United States v. Flatter

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30337
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00159-FVS
ANDREW MILTON FLATTER,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Chief Judge, Presiding
Argued and Submitted
June 5, 2006—Seattle, Washington
Filed August 9, 2006
Before: Robert R. Beezer, Richard C. Tallman, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
9157
UNITED STATES v. FLATTER 9159
COUNSEL
Jeffry K. Finer, Spokane, Washington, for the defendant-
appellant.
Stephanie J. Lister, Assistant United States Attorney, Spo-
kane, Washington, for the appellee.
OPINION
BYBEE, Circuit Judge:
Appellant Andrew Flatter was a postal service employee
suspected of stealing mail. Before questioning him, officers
conducted a pat-down search pursuant to Terry v. Ohio, 392
U.S. 1 (1968), in order to ensure officer safety. The officers
had no evidence that Flatter had a weapon; they conducted the
search because they were concerned that their questioning
might turn confrontational. The search revealed evidence of
Flatter’s guilt, which officers seized, and Flatter was charged
with mail theft. The district court found that the search was
lawful and, after a jury trial, Flatter was convicted and sen-
tenced to probation. He now appeals, challenging the admis-
sion of the evidence and other evidentiary rulings. Because
the officers had no reason to believe that Flatter was armed
or dangerous, the officers had no grounds for the search. We
9160 UNITED STATES v. FLATTER
reverse the ruling of the district court and vacate Flatter’s con-
viction.1
I. FACTS
Following a report by the Veterans’ Administration (“VA”)
that fourteen packages containing class II medications2 had
been lost, postal inspectors began to investigate the possibility
of mail theft at a postal facility in Spokane, Washington,
through which all of the lost packages had been routed. Postal
inspectors soon focused their attention on Andrew Flatter
after a cross-comparison of work schedules revealed that he
was among a handful of workers who had been present on
nearly all of the dates on which mail was lost.
The inspectors focused on Bay 32, which housed sorted
mail that was to be delivered to Coeur d’Alene, Idaho. The
mail in Bay 32 was in large, rectangular mesh boxes, some-
times referred to as “crab pots.” Flatter’s job was to drive a
“tug,” a motorized vehicle used to move the crab pots around
the facility. Because the mail in Bay 32 was already sorted,
there was no need for Flatter to have any contact with the mail
beyond loading the crab pot into the appropriate truck in the
loading bay.
The postal inspectors placed six decoy packages into two
of the crab pots in Bay 32. The decoys were placed on top of
the already-sorted mail so that they would be easily visible,
both to Flatter and to the inspectors, who were observing the
decoys by video camera. These decoys were white on the out-
side and gray on the inside, so that if someone were to tamper
with the package, the gray interior would become exposed
and the two contrasting colors would be easily visible.
1
Because we reverse on the ground that the pat-down search was unlaw-
ful, we do not consider Flatter’s other claims.
2
Most class two medications sent out by the VA are painkillers.
UNITED STATES v. FLATTER 9161
Flatter heightened the investigators’ suspicions by handling
the mail in the crab pots while he moved them onto the mail
truck bound for Coeur d’Alene. Investigators also saw Flatter
remove a white object from one of the crab pots as he was
pushing them onto the truck, but he then moved further inside
the mail delivery truck, placing him out of the inspectors’
view. Inspectors then observed Flatter emerge from the truck
and leave the area with his tug.
The postal inspectors then sought to retrieve their six decoy
packages from Bay 32’s crab pots, but they were only able to
locate five. They also noted that the five decoys they recov-
ered had been moved from the spots in which they had origi-
nally been placed.
Inspectors Schaap and Sheppard then summoned Flatter,
who was in the break room, to question him about the missing
decoy envelope. They questioned him briefly in the hallway,
and the inspectors found his responses to be evasive and
unsatisfying, so they asked Flatter to come with them to the
postal inspectors’ office for further questioning. Flatter
agreed, but requested that a union representative be present;
one was provided. When they had arrived at the office, the
inspectors told Flatter that he was not under arrest, and that
he was free to leave. The inspectors told Flatter that, in order
to ensure their own safety, they were going to pat him down
for weapons. The inspectors then asked the union representa-
tive whether he had weapons; he answered that he did not.
