United States of America v. Mario Joaquin Vite- Espinoza (02-5491); Jose Martinez-Rivera (02-5492)

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0300P (6th Cir.)
File Name: 03a0300p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO JOAQUIN VITE-
ESPINOZA (02-5491); JOSE
MARTINEZ-RIVERA (02-5492),
Defendants-Appellants.
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Nos. 02-5491/5492
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 01-00112—Todd J. Campbell, District Judge.
Argued: October 15, 2002
Decided and Filed: August 25, 2003
Before: BOGGS, SUHRHEINRICH, and CLAY, Circuit
Judges.
_________________
COUNSEL
ARGUED: Sumter L. Camp, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, Paul J.
Bruno, BRUNO, HAYMAKER & HEROUX, Nashville,
2 United States v. Vite-Espinoza,
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Nos. 02-5491/5492
Tennessee, for Appellants. Hilliard H. Hester, ASSISTANT
UNITED STATES ATTORNEY, Nashville, Tennessee, for
Appellee. ON BRIEF: Sumter L. Camp, FEDERAL
PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, Paul
J. Bruno, BRUNO, HAYMAKER & HEROUX, Nashville,
Tennessee, for Appellants. Hilliard H. Hester, ASSISTANT
UNITED STATES ATTORNEY, Nashville, Tennessee, for
Appellee.
BOGGS, J., delivered the opinion of the court, in which
SUHRHEINRICH, J., joined. CLAY, J. (pp. 14-21),
delivered a separate opinion concurring in the outcome
reached by the majority.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Defendants Mario Joaquin Vite-
Espinoza and Jose Martinez-Rivera appeal the district court’s
denial of their motion to suppress, on Fourth Amendment
grounds, firearms found in their possession and statements
they made as they were taken into custody. A joint federal,
state, and local police task force investigating the
counterfeiting of immigration and identification documents
executed a valid federal search warrant on a house in
Springfield, Tennessee, owned and occupied by a third party.
During the course of that raid, the defendants were found
outside the house, but on the premises. It emerged that the
defendants were aliens illegally in this country, the police
discovered a concealed handgun on Martinez-Rivera and
another concealed handgun in Vite-Espinoza’s truck in the
house’s driveway, and the defendants were taken into custody
of the Immigration and Naturalization Service (“INS”). After
denial of their motions to suppress the handguns, each
defendant pleaded guilty to being an illegal alien in
possession of a firearm, in violation of 18 U.S.C.

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§ 922(g)(5)(A), but reserved the right to appeal the district
court’s denial of the motion to suppress. It is this appeal that
is now before the court. We affirm.
I
On July 5, 2001, following up on intelligence that the house
was being used to produce and sell counterfeit immigration
documents and social security cards, as well as deal large
quantities of marijuana, the United States Secret Service
retrieved trash left for collection outside the house. In the
trash were found “stems, seeds and remnants of marijuana”
and Mexican birth certificates. On this evidence, a federal
search warrant was issued for the house. Prior to execution of
the warrant, the law enforcement agents involved, about
fifteen officers from the INS, the Secret Service, and
Tennessee state and local police agencies, agreed to question
all persons found on the premises regarding their immigration
status, on the basis that persons found in a location where
counterfeit immigration documents are dealt could reasonably
be suspected of being illegal aliens, and to perform Terry
stops-and-frisks, on the basis that persons involved in drug
deals are frequently armed and dangerous.
The police raided the house and executed the search
warrant that same day. Four men and a woman, among them
the defendants, were found in the back yard of the house and
immediately handcuffed and patted down. The pat-down of
Martinez-Rivera uncovered a handgun in his waistband. Vite-
Espinoza’s search uncovered no weapons, but the officers
took documents and a billfold from his pocket. Upon
questioning, both Vite-Espinoza and Martinez-Rivera
admitted to being in the country illegally. The officers also
found another handgun lying on the ground, which another of
the men present admitted dropping. At this point, the officers
decided to search the vehicles in the driveway of the house.
