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United States v. Fields

United States Court of Appeals, Eighth Circuit

August 9, 2016

United States of America Plaintiff- Appellee
Gregory A. Fields Defendant-Appellant

          Submitted: February 11, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before LOKEN, ARNOLD, and BENTON, Circuit Judges.

          LOKEN, Circuit Judge.

         Gregory A. Fields conditionally pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals the district court's denial of his motion to suppress the firearm, which was seized during an investigative stop.[1] Fields also appeals his 37-month sentence. Relying on the Supreme Court's post-sentencing decision in Johnson v. United States, 135 S.Ct. 2551 (2015), he argues the residual clause in U.S.S.G. § 4B1.2(a)(2) (2014) is unconstitutionally vague, and therefore the district court erred in concluding that his prior felony conviction for violating Mo. Rev. Stat. § 575.150 constituted a "crime of violence." We conclude that Fields's motion to suppress was properly denied and affirm his conviction. We vacate the sentence and remand.

         I. The Suppression Issue.

         At the suppression hearing, Kansas City Police Detective James Manley testified that, on the afternoon of December 28, 2013, marked patrol cars and detectives in unmarked cars conducted surveillance at the funeral of the victim of an unsolved homicide. The surveillance was to protect the victim's family -- who had requested a police presence -- and to obtain information pertinent to the homicide investigation. Manley testified that approximately one hundred people attended the funeral and that violence at funerals is not uncommon.

         Shortly after the funeral ended at 4:00 p.m., Manley saw a Chevy Tahoe legally park some 150 feet from the funeral home, when there was available parking closer to the home. Four men, including Fields, got out of the Tahoe and walked toward the funeral home. They entered for a "couple minutes, " then walked back out and stood next to the Tahoe. Fields and another man then returned to the funeral home, stayed a "couple minutes, " exited the building, and stood "on the opposite sides of the doorway" of the funeral home for approximately 15 minutes, acting "like they were waiting for something." A funeral home employee telephoned Manley and told him the family did not know the men and were afraid for their safety. Manley thought it "possible" the men were associated with the homicide. He requested officers in the marked patrol cars to conduct a "pedestrian check" of the four men to determine their identities. Manley had no suspicion the men were committing a crime.

         Patrol Officer Michael Sartain was assigned to watch the funeral home at 3:27 p.m. and parked his marked car approximately eighty feet from the funeral home. He observed two men silently stand on each side of the door for fifteen or twenty minutes, "as if they were protecting the door, " and then rejoin the other two. Sartain, who had prior experience with violent confrontations at funerals, was generally suspicious and wondered if the two men were armed. But he did not see Fields do anything to suggest he was committing a crime nor make a movement suggesting he had a handgun.

         At approximately 4:20 p.m., Sartain received the call that detectives wanted him to stop and identify the four men. Sartain drove toward the group. Fields walked away from the group toward Sartain's patrol car. Sartain noticed a bulge on Fields's right hip consistent with a gun. Sartain pulled his vehicle into a driveway to block Fields's path, exited the patrol car, and asked Fields if he was armed. Fields responded "yes, " nodding in the direction of the bulge. Sartain handcuffed Fields, patted him down, and retrieved a loaded handgun from his waistband. Sartain later learned that Fields had a prior felony conviction and arrested him for being a felon in possession of a firearm. Fields also lacked a concealed weapons permit, a violation of Missouri law. See Mo. Rev. Stat. § 571.030.1(1).

         After the hearing, Magistrate Judge Larsen filed a Report and Recommendation that Fields's motion be denied, concluding that the officers had reasonable suspicion to stop Fields and conduct a protective pat-down search for a firearm. In adopting the Report and Recommendation, Judge Sachs noted: "Unlike the situation where a bulge in clothing is deemed insufficient to suspect drug packaging, I accept the view that a bulge covering a firearm is more readily suspected by experienced law enforcement officers, at least in circumstances similar to that at bar."

         On appeal, Fields argues the police had "no reasonable suspicion to believe [he] was engaged in criminal activity" or committing a crime when he was stopped by Officer Sartain. Therefore, the investigative detention was unlawful, and the fruit of the pat-down search must be suppressed. Like the district court, we disagree.

         A police officer "may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000), citing Terry v. Ohio, 392 U.S. 1, 30 (1968). "The existence of reasonable, articulable suspicion is determined by the totality of the circumstances, taking into account an officer's deductions and rational inferences resulting from relevant training and experience." United States v. Horton, 611 F.3d 936, 940 (8th Cir. 2010), citing United States v. Arvizu, 534 U.S. 266, 273-74 (2002); see Ornelas v. United States, 517 U.S. 690, 699 (1996). "We review the district court's determination of reasonable suspicion de novo." United States v. Dupree, 202 F.3d 1046, 1048 (8th Cir. 2000). The government must prove that the officer had reasonable suspicion that criminal activity was afoot, not that the subject of the stop was actively engaged in a crime. See United States v. Carpenter, 462 F.3d 981, 986 (8th Cir. 2006), cert. denied, 549 U.S. 1343 (2007).

         Detective Manley testified that the actions of the four men at the funeral home were sufficiently suspicious that he called on uniformed officers to conduct a "pedestrian check." The suspicious circumstances were that the funeral was for the victim of an unsolved homicide, so there was a heightened risk of violence; the victim's family had asked for a protective police presence; the four men arrived after the funeral services and parked further from the funeral home than necessary; two of the men stood silently on either side of the funeral home door for fifteen minutes, as if standing guard; and a funeral home employee told Manley the family did not know the men and were concerned for their safety.

         Officer Sartain responded to this call and approached Fields as he walked away from the group. When Sartain saw a bulge on Fields's hip consistent with a hidden firearm, he made a Terry stop and immediately asked Fields if he was armed. Whether Sartain would have detained Fields without this additional, highly relevant evidence that criminal activity may be afoot is irrelevant speculation. Sartain might simply have done the kind of "pedestrian check" the Fourth Amendment always permits -- "by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [and] by putting questions to him if the person is willing to listen." Florida v. Bostick, 501 U.S. 429, 434 (1991) (quotation omitted). But with reasonable suspicion that Fields was carrying a concealed ...

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