United States v. George David McManus

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No. 95-1794
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
George David McManus, *
*
Appellant. *
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Submitted: September 12, 1995
Filed: November 30, 1995
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Before WOLLMAN, MAGILL, and LOKEN, Circuit Judges.
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WOLLMAN, Circuit Judge.
George McManus entered a conditional plea of guilty to one count of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 84 months' imprisonment and fined $10,000.
On appeal, McManus contends that the district court1 should have granted
his motion to suppress evidence. We affirm.
I.
Because the identification number (VIN) listed on the inspection
sticker on his vehicle differed from the VIN contained on the registration
slip and the car itself, McManus was unable to re-register his vehicle.
A difference in a VIN can occur in two situations: (1) when a
typographical error has been made or (2)
1
The Honorable Jimm Larry Hendren, United States District
Judge for the Western District of Arkansas.
when the car has been stolen. When there is a problem with a VIN,
licensing officials refer the matter to the state police for investigation.
A form correcting the VIN is issued only after the police are satisfied
that the problem is merely technical.
For the purpose of satisfying the Arkansas Department of Revenue's
registration requirements, McManus went to the Arkansas State Police
Headquarters in Clarksville on July 6, 1994, to verify the VIN on his
vehicle. Corporal Jerry Roberts assisted McManus in performing the VIN
verification. At Roberts' request, McManus produced the registration,
which listed him as the owner of the vehicle. Roberts then verified that
the VIN on the registration matched the VIN on the car. After verifying
the match, Roberts requested McManus's driver's license for proof of
identification. Roberts then ran three computer checks. First, he ran a
registration check on the vehicle's VIN and on the registration itself to
determine whether the vehicle was stolen. Next, he ran a driver's license
check to determine whether McManus's license was current. Finally, he ran
a National Crime Information Center (NCIC)2 check to further investigate
the possibility that the car was stolen, a procedure that he routinely
conducted in the course of verifying a VIN even though there was no written
policy requiring that that be done.
At some point during the foregoing sequence of events, McManus
started to leave the station in order to retrieve additional information
regarding the registration from his vehicle. Roberts, however, told him
to come back in and, in McManus's words, "have a seat," with the
indication, again in McManus's words, that "this wouldn't take too long."
The VIN and driver's license checks
2
The National Crime Information Center (NCIC) is a department
within the Federal Bureau of Investigation which provides
computerized information to law enforcement concerning the vehicle
identification numbers of stolen vehicles, individual criminal
records, and outstanding warrants.
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cleared, but the NCIC search indicated that McManus was wanted for a felony
probation violation. Roberts confirmed that the warrant was valid and
placed McManus under arrest. During the ensuing inventory search of
McManus's vehicle, police officers discovered various firearms.
McManus filed a motion to suppress, contending that he was seized in
violation of the Fourth Amendment when he was asked to turn over his
driver's license and told to take a seat. He also contended that the NCIC
search of his criminal history violated his Fourth Amendment rights. The
district court denied the motion, adopting the magistrate judge's3 report
and recommendation to that effect.
II.
We examine the district court's denial of the motion to suppress
under the clearly erroneous standard. United States v. Delaney, 52 F.3d
182, 186 (8th Cir.), cert. denied, 116 S. Ct. 209 (1995). We review de
novo the underlying question of whether a seizure has occurred and whether
the Fourth Amendment has been violated. Id.McManus first argues that he was unlawfully detained by Roberts when
he turned over his driver's license and was told to have a seat. The
magistrate judge found that no seizure occurred because (1) the initial
contact between McManus and Roberts was consensual; (2) Roberts merely
requested -- rather than demanded -- the driver's license; and (3) Roberts
did not use coercive tactics.
3
The Honorable Beverly R. Stites, United States Magistrate
Judge for the Western District of Arkansas.
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Not every encounter between a law enforcement official and a citizen
involves a seizure. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). No seizure
occurs when a police officer simply questions an individual or asks to see
his identification, so long as the officer does not send a message that the
individual must comply with his request. Florida v. Bostick, 501 U.S. 429,
434 (1991). See also United States v. McKines, 933 F.2d 1412, 1419 (8th
Cir.) (en banc), cert. denied, 502 U.S. 985 (1991) (focusing on the nature
of police officer's questioning to determine whether a seizure had
occurred).