Under the floorboard of a truck owned by Vite-Espinoza, the
police discovered another handgun, which Vite-Espinoza
4 United States v. Vite-Espinoza,
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admitted to owning. The defendants were taken into custody
by the INS. James Grant, a Tennessee Highway Patrol officer
assigned to the raid, determined that Vite-Espinoza’s truck
was leased and that other vehicles on the premises also
registered to Vite-Espinoza had title and licensing
irregularities. Grant impounded the truck, took an inventory,
and returned it to the lien-holder. The search of the house
itself uncovered “several identification documents, [a]
Polaroid camera, a typewriter, . . . large quantities of
ammunition, . . . blank Mexican birth certificates,” and more
marijuana remnants, but no bulk marijuana.
On July 25, 2001, the defendants were indicted for being
illegal aliens in possession of a firearm, in violation of
18 U.S.C. § 922(g)(5)(A), possession of false social security
cards, in violation of 18 U.S.C. § 1028(a)(6), and using false
social security numbers, in violation of 42 U.S.C.
§ 408(a)(7)(b). After arraignment and unsealing of the search
warrant, the defendants moved to suppress the firearms, on
the grounds that the guns were seized without a warrant or an
applicable warrant-requirement exception. They also moved
to suppress their statements incident to arrest, on the ground
that they were products of the unconstitutional seizure. The
district court denied the motions to suppress, finding that
while the defendants and the truck were not covered by the
search warrant and there was insufficient evidence that the
defendants had consented to the search, the police performed
a valid Terry stop-and-frisk on the defendants and the gun in
the truck would inevitably have been discovered pursuant to
an inventory search of the truck following its impoundment
under a Tennessee statute. Subsequently, the defendants
pleaded guilty to the firearms charge in return for a dismissal
of the other charges, but reserved their right to appeal the
denial of their motions to suppress. Vite-Espinoza was
sentenced to ten months of incarceration, followed by two
years of supervised release, and Martinez-Rivera to twelve
months of incarceration, also to be followed by two years of
supervised release. Both timely appealed the denial of their

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motions to suppress to this court and we consolidated their
appeals.
II
The generally applicable principles of search and seizure
jurisprudence are well-known and settled. The United States
Constitution bars “unreasonable searches and seizures.” U.S.
Const. amend. IV. A stop for questioning is reasonable if the
police officer is “able to point to specific and articulable facts
which, taken together with rational inferences from those
facts, reasonably warrant that intrusion” as measured by an
objective standard. Terry v. Ohio, 392 U.S. 1, 21-22 (1968).
Moreover, when the 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,” the officer may conduct a search “limited to that
which is necessary for the discovery of weapons which might
be used to harm the officer or others.” Id. at 26-27. In
finding reasonable suspicion, “the totality of the
circumstances–the whole picture–must be taken into
account.” United States v. Cortez, 449 U.S. 411, 417 (1981).
“The purpose of this limited search is not to discover
evidence of crime, but to allow the officer to pursue his
investigation without fear of violence.” Adams v. Williams,
407 U.S. 143, 146 (1972).
The exclusionary rule bars the admission of items seized
during an unconstitutional search, Weeks v. United States, 232
U.S. 383, 398 (1914), and of testimony concerning
knowledge acquired during such a search, Silverman v.
United States, 365 U.S. 505, 509 (1961). However, “evidence
may be admitted if the government can show that the
evidence inevitably would have been obtained from lawful
sources in the absence of the illegal discovery.” United States
v. Leake, 95 F.3d 409, 412 (6th Cir. 1996) (citing Nix v.
Williams, 467 U.S. 431, 444 (1984)). “The burden of proof
is on the government to establish that the tainted evidence
6 United States v. Vite-Espinoza,
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‘would have been discovered by lawful means.’” Leake, 95
F.3d at 412 (quoting Nix, 467 U.S. at 444). “[T]he
government can meet its burden of showing that the tainted
evidence inevitably would have been discovered through
lawful means ‘by establishing that, by following routine
procedures, the police would inevitably have uncovered the
evidence.’” United States v. Kennedy, 61 F.3d 494, 500 (6th
Cir. 1995) (quoting United States v. Ramirez-Sandoval, 872
F.2d 1392, 1399 (9th Cir. 1989)).
However, as straightforward as the Terry standard is, its
application to the facts of a given case remains, outside the
limits of a few bright-line rules, to a considerable degree
indeterminate. The court faces a question of first impression
unless there is precedent finding reasonable suspicion in a
factual situation that in every relevant respect was no more
suspicious, or finding no such suspicion in a factual situation
that in every relevant respect was no less suspicious. See
Illinois v. Gates, 462 U.S. 213, 238 n.11 (1983) (stating that
in the course of adjudicating the existence of reasonable
suspicion, “one determination will seldom be a useful
‘precedent’ for another”). Given the near-infinite variety of
factual circumstances in which Terry stops-and-frisks occur,
it is unsurprising that neither party can present such
precedent, but that both must instead rely on cases with are
merely similar in one or more particular aspects.
