United States v. Melvin Dortch , 868 F.3d 674 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3178
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Melvin M. Dortch
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 11, 2017
Filed: August 18, 2017
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Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
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RILEY, Circuit Judge.
Melvin Dortch pled guilty to possessing a gun as a felon, see 18 U.S.C.
§ 922(g)(1), reserving the right to challenge the legality of the police pat-down that
led to his arrest and prosecution. That challenge is now before us. See 28 U.S.C.
§ 1291 (appellate jurisdiction). We hold the pat-down was constitutional, and the
district court1 was right not to suppress the evidence developed from it.
I. BACKGROUND
In the spring of 2015, members of the South Family gang moved into an
Omaha apartment building claimed by the Hilltop Crips. “[F]riction” resulted,
drawing the attention of the Omaha Police Department’s gang unit. Officers in the
unit received a report of shots fired in the area and were briefed about three instances
of people being caught possessing guns illegally nearby, all four incidents occurring
within the previous three weeks. All three guns were recovered from vehicles after
the police observed traffic violations in front of the apartment building.
On June 4, around 7:30 in the evening, two gang-unit police officers and a U.S.
Marshal, on patrol in an unmarked vehicle, decided to drive past the building. When
they turned onto the block, the officers saw a car and a minivan stopped side by side.
Both vehicles were facing them, with the car on the officers’ left, in its proper lane,
and the minivan on their right. As the officers approached, the car pulled in front of
the minivan, putting both vehicles on the wrong side of the street. The minivan was
also parked too far from the curb. Dortch was in the middle of the street, leaning into
the minivan’s passenger-side window.
The officers stopped and got out. They did not turn on their siren or emergency
lights. Omaha police officer Mike Sundermeier walked toward Dortch while the
others went to talk to the occupants of the car. Officer Sundermeier was wearing a
tactical vest with “Police” printed on the front. He did not otherwise identify himself,
issue any directions, or draw his weapon. As Officer Sundermeier approached,
1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska, adopting the findings and recommendation of the
Honorable F.A. Gossett III, United States Magistrate Judge for the District of
Nebraska.
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Dortch looked at him over his shoulder, made eye contact, looked back into the
minivan, put a cell phone on the passenger seat, and, in Officer Sundermeier’s words,
“pressed the front of his body up against the van.” Dortch was wearing what Officer
Sundermeier described as a “Carhartt-type coat,” by which he meant a heavy canvas
insulated winter coat.
When Officer Sundermeier was several yards away, he asked Dortch why he
was standing in the road. Dortch turned his head slightly toward Officer Sundermeier
and said “he was talking to his girlfriend.” Dortch then turned back and continued
his conversation. He remained leaning against the minivan.
Officer Sundermeier stopped a few feet from Dortch. By then, Officer
Sundermeier later testified, he was worried Dortch might be armed. His concern was
based on having encountered Dortch near the contested apartment building, the fact
Dortch wore a “bulky” coat—the sort of clothing Officer Sundermeier had known
people to hide things in—and kept his body pressed against the minivan, and Dortch
having “freed his hands” by putting down the phone. Officer Sundermeier asked
Dortch if he had a gun and Dortch said no, yet Officer Sundermeier told Dortch he
was going to pat him down anyway. During the pat-down, Officer Sundermeier felt
something heavy in Dortch’s lapel pocket. Dortch then said “it’s in my pocket.”
Officer Sundermeier handcuffed Dortch, looked in his coat, and found a pistol.
Dortch was arrested and eventually indicted on the felon-in-possession count.
He moved to suppress the gun and statements he made under questioning. After an
evidentiary hearing, the magistrate judge recommended denying the motion. The
district court agreed. Dortch then entered his conditional guilty plea.
II. DISCUSSION
There is no dispute about the facts of what happened leading up to Officer
Sundermeier finding the gun in Dortch’s pocket. Whether those facts required
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suppression of the resulting evidence is a legal determination we review de novo,
“giv[ing] due weight to inferences drawn from th[e] facts by resident judges and local
law enforcement officers.” Ornelas v. United States, 517 U.S. 690, 699 (1996).
A. Walk Up
Dortch argues his interaction with Officer Sundermeier was a “seizure”
implicating the Fourth Amendment from the start, even before the pat-down. “‘[A]
person has been “seized” within the meaning of the Fourth Amendment only if, in
view of all the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.’” United States v. McKines, 933 F.2d
1412, 1415 (8th Cir. 1991) (en banc) (alteration in original) (quoting United States
v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.)). In Dortch’s view,
any reasonable person in his place would have perceived an armed police officer
walking up and asking what he was doing as effectively “a demand or an accusation,”
not an invitation to an optional conversation he could decline. That natural
impression was borne out, according to Dortch, by the fact Officer Sundermeier did
not leave him alone even though, in the few seconds between the initial contact and
the pat-down, Dortch gave every possible indication he did not want to talk—he
answered curtly, turned away, and kept talking to someone else.
