United States of America v. Wesley Dale Bishop

*The Honorab le Glen M. W illiams, United States District Judge for
the Western District of Virginia, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0264P (6th Cir.)
File Name: 03a0264p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
WESLEY DALE BISHOP,
Defendant-Appellee.
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No. 02-5176
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 01-00008—Thomas G. Hull, District Judge.
Argued: June 19, 2003
Decided and Filed: August 1, 2003
Before: KENNEDY and COLE, Circuit Judges;
WILLIAMS, District Judge.*
_________________
COUNSEL
ARGUED: Guy W. Blackwell, ASSISTANT UNITED
STATES ATTORNEY, Greenville, Tennessee, for Appellant.
2 United States v. Bishop No. 02-5176
Nikki C. Pierce, FEDERAL DEFENDER SERVICES,
Greeneville, Tennessee, for Appellee. ON BRIEF: Guy W.
Blackwell, ASSISTANT UNITED STATES ATTORNEY,
Greenville, Tennessee, for Appellant. Nikki C. Pierce,
FEDERAL DEFENDER SERVICES, Greeneville,
Tennessee, for Appellee.
_________________
OPINION
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KENNEDY, Circuit Judge. United States of America
appeals the district court’s grant of Wesley Bishop’s motion
to suppress a handgun seized by a deputy sheriff from an
unattended automobile parked on private property. The gun
provides the basis for a felon in possession charge. We
REVERSE the decision of the district court for the following
reasons.
I.
On August 22, 1999, at almost half past noon, Laverne
Julian, a deputy county sheriff, went to a residence in a rural
part of Carter County, Tennessee, to serve an arrest warrant
on Tony Arnold for misdemeanor theft under $500. At the
time, Tony Arnold resided at the home of Regina Arnold, his
girlfriend.
When Deputy Julian arrived at the residence, he pulled into
a narrow one-lane driveway and parked behind another
vehicle. The vehicle was occupied by a man sitting in the
driver’s seat. The car engine was not running. Deputy Julian,
who was in uniform, approached the driver’s side of the
vehicle, which was flanked by a dense woods. Speaking
through the open window, Deputy Julian asked the man if he
knew Tony Arnold and, after the man said yes, Julian asked
if he had seen Tony Arnold or knew of his whereabouts, to
which the man said no. Deputy Julian then asked the man

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No. 02-5176 United States v. Bishop 3
why he was there, and he responded that he was meeting “a
boy from up the road.”
Deputy Julian proceeded to walk to the rear of the house
and knocked on the back door. Regina Arnold answered the
door and Deputy Julian asked if Tony Arnold was present.
Regina Arnold said no. At this point, the parties dispute
whether Regina Arnold told Deputy Julian that the man
sitting in the driveway was Wesley Bishop or whether Julian
knew the man’s identity. Either way, from earlier discussions
with other officers in the county sheriff’s department, Deputy
Julian connected Bishop’s name with a reputation for violent
criminal behavior. The deputy, however, did not know that
Bishop was a convicted felon.
After conversing with Regina Arnold for approximately
thirty seconds, Deputy Julian proceeded back toward the
driveway and noticed that Bishop was gone. Deputy Julian
had not heard the car door open or close. Deputy Julian
peered into the car through the open driver’s side window to
see if Bishop was still inside it. He observed that the keys
were in the ignition and that the barrel of a handgun was
poking from beneath a cushion on the driver’s seat. Deputy
Julian reached through the open window and removed the
handgun, which he found to be loaded.
Deputy Julian went to his squad car and called his
dispatcher, requesting information based on the vehicle’s
license plate and identification numbers. The deputy also
asked the dispatcher to determine if there were any
outstanding warrants for Bishop. He was given the vehicle
information and told that there was an outstanding arrest
warrant for Bishop based on his failure to appear on a state
charge of driving on a revoked driver’s license. Deputy
Julian then arranged to have the vehicle towed to the sheriff’s
impound lot. Bishop did not return to the scene before
Deputy Julian left.
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II.
When reviewing a district court’s decision on a motion to
suppress evidence, the court’s legal conclusions are reviewed
de novo and its factual findings are upheld unless clearly
erroneous. United States v. Lewis, 231 F.3d 238, 241 (6th
Cir. 2000). The district court granted Bishop’s motion to
suppress the handgun, concluding that the exigent
circumstances exception to the Fourth Amendment warrant
requirement (specifically, the plain view exception) did not
apply because Deputy Julian lacked a basis for assuming that
the handgun was contraband.
The Fourth Amendment prohibits unreasonable searches
and seizures. Maryland v. Buie, 494 U.S. 325, 331 (1990).
In delineating the contours of the Fourth Amendment’s
warrant and probable cause requirements for searches and
seizures, the Supreme Court has recognized several
exceptions that acknowledge the need for police officers to
protect themselves and the public from violence in
circumstances where it would not be practical to require the
officer to secure a warrant and where probable cause may be
lacking. E.g., Buie, 494 U.S. at 334 (incident to an in-home
arrest, a police officer may look beyond “closets and other
spaces immediately adjoining the place of arrest from which
an attack could be immediately launched” if “there [are]
articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably
prudent officer in believing the area to be swept harbors an
individual posing a danger to those on the arrest scene”);
Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (in context
of a roadside stop, “the search of the passenger compartment
of an automobile, limited to those areas in which a weapon
may be placed or hidden, is permissible if the police officer
possesses a reasonable belief based on ‘specific and
articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant’ the officer in
believing that the suspect is dangerous and that the suspect
may gain immediate control of weapons”); Cady v.