In this context, we turn to the facts of the present case. As
the police entered the premises, they had reason to suspect, or
in some instances even probable cause to believe, that the
house was used as a factory of counterfeit immigration and
identification documents for Mexican nationals and for the
trafficking of marijuana. Furthermore, rational inferences
warranted reasonable suspicions that those encountered on the
premises would either be counterfeiters themselves or their
illegal alien customers, because legal residents have of course
little need for counterfeit documents, or that they would be
armed and dangerous, because drug traffickers tend to be so.

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Indeed, the court below made a finding of fact to that effect.
At this point the police encountered the defendants, both of
whom appeared to be of Hispanic ethnicity, in the back yard.
The court below and the United States rely primarily on
United States v. Bohannon, 225 F.3d 615 (6th Cir. 2000). In
Bohannon, while law enforcement agents were executing a
search warrant on a residence suspected of being used as a
methamphetamine laboratory, two men approached the
residence. Id. at 616. The law enforcement agents seized and
searched the men before they entered the residence, turning
up incriminating evidence. Ibid. We held that detention of
those entering such a premise was constitutional. Id. at 617
(expanding on Michigan v. Summers, 454 U.S. 692, 705
(1981) (permitting detention of occupants of a premise being
searched subject to a warrant)). See also Baker v. Monroe
Township, 50 F.3d 1186, 1192 (3d Cir. 1995). We reasoned
that most of the rationales underlying Summers, prevention of
flight if incriminating evidence is found and minimization of
risk of harm to the officers, were also present in the
circumstances of Bohannon, even if the third rationale of
Summers that the occupants would assist in the orderly
completion of the search was not. Bohannon, 225 F.3d at
616-17. See also Leveto v. Lapina, 258 F.3d 156, 167 n.5 (3d
Cir. 2001) (citing Bohannon for the proposition that “[a]
detention may be reasonable even if fewer than all of
[Summers] law enforcement interests are present”); Burchett
v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (holding “that
officers act within their Summers powers when they detain an
individual who approaches a searched property, pauses at the
property line, and flees when the officers instruct him to get
down” because while “this reaches beyond Summer’s
‘occupants’ language, it is consistent with the policies that
Summers has identified”). We held that even “the possible
danger presented by an individual approaching and entering
a structure housing a drug operation is obvious. In fact, it
would have been foolhardy for an objectively reasonable
officer not to conduct a security frisk under the
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circumstances.” Bohannon, 225 F.3d at 617 (quoting United
States v. Patterson, 885 F.2d 483, 485 (8th Cir. 1989)).
The defendants point out that the case at bar differs in that
they were not entering or leaving the searched residence but
were merely present in its backyard. Indeed, this
circumstance does render the inference of involvement with
the criminal activity inside the house weaker, but only slightly
so. Innocent individuals are not significantly more likely to
while away their hours in the backyard of a drug and
counterfeit document distribution facility than they are to
enter or to leave it. And in so far as their presence raises a
reasonable suspicion of involvement in criminal activity, the
rationales found sufficient in Bohannon, prevention of flight
and harm to officers conducting the search, are equally
applicable here.
The defendants cite numerous cases for the proposition that
the additional suspicious circumstances are insufficient to
justify a Terry stop-and-frisk. Merely observing a suspect
conversing with known narcotics addicts by itself is
insufficient to create reasonable suspicion. Sibron v. New
York, 392 U.S. 40, 63-64 (1968). “[M]ere propinquity to
others independently suspected of criminal activity does not,
without more,” give rise to a reasonable belief that the suspect
is armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 91-
93 (1979). “[W]hile the fact of companionship did not of
itself justify [a] frisk . . . , it is not irrelevant to the mix that
should be considered in determining whether the agent’s
actions were justified.” United States v. Bell, 762 F.2d 495,
498-99 (6th Cir. 1985). “The likelihood that any given person
of Mexican ancestry is an alien is high enough to make
Mexican appearance a relevant factor, but standing alone it
does not justify stopping all Mexican-Americans to ask if
they are aliens.” United States v. Brignoni-Ponce, 422 U.S.