We consider the totality of the circumstances in determining whether
"the police conduct would have communicated to a reasonable person that he
was not free to decline the officer's request or otherwise terminate the
encounter." United States v. Angell, 11 F.3d 806, 809 (8th Cir. 1993),
cert. denied, 114 S. Ct. 2747 (1994). In United States v. Mendenhall, 446
U.S. 544, 554 (1980), the Supreme Court cited several circumstances that
might evidence a seizure: "[T]he threatening presence of several officers,
the display of a weapon by an officer, some physical touching of the person
of the citizen, or the use of language or tone of voice indicating that
compliance with the officer's request might be compelled."
It was McManus who brought about his contact with the police.
Roberts' request to see McManus's driver's license was part of the routine
followed in verification situations. McManus, by his own free will, handed
over his license. Roberts did not threaten McManus or use any coercive
tactics. He did not display his weapon or physically detain Roberts. See
United States v. Archer, 840 F.2d 567, 572 (8th Cir.), cert. denied, 488
U.S. 941 (1988) (holding that no seizure occurred when officers merely
approached defendant and requested identification since officers did not
use coercive tactics, display weapons, or physically restrain defendant).
Roberts made a simple, good faith inquiry to ascertain
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whether McManus was the owner of the vehicle, the failure to do which could
well have constituted negligence in the performance of Roberts' duties.
Roberts' direction that McManus come back in and have a seat did not
transform the encounter into a seizure, for McManus was not told that he
could not leave the station. Admittedly, Roberts' statement could have
been expressed in more precatory terms, e.g., by being prefaced with "Would
you please," or some similar language. Nevertheless, we cannot conclude
that a reasonable person would have felt compelled to remain in the station
based on this statement. See Angell, 11 F.3d at 809-10 (stating that
officer's statement to "Stay there" or "Hold it right there" did not
transform a consensual encounter into a seizure). Given these
circumstances, then, we hold that no seizure occurred.
III.
McManus next asserts that Roberts violated his Fourth Amendment
rights when he conducted a search of his criminal history through the use
of the NCIC computer data base. To preserve the integrity and privacy of
the information contained in the NCIC data base, the Federal Bureau of
Investigation allows access only for criminal justice purposes, justice
employment, or security clearances. United States v. Pederson, 3 F.3d
1468, 1471 (11th Cir. 1993).
Roberts clearly had a legitimate criminal justice purpose in
accessing the NCIC. He stated that a discrepancy in the VIN raises a "red
flag" that a car may be stolen. Thus, he automatically checks the NCIC in
this type of situation. The undisputed purpose of the investigation was
to verify the VIN. To do this, Roberts had to determine that the car had
not been stolen.
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McManus argues that once the VIN and driver's license checks cleared,
Roberts had completed the investigation necessary to verify the VIN.
Roberts testified, however, that a VIN check alone is insufficient to
determine whether a car is stolen. For example, a car with an altered VIN
would not show up as stolen in the VIN data base. Similarly, a car whose
VIN has been replaced with that from a junked vehicle would not be listed.
Based on his experience, Roberts believed that the NCIC check was necessary
in order to thoroughly investigate the matter. By conducting an NCIC
check, he could determine, for example, whether the person claiming
ownership of the vehicle had a record for stealing vehicles (although it
might seem counterintuitive that a person with a record of car thefts would
present himself at a police station to request assistance in verifying
vehicle registration, one might equally doubt that a person with an
outstanding warrant for felony probation violation would do the same).
Furthermore, the NCIC data base is commonly used in determining whether a
car has been stolen. See United States v. Harris, 528 F.2d 1327, 1330 (8th
Cir. 1975) (NCIC check justified when officer observed various scratches
and marks surrounding the VIN plate on car); United States v. Lopez, 777
F.2d 543, 546-48 (10th Cir. 1985) (NCIC check warranted when out-of-state
automobile was not registered in name of either passenger); United States
v. Diaz-Albertini, 772 F.2d 654 (10th Cir. 1985), cert. denied, 484 U.S.
822 (1987) (NCIC check authorized when driver's license and registration
did not match).
In addition, police frequently conduct NCIC checks during the course
of routine investigations. See United States v. Rubio-Rivera, 917 F.2d
1271, 1276 (10th Cir. 1990) (immigration agent authorized to conduct an
NCIC check as part of his normal inquiry at border checkpoint); United
States v. Fernandez, 18 F.3d 874, 877-78 (10th Cir. 1994) (during course
of routine traffic stop, officer may ask for a driver's license and vehicle
registration, and run a computer check) (citing United States v. Guzman,
864 F.2d 1512, 1519 (10th Cir. 1988)).
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We conclude that because Roberts' inquiry was directly related to the
scope of his investigation, he was justified in conducting an NCIC check.
Thus, no constitutional violation occurred even if the NCIC check
constituted a search within the meaning of the Fourth Amendment, a question
we need not decide in this case.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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