We disagree with Dortch’s characterization. To start, the suggestion that
Dortch clearly, if implicitly, communicated he was done voluntarily interacting with
Officer Sundermeier is in some tension with the fact that when Officer Sundermeier
followed up with a second question—whether Dortch had a gun—Dortch again
answered. Admittedly, a civilian confronted by a police officer might reasonably find
it hard to refuse to answer that particular question, so we do not read too much into
this detail. The more important point is that the law is clear “not all personal
intercourse between policemen and citizens involves ‘seizures’ of persons. Only
when the officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”
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Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Dortch makes no claim that Officer
Sundermeier used or threatened physical force when he first approached. Nor does
Dortch identify any show of authority by Officer Sundermeier beyond that inherent
in his badge and (holstered) gun. If that were enough to make an encounter with the
police nonconsensual, the black-letter rule that “a seizure does not occur simply
because a police officer approaches an individual and asks a few questions,” Florida
v. Bostick, 501 U.S. 429, 434 (1991), would be a nullity.
Simply put, we have repeatedly found no Fourth Amendment seizure in
circumstances where a reasonable person would have felt at least as much pressure
to respond to police questioning as someone in Dortch’s position. See, e.g., United
States v. Hayden, 759 F.3d 842, 845, 847 (8th Cir. 2014) (officers pulled up next to
men walking on the sidewalk at night, shined a flashlight on them, loudly announced
“police,” and walked toward them); United States v. Stewart, 631 F.3d 453, 455-56
(8th Cir. 2011) (officer stopped behind a parked SUV, shined a spotlight on it, and
asked the driver what he was doing in the area). Dortch does not cite any contrary
precedent or explain how his case is meaningfully different from the others. We
therefore find no pre-pat-down seizure here.
B. Pat-Down
The pat-down itself, however, was unquestionably a search and seizure for
Fourth Amendment purposes. See Terry, 392 U.S. at 19. Such a “protective search,”
justified by a concern for the safety of the searching officer and others nearby, “is
constitutional . . . ‘where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot
and that the person[] with whom he is dealing may be armed and presently
dangerous.’” United States v. Davis, 202 F.3d 1060, 1061 (8th Cir. 2000) (quoting
Terry, 392 U.S. at 30); see also Terry, 392 U.S. at 32 (Harlan, J., concurring) (“Any
person, including a policeman, is at liberty to avoid a person he considers dangerous.
If and when a policeman has a right instead to disarm such a person for his own
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protection, he must first have a right not to avoid him but to be in his presence.”).
Dortch argues the government fails to identify “specific and articulable facts” that,
“taken together with rational inferences from those facts,” Terry, 392 U.S. at 21
(majority opinion), made it reasonable to suspect either that crime was afoot or that
Dortch was armed and dangerous.
First, as to what legal wrongdoing Officer Sundermeier reasonably could have
suspected, it is enough that the minivan and car were unquestionably parked illegally.
Dortch takes for granted that those infractions can have nothing to do with him,
because he “was neither driving nor riding in a vehicle when the officers first saw
him.” He cites no support, however, and we see no reason for such a bright-line rule.
This “reasonable-suspicion” analysis is to be conducted based on “the ‘totality of the
circumstances.’” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United
States v. Cortez, 449 U.S. 411, 417 (1981)). Although the scene the police came
upon in front of the apartment building clearly gave them no reason to suspect Dortch
of committing a traffic violation himself, the circumstances just as clearly indicated
Dortch might be involved with the ongoing illegality the police observed. Not only
was Dortch standing between the two illegally parked vehicles when the officers
arrived, he was leaning into one and talking to the driver. Indeed, Dortch
significantly continued doing so during his initial interaction with Officer
Sundermeier. On these facts, we hold Officer Sundermeier could briefly stop Dortch
to investigate what was happening with the vehicles and his involvement with it.2 Cf.