873, 887-88 (1975). The “racially-biased assumption that . . .
a man of color wearing dreadlocks . . . must have been an
illegal alien from Jamaica” in combination with the “long-

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discredited drug source city rationale” was insufficient to
create reasonable, articulable suspicion. United States v.
Grant, 920 F.2d 377, 388 (6th Cir. 1990). Even if “the
totality of the circumstances [created] a reasonable basis for
suspecting that some roofers [in a town] might be illegal
aliens,” it did not by itself create reasonable suspicion that a
particular Hispanic roofer was an illegal alien. United States
v. Alarcon-Gonzalez, 73 F.3d 289, 293 (10th Cir. 1996). To
fairly quote these precedents is to refute the defendant’s
argument. All of these precedents merely hold that some
particular suspicious circumstances present here are by
themselves insufficient to create reasonable suspicion; none
of them hold that these circumstances are irrelevant or must
be disregarded; many of them hold that they are valid factors
in a determination of reasonable suspicion.
We hold that the combination of the close factual
resemblance to Bohannon and the additional suspicious
circumstances, in particular the defendants’ presence without
apparent lawful purpose outside the facility and their
appearance, was sufficient to create reasonable, articulable
suspicion. Therefore the police officers were permitted to
stop and frisk the defendants and the handgun found on
Martinez-Rivera was admissible, as the court below correctly
ruled. In addition, we note that the police discovered a
handgun on the ground, near the defendants and their
vehicles. The discovery of this gun was at best
contemporaneous with, and, more likely, subsequent to, the
search of the defendants. Hence its discovery cannot justify
a reasonable suspicion on the part of the police officers
conducting the search of the defendants. However, neither
can it be argued that the officers, had they not searched the
defendants, would have missed the handgun in plain view.
Once having discovered the dropped handgun, the officers
would most certainly have been justified in searching
everybody present, lest there be another handgun. Hence,
even had the circumstances prior to the search been
insufficient to justify the search, a discovery soon thereafter
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would have allowed and caused a search of the defendants,
which inevitably would have discovered Martinez-Rivera’s
gun.
We do not here decide whether the police were justified in
handcuffing the defendants and forcing them onto the ground
or in taking the documents and billfold from Vite-Espinoza’s
pocket. However, as both the defendants very shortly
thereafter admitted to being illegal aliens, permitting the INS
to take them into custody under 8 U.S.C. § 1357(a)(2) and an
inventory search incident to such custodial arrest, the
defendants fail to demonstrate prejudice. Vite-Espinoza’s
contention here that the continued questioning in which he
admitted his illegal status only occurred because of the
documents that had been taken from his person illegally is
without support in the record and rebutted by the facts that all
persons present in the backyard voluntarily admitted that they
were illegal aliens and that the officers had sufficient
reasonable suspicion to question him prior to his search.
Equally meritless is Vite-Espinoza’s contention that, as soon
as his frisk was concluded without finding any weapon, the
police was under an obligation to instantly release him.
Although this frisk had arguably not incriminated him, neither
did it exculpate him. He was still under the same reasonable
suspicion of being an alien illegally in this country as he was
before the frisk, and the officers were still allowed to “ask the
detainee a moderate number of questions to determine his
identity and to try to obtain information confirming or
dispelling the officer’s suspicions.” United States v. Butler,
223 F.3d 368, 374 (6th Cir. 2000). This they did and Vite-
Espinoza gave them reason to take him into custody.
III
The district court held that Vite-Espinoza’s truck was not
covered by the search warrant, but that the handgun in it
would inevitably have been discovered when Grant, a
Tennessee Highway Patrol officer, impounded and

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1The United States here again attempts to argue that the search
warrant covers the trucks. But the district court ruled against the
government on this question and the government, by no t appealing,
waived the issue.
inventoried the truck.1 Grant testified that he routinely
impounded and inventoried cars following arrests. Such
impoundments are authorized by Tennessee statute. “A
police department may take into custody any motor vehicle
found abandoned, immobile, or unattended on public or
private property.” Tenn. Code Ann. § 55-16-104.
