United States of America v. Kenneth Burton

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4465
KENNETH BURTON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-98-635)
Argued: May 3, 2000
Decided: September 27, 2000
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
_________________________________________________________________
Vacated and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Traxler joined. Judge King wrote a dis-
senting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Leesa Washington, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. E. Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for Appellee. ON
BRIEF: J. Rene Josey, United States Attorney, Greenville, South
Carolina, for Appellee.
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OPINION
NIEMEYER, Circuit Judge:
Kenneth Burton challenges the district court's denial of his motion
to suppress evidence of a handgun that was discovered when a police
officer reached inside Burton's coat during a "police-citizen encoun-
ter." The officer justified his search because Burton refused to
respond to the officer's questions and to remove his hand from inside
his coat, making the officer "uneasy." We find that the officer's
search was not supported by a reasonable suspicion of criminal activ-
ity and therefore constituted an illegal search. Accordingly, we vacate
Burton's conviction based on the evidence thus obtained and remand.
I
On the afternoon of March 4, 1998, in Laurens, South Carolina,
Kenneth Burton was standing at a pay telephone outside the Green
Street Mini-Mart when he was approached by four police officers
who were in the area serving outstanding warrants. When one of the
officers, Detective Tracy Burke, identified himself as a policeman and
requested identification from Burton, Burton did not respond. The
officers repeated their request several times, but Burton remained
mute. The officers then asked Burton to remove his right hand from
his coat pocket. When Burton failed to do so, the officers repeated
their request. Burton still did not respond.
While the other officers remained facing Burton, Officer Burke
moved behind Burton, reached around him, thrust his hand into Bur-
ton's coat, and grabbed his right hand. Burton resisted, and a struggle
ensued, during which the officers wrestled Burton to the ground.
While on the ground, Officer Burke claims that Burton "raised his left
side of his body up" and pointed a handgun at Officer Burke, who
was lying on top of him. Burton squeezed the trigger three or four
times, but the gun was jammed and did not fire. The officers subdued
Burton and removed the weapon.
Burton was indicted for unlawful possession of a firearm by a
felon, in violation of 18 U.S.C. § 922(g). He moved to suppress the
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firearm as the fruit of an illegal search. At the evidentiary hearing
before the district court, Officer Burke testified that at the time he
approached Burton, he had no reason to suspect that Burton was
engaged in criminal activity, but Burton's refusal to remove his hand
from his coat made Officer Burke feel "uneasy about our safety being
there with him with his hand and no response, you know, towards us."
Officer Burke thought that Burton "possibly had a weapon in his
pocket or in his hand or in his coat that he was holding on to. It could
have been narcotics or maybe [an] alcoholic beverage or something."
The district court denied Burton's motion to suppress, finding that the
incident was "more in the light of a police-citizen encounter" and that
"the officers were entirely within their rights not only to engage in the
encounter, but then to take precautionary measures which they took."
A jury subsequently convicted Burton, and the district court sen-
tenced him to 115 months imprisonment. Burton's appeal is limited
to review of the district court's order denying his suppression motion.
II
Burton contends that his Fourth Amendment rights were violated
when Officer Burke reached inside Burton's coat because this search
was supported neither by probable cause nor by the lower standard of
reasonable suspicion. Burton points out that Officer Burke conceded
that the officers were unaware of any existing outstanding warrant
against him, that Burton "exhibited no evasive or suspicious behavior
and [that] there was no indication that he was at the time engaging in
any illegal activity." Burton argues that his"refusal to comply with
the orders of the police and his decision not to respond to the ques-
tions and commands of the police was in direct response to the illegal
actions of the police and cannot serve as a basis for suspicion."
The government argues that during the contact between the officers
and Burton, which they characterize as a "police-citizen encounter,"
the officers acted properly, out of concern for their safety, in deter-
mining what Burton had in his pocket. They argue, however, that
"Burton chose to stay in a position and act in a way which threatened
the safety of both the officers and the public." They maintain that
"[o]nly after Burton refused to take his hand away from his pocket did
Officer Burke reach around Burton and try to determine what was in
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Burton's pocket." They also state that when officers confront citizens
on the street, they may "conduct a limited search for weapons when
a reasonably prudent officer in similar circumstances would believe
that his safety or the safety of others was in danger."
