdery substance. Id. at 9. The
substances were later tested and found to be methamphetamine. Id. The officers did
not find a methamphetamine lab on the premises, but they did find a burn pile with
fuel cans and tubes behind the trailer. (RIII-45 at 91-92)
Rogers was indicted on August 4, 2003 (RI-1) and filed her motion to suppress
on August 14, 2003. (RI-7) The district court initially declined to permit the use of
the evidence under a Terry-stop theory. (RI-45 at 21-22) See Terry v. Ohio, 392 U.S.
3
1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The prosecutor suggested, however, that
the evidence was also permissibly seized under United States v. Young, 909 F.2d 442(11th Cir. 1990), and the district court eventually allowed the evidence, with the
following discussion:
Well, I'll tell you it's a tough question because Ybarra is not right
on point and Young is not right on point. And Gray, the United States
v. Gray, which the Eleventh Circuit cites in Young, is not right on point.
I'm going to deny the motion based on everything I've heard
today. All right. I'll - based on the reading of these three cases together,
I'm going to deny the motion.
The Eleventh Circuit is pretty - although in the Young case they
ended up talking about exigent circumstances, and I do not find that
here, they still refer to the dissenting opinion of Ybarra and refer to
Gray, which dealt with searching a jacket. So I'm going to deny the
motion.
(RI-45 at 24)
IV. Discussion
In Terry v. Ohio, the Supreme Court held permissible under the Fourth
Amendment an officer’s patdown of persons he had reasonable articulable suspicion
were armed and posed a threat to the officer. 392 U.S. 1, 29-30, 88 S. Ct. 1868, 1884
(1968). The district court in this case made an express finding that the government’s
evidence did not establish the basis for a Terry patdown, stating that the officer
“didn’t frisk her until after she was handcuffed .. . .I haven’t heard of any perceivable
danger from the government’s proof.” (RI-45 at 21) The court then decided to
4
“scratch Terry ... [as] not applicable.” Id. at 22. The district court’s factual findings
were not clear error. Accordingly, the search of Rogers was not permissible under
Terry.
Appellee’s reliance on Young is unfounded as well. In Young, this Court
permitted the search of a purse due to exigent circumstances, which are not present
in this case. See Young, 909 F.2d at 443-44. As for the relationship test discussed in
dicta in Young, although we may choose to apply that test in a future case, the facts
of this case do not lend themselves to its application because the search here was of
a person rather than of the person’s effects. See id. at 444-45.
V. Conclusion
Thus, we REVERSE the district court's denial of Rogers’ Motion to Suppress
and REMAND the case to the district court for further proceedings consistent with
this opinion.
5