“‘Unattended motor vehicle’ means any motor vehicle . . .
that is unattended by reason of the arrest of the driver of such
motor vehicle.” Tenn. Code Ann. § 55-16-103(6). Vite-
Espinoza raises several perfunctory, meritless challenges to
the application of the statute, including that the trooper’s
motive in impounding the car, to protect the lienholder’s
interest, was not the motive contemplated by the statute, and
that the statute was inapplicable as Vite-Espinoza was merely
taken into the custody of the INS, not arrested.
Vite-Espinoza also raises an argument of somewhat greater
merit under the Tennessee constitution. Tennessee case law
has restricted the of the unattended motor vehicle statute for
evidence gathering purposes:
[I]f the circumstances that bring the automobile to the
attention of the police in the first place are such that the
driver, even though arrested, is able to make his or her
own arrangements for the custody of the vehicle, or if the
vehicle can be parked and locked without obstructing
traffic or endangering the public, the police should
permit the action to be taken rather than impound the car
against the will of the driver and then search it. Just
cause to arrest the driver is not, alone, enough; there
must also be reasonable cause to take his vehicle into
custody.
12 United States v. Vite-Espinoza,
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Nos. 02-5491/5492
Drinkard v. State, 584 S.W.2d 650, 653 (Tenn. 1979). The
guidelines of Drinkard “must be considered by law
enforcement officers on the scene.” State v. Lunsford, 655
S.W.2d 921, 923 (Tenn. 1983). “Our holding does not
mandate that an arrestee must be advised of all available
options to impoundment; such a per se rule would be
unworkable because of changing conditions and
circumstances. However, the extent of the consultation with
an arrestee is a factor for the trial judge to consider in
determining whether the impoundment was reasonable and
necessary.” Ibid. (quoting Sanders v. State, 403 So. 2d 973,
974 (Fla. 1981)). There is no recorded case holding
impoundment reasonable and necessary under circumstances
similar to the case at bar, where the car is safely parked on
private property, the arrestee is capable of making
arrangements for the car, but is not even asked to do so by the
arresting officer, and the impoundment is putatively made for
the purpose of protecting a lienholder’s interest. The
Tennessee cases upholding impoundment typically involve
the arrest of an intoxicated driver, incapable of making
arrangements for the car, without a companion to take the car,
and in a location where the car is likely to be a traffic obstacle
or to be stolen. See, e.g., State v. Howard, 645 S.W.2d 751,
751-53 (Tenn. 1982).
Evidence found during an inventory search incident to an
unreasonable impoundment is “the product of an
unreasonable search in violation of the Fourth Amendment
and Article I, Section 7, Constitution of Tennessee” and
therefore inadmissible in Tennessee courts. Drinkard, 584
S.W.2d at 654. The federal constitutional basis of Drinkard
has been overruled. In the absence of a showing that police
acted in bad faith or for the sole purpose of investigation,
evidence discovered during inventory search of arrestee’s car
is admissible. Colorado v. Bertine, 479 U.S. 367, 372-73
(1987). “[R]easonable police regulations relating to inventory
procedures administered in good faith satisfy the Fourth
Amendment, even though courts might as a matter of

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hindsight be able to devise equally reasonable rules requiring
a different procedure.” Id. at 374. But Drinkard was also
based on the Tennessee constitution and state courts are the
final authority on the meaning of state law. Hutchinson v.
Marshall, 744 F.2d 44, 46 (6th Cir. 1984). Therefore the
Drinkard line of cases remains valid Tennessee law. See,
e.g., State v. Crutcher, 989 S.W.2d 295, 301 n.7 (Tenn. 1999)
(“An inventory search of a vehicle will be upheld, however,
only when there is no reasonable alternative to seizure of the
vehicle.” (citing Drinkard)).
We conclude that in circumstances such as the present,
where there was no violation of the United States
Constitution, but there may have been a violation of a state
constitution, the appropriate remedy is a civil action in state
court, not evidentiary exclusion in federal court. The
exclusionary “rule is a judicially created remedy designed to
safeguard Fourth Amendment rights generally through its
deterrent effect.” United States v. Calandra, 414 U.S. 338,
348 (1974) (emphasis added). The rule does not protect
against violations of state constitutional rights. See, e.g.,
United States v. Clegg, 509 F.2d 605, 614 (5th Cir. 1975)
(rejecting as meritless contention that defendant’s Fourteenth
Amendment rights were violated by introduction of evidence
in federal court that would have been excluded by state court).