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No. 02-5176 United States v. Bishop 5
Dombroski, 413 U.S. 433, 447-48 (1973) (automobile search
incident to police community caretaking function is
permissible when police reasonably believe vehicle trunk,
which is vulnerable to intrusion by vandals, contains a gun);
Chimel v. California, 395 U.S. 752, 763 (1969) (incident to
an in-home arrest, it is reasonable for a police officer to
search concealed spaces within the arrestee’s reach and seize
any weapons or evidence); Terry v. Ohio, 392 U.S. 1, 27
(1968) (in context of investigatory stop, a limited patdown
search for weapons is permissible if a police officer
reasonably believes “that [the officer] is dealing with an
armed and dangerous individual”). As this Court has noted:
“Obviously, the Constitution does not limit the government
officers’ rights to protect themselves from assault when their
fear is reasonably based on objective facts.” United States v.
Kinney, 638 F.2d 941, 944 n.2 (6th Cir. 1981).
Under ordinary circumstances, the plain view exception
permits the warrantless seizure of an object provided that
(1) the officer is lawfully positioned in a place from which the
object can be plainly viewed; (2) the incriminating character
of the object is immediately apparent; and, (3) the officer has
a lawful right of access to the object itself. Horton v.
California, 496 U.S. 128, 136-37 (1990); see also Texas v.
Brown, 460 U.S. 730, 741-42 (holding that, “in the ordinary
case,” “‘[t]he seizure of property in plain view . . . is
presumptively reasonable, assuming there is probable cause
to associate the property with criminal activity.’”). The
Supreme Court also has indicated that the plain view
exception permits the warrantless seizure of “objects
dangerous in themselves.” Coolidge v. New Hampshire, 403
U.S. 443, 472 (1971) (plurality); see also United States v.
Malachesen, 597 F.2d 1232, 1234 n.4 (8th Cir. 1979)
(observing same).
The Sixth Circuit has twice approved of police seizure of a
weapon that was not obvious contraband based on an officer’s
reasonable belief that the weapon posed a threat to officer
safety. United States v. Chapman interpreted Terry as
6 United States v. Bishop No. 02-5176
permitting a police officer executing a search warrant to
temporarily seize a weapon that was in plain view but not
obvious contraband provided the seizure was justified by a
legitimate concern for police safety. 549 F.2d 1075, 1079
(6th Cir. 1977). In Chapman, the police secured and executed
a search warrant for marijuana possession at a specific
residence in Detroit. When police conducted the search, at
least ten people were present in the house. In conducting the
search, police discovered a loaded sawed-off shotgun under
a couch and a rifle in plain view in an upstairs bedroom. The
defendant claimed that under United States v. Gray, 484 F.2d
352 (6th Cir. 1973), the police had illegally seized the
weapons because at the time of the seizure the police did not
have any knowledge that the weapons were contraband. Id.
at 1078. With respect to the sawed-off shotgun, the court
concluded that the defendant could not challenge the seizure
of that weapon because it was obvious contraband. With
respect to the rifle, the court found that police possession of
the rifle was not an unreasonable seizure because (1) the
police officer was lawfully positioned when he found the
rifle; and (2) there was a legitimate concern for police safety
in that the defendant was not alone in the house at the time of
the raid and the police were conducting a “raid on a portion of
the Detroit drug scene.” Id. at 1078-79.
United States v. Isham, 501 F.3d 989, 991 (6th Cir. 1974),
similarly interpreted Terry as permitting police officers to
seize a weapon that was not obvious contraband on the
officers’ reasonable belief that the seizure was necessary to
protect the officers’ safety. In Isham, police officers took a
shoplifting suspect, whose hands were cuffed in front of him,
to his car so that he could secure the car before he was taken
to jail. As the suspect started to get into the vehicle, one of
the officers saw a box of ammunition on the front seat and
asked the suspect if he had a weapon that fit the ammunition.
The suspect said that he did and that the weapon was in the
back seat. The officers then entered the car and discovered a
rifle under some other items in the back seat. The court
concluded that “police knowledge of the existence of a