We are thus presented with the question whether, in the circum-
stances presented, Officer Burke's concern for his own safety, as well
as the safety of his fellow officers, justified his decision to reach
inside Burton's coat during what was, concededly, a routine "police-
citizen" encounter.
The applicable principles are well established."Law enforcement
officers do not violate the Fourth Amendment by merely approaching
an individual on the street or another public place." Florida v. Bost-
ick, 501 U.S. 429, 434 (1991). Police may question citizens without
implicating Fourth Amendment protections. See INS v. Delgado, 466
U.S. 210, 216 (1984). Indeed, officers remain free to seek cooperation
from citizens on the street without being called upon to articulate any
level of suspicion or justification for their encounters. The authority
of police officers to initiate such "police-citizen encounters" is the
same as, but no greater than, the authority of an ordinary citizen to
approach another on the street and ask questions. By the same token,
the citizen encountered in this manner has the "right to ignore his
interrogator and walk away." Terry v. Ohio , 392 U.S. 1, 33 (1968)
(Harlan, J., concurring); see also id. at 34 (White, J., concurring)
("There is nothing in the constitution which prevents a policeman
from addressing questions to anyone on the streets. Absent special
circumstances, the person . . . may refuse to cooperate and go on his
way"); United States v. Sullivan, 138 F.3d 126, 132 (4th Cir. 1998)
("[So] long as a person remains at liberty to disregard a police offi-
cer's request for information, no constitutional interest is implicated"
(quoting United States v. Black, 675 F.2d 129, 134 (7th Cir. 1982))).
Only when an officer, "by means of physical force or show of author-
ity, has in some way restrained the liberty of a citizen may we con-
clude that a `seizure' has occurred." Terry, 392 U.S. at 19 n.16. Thus,
police officers may not place their hands on citizens "in search of
anything" without "constitutionally adequate, reasonable grounds for
doing so." Sibron v. New York, 392 U.S. 40, 64 (1968).
A police officer may elevate a police-citizen encounter into an
investigatory detention only if the officer has a"reasonable suspicion
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supported by articulable facts that criminal activity `may be afoot,'
even if the officer lacks probable cause." United States v. Sokolow,
490 U.S. 1, 7 (1989). Reasonable suspicion is something more than
an "inchoate and unparticularized suspicion or`hunch,'" Terry, 392
U.S. at 27, and it is the government's burden to articulate facts suffi-
cient to support reasonable suspicion, see Brown v. Texas, 443 U.S.
47, 52 (1979); see also Florida v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion).
Once an officer has a basis to make a lawful investigatory stop, he
may protect himself during that stop by conducting a search for weap-
ons if he "has reason to believe that the suspect is armed and danger-
ous." Adams v. Williams, 407 U.S. 143, 146 (1972). But an officer
may not conduct this protective search for purposes of safety until he
has a reasonable suspicion that supports the investigatory stop:
[P]olicemen have no more right to "pat down" the outer
clothing of passers-by, or persons to whom they address
casual questions, than does any other citizen. . . .[I]f the
frisk is justified in order to protect the officer during an
encounter with a citizen, the officer must first have constitu-
tional grounds to insist on an encounter, to make a forcible
stop. 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 protection, he must first have a right not to avoid him
but to be in his presence. That right must be more than the
liberty (again, possessed by every citizen) to address ques-
tions to other persons, for ordinarily the person addressed
has an equal right to ignore his interrogator and walk away;
he certainly need not submit to a frisk for the questioner's
protection.
Terry, 392 U.S. at 32-33 (Harlan, J., concurring) (emphases added);
see also Adams, 407 U.S. at 146 ("So long as the officer is entitled
to make a forcible stop, and has reason to believe that the suspect is
armed and dangerous, he may conduct a weapons search limited in
scope to this protective purpose" (emphasis added) (footnote omit-
ted)).