2
Because Officer Sundermeier was entitled “to insist on an encounter” with
Dortch, Terry, 392 U.S. at 32 (Harlan, J., concurring), on the basis of the traffic
violations, we do not reach the government’s assertion that Officer Sundermeier also
could have stopped and questioned Dortch on the suspicion that Dortch might have
reached where he was by illegally walking in the street, see Neb. Rev. Stat. § 60-
6,156; Omaha, Neb., Mun. Code §§ 36-107, -112, or that he might have been illegally
soliciting from the driver of the minivan, see Neb. Rev. Stat. § 60-6,157; Omaha,
Neb., Mun. Code § 36-108. See also, e.g., United States v. Jones, 990 F.2d 405, 408
(8th Cir. 1993) (“Because we decide whether reasonable suspicion justifies a
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Maryland v. Wilson, 519 U.S. 408, 414-15 (1997) (holding police officers making a
traffic stop could order passengers out of the stopped car); United States v. Sanders,
510 F.3d 788, 790-91 (8th Cir. 2007) (extending Wilson to let a police officer order
a passenger back into the stopped car).
The second question is “whether a reasonably prudent [officer] in the
circumstances would be warranted in the belief that his safety or that of others was
in danger.” Terry, 392 U.S. at 27 (majority opinion). The heart of Dortch’s argument
here is his assertion that this case is indistinguishable from United States v. Jones,
606 F.3d 964 (8th Cir. 2010) (per curiam). In Jones, we upheld the suppression of a
gun Omaha police found when they stopped and frisked someone they thought looked
suspicious. See id. at 965. To explain their suspicion, the police pointed to the facts
that the defendant was walking “in a neighborhood considered to be a violent ‘hot
spot’” in a “high crime precinct,” was “wearing a long-sleeved hooded sweatshirt”
on a sunny 68-degree September afternoon, “‘continually watched the officers [while
they drove by on patrol] as if concerned that they would stop him,’” and was
“‘clutching the front area of his hoodie pocket with his right hand’” as he walked. Id.
at 965-66. We held the stop was improper, and the resulting evidence inadmissible,
because “‘[t]oo many people fit this description for it to justify a reasonable suspicion
of criminal activity.’” Id. at 967 (alteration in original) (quoting United States v.
Gray, 213 F.3d 998, 1001 (8th Cir. 2000)).
The government insists Jones “has no application” here because it was about
whether the police had reasonable suspicion to stop the defendant at all, not whether
they could pat him down in the course of a legal interaction. The distinction makes
no difference, however. The police in Jones stopped the defendant without
suspecting anything other than he was carrying a concealed gun illegally, so the
detention based on all the objective facts, we are not limited by the detaining officer’s
subjective opinions.”).
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propriety of the stop turned on the exact same question as the propriety of the pat-
down here: whether the police “lacked the requisite reasonable suspicion that [the
defendant] was carrying a concealed firearm in his hoodie pocket, as opposed to some
other object, or no object at all.” Id.; see also id. at 966 (“Here, in contrast to the vast
majority of cases in which protective frisks have been upheld, (i) the officers did not
have reasonable suspicion that [the defendant] was engaged in criminal activity other
than carrying a weapon . . . ; (ii) [the defendant] did not panic or flee when [an
officer] approached; and (iii) [the defendant] was forcibly detained and searched
before he said anything suspicious or incriminating.”). That the issue arose at a
slightly different stage in the analysis does not mean we can now simply ignore the
holding in Jones.
Notwithstanding the broad similarities, we discern several factual differences
between this case and Jones that together call for a different result. First, unlike in
Jones, the location where Officer Sundermeier encountered Dortch was not just a
neighborhood generally associated with violence and high crime rates. Cf. id. at 966.
It was a specific building known to be the subject of an active territorial dispute
between two gangs. The police knew shots had been fired (or at least reported fired)
nearby recently. In the same time frame, there had been three gun arrests outside the
building. In all three cases the guns were found in vehicles doing just what the
officers observed when they arrived on the scene here—violating traffic laws on the
block in front of the contested apartment building. Those circumstances provided a
significantly stronger and more particularized basis for Officer Sundermeier to be
concerned about the presence of a gun when he approached Dortch.
The details of the ensuing interaction, too, added to and reinforced Officer
Sundermeier’s suspicion. Start with Dortch’s coat. In Omaha at least, a winter coat
worn in June is significantly stranger—that is, significantly less likely to be “shared
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by countless, wholly innocent persons,” id. at 967—than a hoodie in September.3 We
think it was entirely reasonable for Officer Sundermeier to wonder why Dortch was
wearing something so conspicuously inappropriate for the weather. Particularly
given Officer Sundermeier’s knowledge that he was at the location of an ongoing
gang conflict and guns had recently been found in markedly similar situations, Officer
Sundermeier could reasonably draw on his training and experience to suspect Dortch
might be using the coat’s bulk to hide a weapon. Additional support for that
suspicion, also not present in Jones, came from the fact Dortch did not just happen
to be wearing something that made it hard to see if he was armed. Dortch responded
to the sight of an approaching police officer by actively moving in such a
way—pressing the front of his body against the minivan—as to further conceal what,
if anything, he had in his coat. Finally, we do not think it was unreasonable for
Officer Sundermeier, already justifiably concerned Dortch could be armed, to
attribute some potential significance to the fact Dortch’s other response to seeing him
approach was to put down his phone, thereby freeing his hands to reach for any
weapon he might be carrying.