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No. 02-5176 United States v. Bishop 7
firearm was triggered by their plain view of the box of
ammunition and subsequent inquiry,” and hence within the
rule established by Coolidge. Id. at 990. The court then held
that “[w]hen the officers learned that there was a gun in the
car, they had reasonable grounds to seize it for their own self-
protection within the Terry rationale. Id. at 990-91. In the
alternative, the court held that the seizure was valid under
Cady because the police were acting in a community
caretaker function when the gun was discovered. Id. at 991.
In United States v. Malachesen, 597 F.2d 1232, 1234 (8th
Cir. 1979), the Eighth Circuit interpreted Coolidge as
permitting a police officer to seize a weapon that was not
obvious contraband based on the officer’s reasonable belief
that the weapon posed a safety threat. In that case, police
officers executed a search warrant for marijuana and a
snowmobile at the defendant’s home and adjacent property.
During the search, a police officer discovered a cocked and
loaded handgun under a mattress and noticed a bullet hole in
the bedroom wall near the bed. The gun was placed in the
possession of the inventory officer for the duration of the
search. The defendant was not present during the search, but
his roommate was. Before the search was completed, the
officer who found the gun learned that the defendant had a
felony record. When the defendant returned home, he
admitted to ownership of the gun and his prior felony
conviction. The Malachesen court concluded that, even
though the incriminating nature of the handgun was not
immediately apparent to the police, their temporary seizure of
the gun was a reasonable precaution to assure the safety of all
persons on the premises during the search. Id. The court also
held that the temporarily seized handgun became contraband
and subject to seizure when the officers learned of the
defendant’s prior felony conviction. Id. at 1235.
The parties do not dispute that Deputy Julian was lawfully
positioned when the gun came into plain view. Thus, for the
seizure of a gun in plain view (and which is not obvious
contraband) to be reasonable under the Fourth Amendment,
8 United States v. Bishop No. 02-5176
a police officer must reasonably believe, based on specific
and articulable facts, that the weapon posed an immediate
danger to officer or public safety. Deputy Julian had come to
the property to serve an arrest warrant on Tony Arnold.
Julian testified that he connected Bishop’s name with a
person known for violent criminal behavior, and that Bishop
had disappeared from the car into a heavily wooded area
without making a sound in the thirty seconds that Bishop was
out of the deputy’s sight. Julian also testified that, upon
discovering the handgun, he immediately became concerned
for his safety.
Deputy Julian’s concern for his safety was objectively
reasonable: Julian had reason to assume that Bishop was a
friend of Tony Arnold’s, the man he had come to arrest.
Julian could have reasonably inferred that Bishop, as Arnold’s
friend and a man with a reputation for violence, posed a
confrontation risk. The presence of the handgun heightened
the risk of violence in connection with a possible
confrontation. Deputy Julian, who was surprised by Bishop’s
sudden and stealthy disappearance and had no clue as to
Bishop’s immediate whereabouts, was alone in a heavily
wooded and sparsely populated area. The circumstances and
surroundings heightened Deputy Julian’s vulnerability to
attack.
Deputy Julian also could reasonably believe that the
unattended gun posed a threat to public safety. The gun was
left partially exposed in an unlocked and unattended car in a
rural residential area. The gun could have been taken
undetected by any passer-by, including a curious child.
Deputy Julian’s decision to seize the gun to prevent it from
passing into the hands of someone other than the owner and
possibly being used against another person was reasonable in
light of the risk that unattended guns pose to public safety.
We find that the gun became contraband and subject to
seizure when Deputy Julian discovered that it was loaded.
Tennessee law permits the transportation of a handgun in a

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No. 02-5176 United States v. Bishop 9
vehicle provided that is unloaded, not concealed on or about
the person possessing or carrying it, and the ammunition for
the weapon is not in the immediate vicinity of the person or
weapon. Tenn. Code Ann. § 39-17-1308(a)(1). The district
court held that Deputy Julian had no reason to assume that the
handgun indicated criminal activity because the handgun
could have been lawfully possessed at the time under
Tennessee’s handgun permit law. We disagree. Tennessee
law entitles a handgun carry permit holder to carry a loaded
handgun on his or her person provided that the handgun is
legally owned or possessed by the permit holder and the
permit holder has the permit in the holder’s immediate
possession at all times when carrying the handgun. Id. § 39-
17-1351(n). A reasonable officer could believe that
Tennessee law is violated if a handgun permit holder leaves
a loaded handgun unattended in a vehicle.
III.
In sum, we hold that a police officer who discovers a
weapon in plain view may at least temporarily seize that
weapon if a reasonable officer would believe, based on
specific and articulable facts, that the weapon poses an
immediate threat to officer or public safety. We find that
Deputy Julian’s seizure of the handgun was reasonable in
light of the totality of circumstances. Finally, because the
transportation of a loaded handgun is illegal in Tennessee, we
hold that the gun became contraband and subject to
permanent seizure. Consequently, we REVERSE the
decision of the district court to suppress the handgun as
evidence.

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