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In short, an officer may encounter citizens and attempt to question
them without implicating the Fourth Amendment. But during such
police-citizen encounters, an officer is not entitled, without additional
justification, to conduct a protective search. To conduct such a protec-
tive search, an officer must first have reasonable suspicion supported
by articulable facts that criminal activity may be afoot.
In this case, it is undisputed that at the time the officers approached
Burton and began asking him questions, they did not have any reason
to suspect that he was engaged in criminal activity. Officer Burke tes-
tified that there was no reason to believe "that Mr. Burton was
involved in any kind of disturbance or any type of illegal activity."
Burton was "just standing at a telephone booth," and the officers were
"just out looking for people or several people with outstanding bench
warrants." As the officers approached Burton, all he did was to con-
tinue standing as he was and refuse to answer questions. Officer
Burke explained that Burton's refusal to answer the officers' ques-
tions or to comply with their requests that he remove his hand from
his coat pocket made Burke feel "uneasy about our safety." But before
Officer Burke was entitled to allay his safety concerns and conduct
a protective search, he had to be presented with objective facts that
would justify an investigatory Terry stop-- a reasonable suspicion
that a crime had been committed or that criminal activity was taking
place. In the absence of reasonable suspicion, the officer's alternative
was "to avoid a person he considers dangerous." Terry, 392 U.S. at
32.
In asserting that officers are entitled, during a police-citizen
encounter, to conduct a limited search for weapons when a reasonable
officer in similar circumstances would believe that his safety was in
danger, the government misconstrues the relevant principles of Fourth
Amendment jurisprudence. In the language of the Supreme Court,
Burton had a "right to go about his business or to stay put and remain
silent in the face of police questioning," Illinois v. Wardlow, 120 S.
Ct. 673, 676 (2000), and an individual's "refusal to cooperate, without
more, does not furnish the minimal level of objective justification
needed for detention or seizure," Florida v. Bostick, 501 U.S. 429,
437 (1991); see also United States v. Flowers , 912 F.2d 707, 712 (4th
Cir. 1990) (noting that a defendant has "the right to refuse to speak
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with . . . officers, who in turn possess no right to detain citizens who
decline to talk or otherwise identify themselves").
There is no evidence in the record that Burton made any moves as
Officer Burke approached. He simply continued to stand by the tele-
phone booth with his hand in his pocket. He did refuse to talk with
the policemen and to remove his hand from his pocket, but something
more is required to establish reasonable suspicion that criminal activ-
ity is afoot. And in the absence of reasonable suspicion, an officer
may not frisk a citizen merely because he feels uneasy about his
safety. We therefore conclude that Officer Burke's reaching inside
Burton's coat was an unlawful search, and the handgun discovered as
a result of this search must therefore be suppressed.
Accordingly, we vacate Burton's judgment of conviction and
remand for further proceedings not inconsistent with this opinion.
VACATED AND REMANDED
KING, Circuit Judge, dissenting:
With all respect to my distinguished colleagues in the majority, I
must dissent.
Not all police-citizen encounters amount to seizures within the
meaning of the Fourth Amendment. See Florida v. Bostick, 501 U.S.
429, 434 (1991) (seizure does not occur simply because police officer
approaches individual and asks questions). Instead, a seizure occurs
only when the officer, by means of physical force or show of author-
ity, restrains the liberty of a citizen in such a way that a reasonable
person would believe he is not free to terminate the encounter. See
California v. Hodari D., 499 U.S. 621, 626-29 (1991). In other words,
an officer may, at any time, approach any individual to ask questions,
and no justification is required as long as a reasonable person would
believe he is free to walk away. As the Supreme Court made clear:
[E]ven when officers have no basis for suspecting a particu-
lar individual, they may generally ask questions of that indi-
vidual, ask to examine the individual's identification, and
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request consent to search his or her luggage, as long as the
police do not convey a message that compliance with their
requests is required.