Our case law is clear that these circumstances can all properly bear on whether
it was reasonable to suspect someone might be armed and dangerous. See, e.g.,
United States v. Bailey, 417 F.3d 873, 877 (8th Cir. 2005); United States v.
Buchannon, 878 F.2d 1065, 1067 (8th Cir. 1989). To be sure, several of the factors
Officer Sundermeier cited as contributing to his concerns—Dortch’s empty hands, for
example—hardly seem suspicious taken on their own. Yet Officer Sundermeier did
not view each circumstance on its own, and neither must we. Again, our review on
this issue looks to the totality of the circumstances, “allow[ing] officers to draw on
their own experience and specialized training to make inferences from and deductions
3
Officer Sundermeier testified Dortch’s “Carhartt-type” coat was “not . . .
similar to” a sweatshirt or hoodie. Asked to elaborate, Officer Sundermeier
explained: “The Carhartt’s made out of a heavy canvas material. It’s insulated. It’s
got a hood and a zipper on the front.”
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about the cumulative information available to them.” Arvizu, 534 U.S. at 273. There
is no place in this analysis for a “‘divide-and-conquer’” approach that would isolate
each cited factor and disregard it if a court could “conceive of [an] innocent
explanation[].” Stewart, 631 F.3d at 459 (quoting Arvizu, 534 U.S. at 274).
Nor is it overly surprising or problematic that the outcome of our totality-of-
the-circumstances review is not the same in this case as in Jones. As the Supreme
Court has explained, “because the mosaic which is analyzed for a reasonable-
suspicion . . . inquiry is multi-faceted, ‘one determination will seldom be a useful
“precedent” for another.’” Ornelas, 517 U.S. at 698 (quoting Illinois v. Gates, 462
U.S. 213, 238 n.11 (1983)); see also Arvizu, 534 U.S. at 276 (“[A] totality of the
circumstances approach may render appellate review less circumscribed by precedent
than otherwise.”). In the context of a “commonsense, nontechnical” standard like
“reasonable suspicion,” which must be evaluated in light of the whole mass of facts
and circumstances present in a given situation, Ornelas, 517 U.S. at 695, it is natural
for cases that resemble each other in certain ways or at a high level of generality to
come out differently as a result of key details that weigh differently in one than in the
other. Cf., e.g., McKines, 933 F.2d at 1417-19 (overruling a line of decisions that had
suggested a bright-line test for determining when a drug-interdiction officer’s
interaction with a traveler at an airport rose to the level of a Fourth Amendment
seizure, because “‘[e]ven in the discrete category of airport encounters, there will be
endless variations in the facts and circumstances’” and “[r]eference to factors relied
on in some other case may be useful, but not determinative” (quoting Florida v.
Royer, 460 U.S. 491, 506 (1983))).
So it is with this case and Jones. To recapitulate, the short stretch of street
where Officer Sundermeier encountered Dortch had a more specific and direct
connection to guns (with recent reports of gunshots) than the neighborhood-wide
“‘hot spot’” at issue in Jones; Dortch’s heavy coat was markedly more unseasonable
in June, and thus unusual and suspicious, than the Jones defendant’s sweatshirt in
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September; Dortch’s apparent association with the two illegally stopped vehicles,
which resembled those in which guns had been found in the same location not long
before, had no analogue in Jones; and Dortch’s movements, suggestive of
concealment and preparation for action, were more threatening than the protective
“clutching” the police observed in Jones. Jones, 606 F.3d at 966-67. To hold that a
police officer’s concern for safety was reasonable in the one case but not the other is
not to make the law “unknowable” or “unworkable,” as Dortch warns. Rather, “it is
the nature of the totality[-of-the-circumstances] rule.” Arvizu, 534 U.S. at 276.
III. CONCLUSION
Officer Sundermeier did not search or seize Dortch in a constitutional sense
until the pat-down, which was justified by reasonable suspicion. There was no need
to suppress the resulting evidence. Dortch’s conviction is affirmed.
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