Hence, the district court did not err when it admitted the gun,
which would inevitably have been found during the inventory
search of Vite-Espinoza’s truck. That search did not violate
the federal constitution, even if it may have been unlawful
under Tennessee precedent.
IV
For the foregoing reasons, we AFFIRM the district court’s
judgment.
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_____________________
CONCURRENCE
_____________________
CLAY, Circuit Judge, concurring. I concur in the outcome
reached by the majority in these consolidated cases. I write
separately to speak on the manner in which the various law
enforcement agencies arrived on the scene. Although not
outcome determinative under the facts of this case, the
conduct of the law enforcement officers in arriving on the
scene with guns drawn, ordering the occupants of the home to
lie on the ground while the officers forced their knees into the
backs of the occupants (including both Defendants), and
immediately handcuffing and questioning the individuals, all
after the officers had blocked ingress and egress to the street
on which the residence was located, was not reasonable
because the conduct went beyond the “limited intrusions on
an individual’s personal security” required by the
circumstances. Michigan v. Summers, 452 U.S. 692, 698
(1981) (citing Terry v. Ohio, 392 U.S. 1 (1968)).
A. Governing Fourth Amendment Jurisprudence
The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, . . . against unreasonable
searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause . . . .” U.S. Const. amend
IV. Generally, under the Fourth Amendment, an official
seizure of an individual must be supported by probable cause,
even if no formal arrest is made. Dunaway v. New York, 442
U.S. 200, 208 (1979). As the Supreme Court noted in Terry
v. Ohio, 392 U.S. 1, 16 (1968),
[i]t is quite plain that the Fourth Amendment governs
“seizures” of the person which do not eventuate in a trip
to the station house and prosecution for crime–“arrests”
in traditional terminology. It must be recognized that

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whenever a police officer accosts an individual and
restrains his freedom to walk away, he has “seized” that
person.
Thus, for purposes of the Fourth Amendment guarantee
against unreasonable seizures, the “general rule [is that] every
arrest, and every seizure having the essential attributes of a
formal arrest, is unreasonable unless it is supported by
probable cause.” Summers, 452 U.S. at 699-700; see also
United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“[A]
person is ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave.”).
However, in Summers, the Supreme Court recognized that
some seizures significantly less intrusive than an arrest
have withstood scrutiny under the reasonableness
standard embodied in the Fourth Amendment. In these
cases the intrusion on the citizen’s privacy “was so much
less severe” than that involved in a traditional arrest that
“the opposing interests in crime prevention and detection
and in the police officer’s safety” could support the
seizure as reasonable.
Id. at 697-98 (quoting Dunaway, 442 U.S. at 209). The
Supreme Court has therefore carved out “narrowly drawn”
exceptions to the probable cause warrant requirement for
seizures not rising to the level of a formal arrest. United
States v. Sharpe, 470 U.S. 675, 689 (1985) (Marshall, J.,
concurring) (quoting Pennsylvania v. Mimms, 434 U.S. 106,
115(1977)); see also Douglas K. Yatter, et al., Warrantless
Searches & Seizures, 88 GEO. L.J. 912, 912-13 (2000).
Two of the exceptions recognized by Summers are relevant
to the matter at hand. Specifically, the Summers Court
recognized the “stop and frisk” exception as set forth in Terry
16 United States v. Vite-Espinoza,
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Nos. 02-5491/5492
v. Ohio, wherein the Court held that a police officer may
briefly stop an individual and conduct a patdown or “frisk”
for weapons when the officer has a reasonable suspicion
(something less than probable cause) to believe that criminal
activity is afoot. See Summers, 452 U.S. at 698 (citing Terry,
392 U.S. at 16). The other relevant exception recognized by
Summers is that “a warrant to search for contraband founded
on probable cause implicitly carries with it the limited
authority to detain the occupants of the premises while a
proper search is conducted.” Id. (footnotes omitted) In a
footnote to this holding, the Court opined that “[a]lthough
special circumstances, or possibly a prolonged detention,
might lead to a different conclusion in an unusual case, we are
persuaded that this routine detention of residents of a house
while it was being searched for contraband pursuant to a valid
warrant is not such a case.” Id. at 705 n.21. In United States
v. Fountain, 2 F.3d 656, 663 (6th Cir. 1993), overruled on
other grounds, Burchett v. Kiefer, 310 F.3d 937 (6th Cir.