The inspectors later testified that they searched Flatter
because they thought the situation might turn confrontational
and the inspectors, Flatter, and the union representative were
meeting in a small room.
Inspector Sheppard then proceeded to pat down Flatter. To
facilitate the pat down, Sheppard had Flatter stand up. Shep-
pard stood behind Flatter while conducting the frisk. In the
course of the check for weapons, Sheppard noticed at least
half of an inch of white and gray plastic protruding from the
9162 UNITED STATES v. FLATTER
top of Flatter’s rear pocket. The inspector immediately sus-
pected that this was the missing decoy package. He therefore
removed it from Flatter’s pocket, placed it on the table, and
resumed searching Flatter for weapons. The envelope proved
to be the decoy.
Flatter was indicted on one count of mail theft in violation
of 18 U.S.C. § 1709. Flatter moved to suppress the envelope
on the ground that it had been obtained in violation of the
Fourth Amendment. He also made a motion to depose the
postal inspector witnesses. Both motions were denied. Flatter
was convicted after a jury trial and sentenced to three years’
probation and a $100 special penalty assessment. He now
appeals the district court’s denial of these two pre-trial
motions, as well as certain evidentiary rulings that the district
court made during his trial.
II. STANDARD OF REVIEW
We review a district court’s denial of a motion to suppress
de novo. United States v. Beardslee, 197 F.3d 378, 386 (9th
Cir. 1999). The trial court’s factual findings are reviewed for
clear error. United States v. Aukai, 440 F.3d 1168, 1171 (9th
Cir. 2006).
III. ANALYSIS
[1] In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court
considered what constitutes sufficient suspicion under the
Fourth Amendment to justify frisking an individual for weap-
ons. Citing “the . . . immediate interest of the police officer
in taking steps to assure himself that the person with whom
he is dealing is not armed with a weapon that could unexpect-
edly and fatally be used against him,” the Terry Court ruled
that a search for weapons need not be supported by probable
cause. Id. at 23, 27. The Court held that a search for weapons
is permissible “for the protection of the police officer, where
he has reason to believe that he is dealing with an armed and
UNITED STATES v. FLATTER 9163
dangerous individual.” Id. at 27; see also Minnesota v. Dick-
erson, 508 U.S. 366, 376 n.4 (1993); Ybarra v. Illinois, 444
U.S. 85, 92-93 (1979) (“The initial frisk of [the defendant]
was simply not supported by a reasonable belief that he was
armed and presently dangerous, a belief which this Court has
invariably held must form the predicate to a patdown of a per-
son for weapons.”); Adams v. Williams, 407 U.S. 143, 146
(1972) (“The Court recognized in Terry that . . . ‘[w]hen an
officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed
and presently dangerous to the officer or to others,’ he may
conduct a limited protective search for concealed weapons.”
(citation omitted)).
Inspector Sheppard, who searched Flatter for weapons, tes-
tified that he conducted the pat down search of Flatter out of
concern for officer safety. Sheppard stated that the interroga-
tion room was small, placing the two officers in close quarters
with Flatter and the union representative. He also stated that
he feared that the questioning was likely to become confronta-
tional, particularly because they suspected Flatter of a crime
instead of a lesser form of misconduct. Sheppard stated that,
in his experience, individual responses to such circumstances
vary dramatically, and that he therefore felt it was prudent to
insure that Flatter was not carrying any weapons. However,
Sheppard admitted that “[he] had no idea if [Flatter] had
weapons on him.” Based on these facts, the district court
upheld the weapons search.
