Officers Conducted Valid Terry Stop Even Though Guns Were Drawn

by | July 28, 2023

United States v. Childers, 2023 WL 4568831 (8th Cir. 2023)

Officers responded to a report of shots fired near a park in an isolated, wooded area along the Minnesota River on Black Dog Road. One caller reported that three males, two described as black and one as “lighter-skinned,” were shooting into the river. Another caller described the “white male” as in his late 20s and wearing a black shirt. The officers who knew the area testified the park was typically not very busy on Saturday mornings and they had anticipated being able to find the suspects seen in the area.

When the officers arrived, one officer saw three men matching the descriptions given by the 911 callers. The three men were leaving a wooded area and walking toward a parked vehicle. Officers approached the trio—comprised of two black men and Victor Lee Childers, a white man wearing a black shirt. The men got into a parked car. Officers approached the vehicle with guns drawn, following protocol for a “high-risk felony stop.” The officers ordered the men out of the vehicle one by one.

Childers, a convicted felon, sat in the driver’s seat. He opened the door and asked the officers why he was being stopped. An officer explained the 911 call; Childers exited the vehicle and officers handcuffed him. Officers then removed the other two men and handcuffed them as well. After all three men were handcuffed, officers placed them in separate police vehicles.

An officer told Childers he was going to frisk him. After beginning the pat-down search, the officer paused at Childers’ front-right pocket, having felt what he believed were bullets. He emptied the pocket, discovering a cell phone and a bandana wrapped around metallic objects. When the officer asked Childers if anything illegal was inside the bandana, Childers responded, “We just found this.” Childers admitted the bandana held bullets, but again claimed the men found the bullets.

“Probable cause that the vehicle contained evidence of criminal activity—here, the firearm used in the reckless discharge—has long been held to justify a warrantless search of the automobile and seizure of the contraband.”

The officers conducted a protective sweep of the car and quickly found the first of two handguns under the driver’s seat where Childers had been sitting. Childers was arrested and charged by indictment with being a felon in possession of a firearm and ammunition. Childers challenged the trial court’s denial of his motion to suppress the gun and bullets, claiming the high-risk felony stop protocol transformed the investigative stop from a Terry stop into a de facto arrest without probable cause. He also argued the pat-down search “exceeded the permissible scope and intensity” of a valid Terry stop. Finally, he claimed the search of the vehicle exceeded the scope of the protective sweep doctrine.

An arrest may occur even where the officer does not subjectively intend to arrest. The court cited several factors to consider in weighing whether a de facto arrest has occurred: “(1) the number of officers and police cars involved; (2) the nature of the crime and whether there is reason to believe the suspect might be armed; (3) the strength of the officers’ articulable, objective suspicions; (4) the erratic behavior of or suspicious movements by the persons under observation; and (5) the need for immediate action by the officers and lack of opportunity for them to have made the stop in less threatening circumstances.”

Seven officers responded to the shots fired call in three separate vehicles. The court opined this number of officers did not amount to “an excessive police presence given that an illegal firearm discharge had been reported involving three individuals in a public park.” It was reasonable for the officers to believe the men matching the description might be armed and had recently unlawfully fired guns. The officers’ suspicions were based on a 911 call from an identified eyewitness who reported potentially felonious behavior involving a gun. The officers’ suspicions were enhanced by seeing three men who met descriptions provided by at least two callers. Thus, the first, second and third factors favored the officers.

The court held the fourth factor “favors neither the officers nor Childers to any meaningful degree.” Though Childers initially questioned his detention, he obeyed the officers’ commands. On the other hand, the officers could not see inside the car and a reasonable officer would have ordered the occupants to get out.

The final factor—the need for immediate action—also fell in the officers’ favor. Citing the “obvious exigencies,” the court held, “The officers’ actions did not convert the valid Terry stop into an arrest.” The fact the officers drew and pointed guns did not automatically transform the investigative detention into an arrest. When officers have a reasonable belief a suspect is armed, drawing weapons may well be appropriate. Based on reports that callers had seen the men firing guns, the officers had a reasonable suspicion that at least one of the men was armed or that a firearm was in the car.

In Terry v. Ohio (392 U.S. 1 (1968)), the United States Supreme Court approved the stop-and-frisk practice. Generally known as the Terry frisk” doctrine, it is a very limited and narrow exception to the Fourth Amendment warrant requirement. An officer may conduct a pat-down frisk of a person only when the officer reasonably believes the person to be “armed and presently dangerous to the officer or others.” There is only one lawful purpose for a Terry frisk: to remove weapons that threaten the officer or others (Michigan v. Long, 463 U.S. 1032 (1983)). A Terry frisk is not intended to explore for drugs or other contraband. Addressing Childers’ challenge to the scope of the frisk, the court observed that the officer “testified that he immediately identified the items in Childers’s pocket as bullets.” When an officer is conducting a lawful frisk and the incriminating nature of the item is immediately apparent to the touch, the officer can lawfully access the item and seize it (Minnesota v. Dickerson, 508 U.S. 366 (1993)).

The court did not address Childers’ complaint about the scope of the protective sweep of the vehicle. A vehicle may be given a quick, cursory inspection for weapons, sometimes known as a “vehicle frisk,” when there is reasonable suspicion of weapons in the vehicle (Michigan v. Long). Rather than analyze the officers’ compliance with the protective sweep rules, the court held that the “lawful discovery and seizure of the bullets from Childers’s person” provided probable cause to believe Childers had committed a felony involving a firearm.

The court noted, “Probable cause that the vehicle contained evidence of criminal activity—here, the firearm used in the reckless discharge—has long been held to justify a warrantless search of the automobile and seizure of the contraband.” An officer may search a vehicle without a warrant if there is probable cause to believe it contains evidence or contraband. The officer may search anywhere a warrant could have authorized a search. The courts have adhered to this exception for years; when it was first allowed, the Ford Model T was still in production (Carroll v. United States, 267 U.S. 132 (1925)).

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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