2002), this Court extended the exception established in
Summers regarding the detention of residents of a home being
search pursuant to a valid warrant, to the detention of visitors
to the home as well.
Despite these exceptions, it must be remembered that the
exceptions are just that, and the “general rule [is that] every
arrest, and every seizure having the essential attributes of a
formal arrest, is unreasonable unless it is supported by
probable cause.” Summers, 452 U.S. at 699-700; Mendenhall,
446 U.S. at 554 (finding that a seizure has occurred when a
reasonable person under the circumstances “would not have
believed that he was free to leave”). The essential attributes
of a formal arrest, or stated differently, the point at which the
detention ripens into a de facto arrest requiring probable
cause, is decided on an individual basis. See Sharpe, 470
U.S. at 685 (“Much as a ‘bright line’ rule would be desirable,
in evaluating whether an investigative detention is
unreasonable, common sense and ordinary human experience
must govern over rigid criteria.”); see also Gardenhire v.

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Schubert, 205 F.3d 303, 313 (6th Cir. 2000) (“When a
detention rises to the level of a full-fledged arrest, . . . the
Fourth Amendment demands that the seizure be supported by
probable cause.”).
For purposes of determining whether a Terry stop has
exceeded its permissible scope, this Court has found that
“‘[w]hen police actions go beyond checking out the
suspicious circumstances that led to the original stop, the
detention becomes an arrest that must be supported by
probable cause.’” United States v. Butler, 223 F.3d 368, 374
(6th Cir. 2000) (quoting United States v. Obasa, 15 F.3d 603,
607 (6th Cir. 1994)). This Court has also found that when
officers restrained an individual in a police cruiser after he
refused to consent to a search of a storage locker and truck,
the scope of the seizure went beyond the bounds of Terry and
ripened it into a custodial arrest under the Fourth
Amendment. See United States v. Richardson, 949 F.2d 851,
857-58 (6th Cir. 1991).
For purposes of determining whether the scope of the
detention has exceeded the Summers exception that “a warrant
to search for contraband founded on probable cause implicitly
carries with it the limited authority to detain the occupants of
the premises while a proper search is conducted,” Summers,
452 U.S. at 705 (footnotes omitted), it would appear that so
long as the officers do not detain the occupants beyond the
point of the premises’ search, the detention has not exceeded
its permissible scope. This conclusion comports with the
legitimate government interests which the Summers Court
believed justified the detention, such as preventing flight in
the event that incriminating evidence is found, minimizing the
risk of harm to the officers by allowing officers to exercise
unquestioned command of the situation, and facilitating the
orderly completion of the search. See id. at 702-03 & 705
n.21 (noting that a “prolonged detention” might have led the
Court to reach a different result). However, it is not merely
the length of the detention that is looked at in determining
18 United States v. Vite-Espinoza,
et al.
Nos. 02-5491/5492
whether the detention was reasonable. Rather, the “scope and
nature of the restraints placed on an individual’s liberty” is
also considered. Yatter, supra at 920. As the Court noted in
Summers, “special circumstances” and a “prolonged
detention,” might have led to a different result. See Summers,
452 at 705 n.21.
B. Application of the Law to the Facts of Defendants’
Motions to Suppress
As noted, the exceptions to the Fourth Amendment’s
requirement of probable cause in this case are two. First,
under Summers, the reasonable detention exception as to the
occupants of a residence for which a valid search warrant has
been issued applies. See Summers, 452 U.S. at 705. Second,
the “stop and frisk” exception under Terry also applies
inasmuch as the officers not only detained Defendants, but
made a decision prior to the search that they would invoke
Terry and conduct a “patdown” for weapons on the belief that
drugs may be on the premises. However, when officers from
several different law enforcement agencies, including the
INS, arrived on the scene with guns drawn, ordered the
occupants to lie on the ground, forced their knees into the
backs of the occupants (including both Defendants), and
immediately handcuffed and questioned the individuals, all
after the officers had blocked ingress and egress to the street
on which the residence was located, the officers’ actions
exceeded the reasonableness of Summers and Terry. Instead,
the officers’ actions in this regard were tantamount to a de
facto arrest inasmuch as the seizure had all of the attributes of
a formal arrest. See Mendenhall, 446 U.S. at 554 (“[A]
person is ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave.”); Summers, 452 U.S.
at 698, 700 (noting that the “general rule [is that] every arrest,
and every seizure having the essential attributes of a formal
arrest, is unreasonable unless it is supported by probable

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19
cause” and that Terry authorizes “limited intrusions on an
individual’s personal security”).