Bostick, 501 U.S. at 434-35 (citations omitted).
While we review the district court's legal conclusions de novo, we
review its factual findings -- including a court finding that a law offi-
cer's fear was reasonable -- for clear error. United States v. Rusher,
966 F.2d 868, 873 (4th Cir. 1992). Officer Burke 1 needed no justifica-
tion to approach Burton, but there is no doubt that he later seized and
searched him. At this latter point, he needed reasonable suspicion --
proper justification -- for his actions.
Several important principles guide our review in this regard. For
example, if, during a consensual encounter, an officer becomes aware
of facts that justify a reasonable fear for his safety, that officer may
respond with a protective frisk to safeguard himself and others. As the
Supreme Court has recognized, an officer may conduct a reasonable
search if there is "reason to believe that he is dealing with an armed
and dangerous individual, regardless of whether he has probable
cause to arrest the individual for a crime." Terry v. Ohio, 392 U.S. 1,
27 (1968). See also United States v. Davis, 202 F.3d 1060, 1063 (8th
Cir. 2000) ("The danger to officer safety that justifies a protective
search may arise after a consensual encounter or investigative stop
has commenced."). Thus, our question is simple: Was Officer Burke
reasonable in his perception that Burton was armed and constituted a
safety threat? As Chief Judge Wilkinson has cogently observed,
courts make this commonsensical inquiry "crediting the practical
experience of officers who observe on a daily basis what transpires
on the street." United States v. Lender, 985 F.2d 151, 154 (4th Cir.
1993), quoted in United States v. Brugal, 209 F.3d 353, 359 (4th Cir.
2000) (en banc). More importantly for the purposes of this appeal, the
district court has already found two vital facts: first of all, Officer
Burke had subjective fear and, secondly, his fear was objectively rea-
sonable.
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1 I use "Officer Burke" to refer both to Officer Burke individually and
to all of the officers collectively.
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To the extent the majority has concluded that the district court
clearly erred in these findings, I disagree. Officer Burke's testimony
was specifically credited by the district court, and much of that testi-
mony related to his belief that he was in danger. This belief was
entirely sufficient to justify all that occurred thereafter.2 When Officer
Burke was asked what he thought Burton had in his pocket, he
responded:
My opinion was he possibly had a weapon in his pocket or
in his hand or in his coat that he was holding on to.
J.A. 21. While Burke acknowledged, "It could have been narcotics or
maybe [an] alcoholic beverage or something," id., his opinion was
prophetically correct. Burton in fact possessed a loaded handgun, in
his pocket. And luckily for the officers, it misfired.
Had Burton simply failed to respond to Officer Burke's inquiries,
I might be constrained to agree with the majority. However, Burton
did more: He held his hand close to his chest -- inside his coat --
and refused to remove it. J.A. 20, 31. And Burton's non-response to
requests that he remove his hand from his coat constituted -- credit-
ing the practical experience of the officers -- an entirely reasonable
safety concern.
When Officer Burke directed Burton, "Remove your hand from
your pocket," the clear message from Officer Burke was, "I feel
threatened by the position of your hand." The finding that Officer
Burke's fear for his safety was reasonable is the paradigmatic circum-
stance in which we should defer to a district court. What constitutes
a "threat" is a classic factual inquiry that depends on the time, place,
and other circumstances surrounding an incident. I will not, in these
circumstances, vote to disturb that finding.
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2 Moreover, Officer Burke's testimony encompassed a belief that crimi-
nal activity was afoot. In South Carolina, the unauthorized possession of
a pistol, as well as the carrying of a concealed weapon, are separate vio-
lations of the criminal statutes. See S.C. Code Ann. §§ 16-23-20, -460
(Law. Co-op. 1976 & Supp. 1999).
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We all strongly support the Constitution and its Fourth Amend-
ment. And we abhor violations of its strictures. However, the Consti-
tution does not mandate our loyal public servants acting with
trepidation in the face of danger, such that they may be needlessly
sacrificed or injured in their efforts to protect the public and uphold
the rule of law.
I dissent.
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