These facts merely establish that if Flatter was armed, he
would be dangerous; nothing in the record suggests that there
was any reason to believe that Flatter actually was armed. Our
prior cases have identified a wide variety of factors that can
support a reasonable belief that an individual is armed. For
example, we have given significant weight to an officer’s
observation of a visible bulge in an individual’s clothing that
could indicate the presence of a weapon. See, e.g., United
States v. Alvarez, 899 F.2d 833, 835, 839 (9th Cir. 1990);
9164 UNITED STATES v. FLATTER
United States v. Allen, 675 F.2d 1373, 1383 (9th Cir. 1982);
United States v. Hill, 545 F.2d 1191, 1993 (9th Cir. 1976); cf.
United States v. Thomas, 863 F.2d 622, 629 (9th Cir. 1988)
(not finding reasonable suspicion that defendant was armed in
part because officers did not see any suspicious bulges in his
clothing). We have also considered sudden movements by
defendants, or repeated attempts to reach for an object that
was not immediately visible, as actions that can give rise to
a reasonable suspicion that a defendant is armed. See, e.g.,
United States v. Flippin, 924 F.2d 163, 164-66 (9th Cir.
1991); cf. Ybarra, 444 U.S. at 93 (not finding reasonable sus-
picion where defendant, “whose hands were empty, gave no
indication of possessing a weapon, made no gestures or other
actions indicative of an intent to commit an assault, and acted
generally in a manner that was not threatening”). We also
consider the nature of the crime suspected; indeed, some
crimes are so frequently associated with weapons that the
mere suspicion that an individual has committed them justi-
fies a pat down search. See, e.g., Terry, 392 U.S. at 28 (rob-
bery); Hill, 545 F.2d at 1193 (same); United States v.
$109,179 in U.S. Currency, 228 F.3d 1080, 1086 (9th Cir.
2000) (large-scale narcotics dealing); United States v. Post,
607 F.2d 847, 851 (9th Cir. 1979) (same); cf. United States v.
Mattarolo, 209 F.3d 1153, 1158 (9th Cir. 2000) (finding rea-
sonable suspicion, in part because nighttime burglary is a
crime frequently committed while armed); Thomas, 863 F.2d
at 629 (not finding reasonable suspicion, in part because
counterfeiting is not a crime frequently committed while
armed).
[2] Here, however, officers had absolutely no reason to
believe that Flatter was armed. They did not observe any
bulges in his clothing. Nothing in Flatter’s demeanor aroused
the officers’ concerns for their safety, or suggested that he
might be armed; he did not act in a threatening manner at any
time, nor were the officers aware of any past violent conduct.
Mail theft by postal employees is not a crime that is fre-
quently associated with weapons, such as robbery or large-
UNITED STATES v. FLATTER 9165
scale drug dealing. Nor does the record suggest that Flatter
had any idea he was under investigation; he was therefore no
more likely to have been armed that day than to have been
armed on any other work day. Because the officers had no
reason to suspect that Flatter was armed and dangerous, we
hold that the pat down violated the Fourth Amendment.
The government suggests in its brief that officers would
have discovered the envelope even without the frisk for weap-
ons because the parties were in close quarters and the enve-
lope was sticking out of Flatter’s rear pants pocket. The
record does not support this contention. Flatter’s vest
obscured his waistline, so that the envelope was not visible
until Flatter either lifted his arms pursuant to the search or the
officer lifted the vest to inspect his waistband for weapons.
Indeed, Flatter had already led the officers around the postal
facility for some time and neither officer had noticed the
envelope sticking out of Flatter’s pocket. The evidence thus
cannot be admitted under the inevitable discovery doctrine.
[3] Since the decoy envelope was found as a direct result
of the illegal weapons search, it must be suppressed as the
fruit of the poisonous tree.
IV. CONCLUSION
We hold that the postal inspector violated the Fourth
Amendment by frisking Flatter for weapons without a reason-
able belief that he was armed and dangerous. In light of our
holding, we do not consider Flatter’s other claims. Accord-
ingly, we reverse the judgment of the district court, vacate
Flatter’s conviction, and remand for a new trial. Conviction
VACATED; REVERSED and REMANDED.