The case law from this circuit and our sister circuits support
this conclusion. See United States v. Bohannon, 225 F.3d
615,619 (6th Cir. 2000) (Batchelder, J., dissenting) (“A police
officer’s verbal command—if heeded—is often sufficient to
seize a person” for purposes of taking the matter out of the
bounds of the limited and brief nature of Terry stops) (citation
and internal quotation marks omitted); Butler, 223 F.3d at 374
(“The brevity and limited nature of Terry-type stops have
been repeatedly affirmed.”) (citing United States v. Obasa, 15
F.3d 603, 607 (6th Cir. 1994); Richardson, 949 F.2d at 857-
58 (finding that the scope and nature of the detention
exceeded the bounds of Terry when officers restrained an
individual in a police cruiser after he refused to consent to a
search of a storage locker and truck); Oliveira, 23 F.3d at 642,
645-46 (2d Cir. 1994) (finding that a Terry stop ripened into
a custodial arrest when six police cruisers surrounded the
suspects, ordered them from their vehicles at gunpoint,
handcuffed the suspects, and placed them in separate police
cruisers); United States v. Anderson, 981 F.2d 1560, 1566
(10th Cir. 1992) (finding that a Terry detention ripened into
a custodial arrest when officers blocked suspect with cars and
one officer approached the suspect with his gun drawn);
United States v. Codd, 956 F.2d 1109, 1111 (11th Cir. 1992)
(finding that the Terry stop resulted in a custodial arrest when
suspect was seized, handcuffed, and held for two and one-half
hours); United States v. Ricardo D., 912 F.2d 337, 340 (9th
Cir. 1990) (finding that a custodial arrest occurred when
officer gripped the arm of a juvenile, patted him down,
ordered the juvenile not to run, and seated him in the back of
a patrol car).
Thus, although the officers had a legal basis to detain the
occupants of the residence, including Defendants, under
Summers and Terry, the scope and nature of the detention was
not reasonable “in view of all of the circumstances
20 United States v. Vite-Espinoza,
et al.
Nos. 02-5491/5492
surrounding the incident.” Mendenhall, 446 U.S. at 554; see
also Summers, 452 U.S. at 698 (citing Terry, 392 U.S. at 16).
It is true that the officers had made a decision prior to
executing the warrant that any individuals found on the
premises would be “detained” and frisked for weapons
because of the marijuana seeds found in the trash pull
conducted earlier that day; however, when asked whether by
the term “detained” the officers meant “arrested”or just
“monitored,” Secret Service Agent Monica Woods replied
“monitored.” (J.A. at 143.) Specifically, the questioning of
Agent Woods went as follows:
Q: [P]rior to the execution of the warrant, was there a
meeting of the various agencies and individuals
who’re part of the search warrant execution team?
A: Yes. Everyone who was part of the search warrant
was involved in a briefing just prior to the search
warrant.
Q: Had the issue of whether or not people who were on
the property, if people on the property, were
encountered, what if anything would be done with
those people during the execution of the warrant?
A: All of those people would be patted down for
weapons and detained until we decided what steps to
take next.
Q: Now, by detained, do you mean placed under arrest
or just put to the side and monitored?
A: Yes, monitored.
(J.A. at 142-43 (emphasis added).)

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Indeed, under the agent’s own testimony, the scope and
nature of the detention went well beyond that which had been
agreed to prior to the time the search warrant was executed.
Had the officers followed the plan attested to by Agent
Woods—arriving on the scene, patting down the occupants of
the home, and putting them to the side until the search had
been completed, at which point the occupants may or may not
have been arrested depending upon whether evidence of
criminality had been found—the conclusion would be
different inasmuch as the officers’ actions would have been
within the reasonableness of Summers and Terry.
C. Conclusion
Although the law enforcement officials’ actions upon
arriving on the scene were unreasonable, I concur in the
outcome reached by the majority because, under the facts of
this case, the evidence was otherwise discovered through
lawful means.

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