Author: Jim Chapman
In United States v. Baker, ___ F.4th ___, 2023 WL 1095359, (9th Cir. Jan. 30, 2023), the United States Court of Appeals for the Ninth Circuit was presented with two principal questions on appeal: (1) whether officers violated the Defendant’s Fourth Amendment right to be free from unreasonable searches and seizures by exceeding the scope of their pat-down search and by seizing the Defendant’s car key, and (2) if a Constitutional violation occurred, whether the handgun evidence was, nevertheless, admissible because the Defendant’s flight from the officers attenuated the discovery of the handgun. The Ninth Circuit concluded that the handgun evidence was illegally obtained and should have been excluded at trial and that this error prejudiced the Defendant as to his brandishing conviction, but the evidence was harmless as to his convictions for Hobbs Act robbery and conspiracy convictions. This article will focus on the Ninth Circuit’s discussion of the officer’s Terry stop and the Constitutionality (or lack thereof) of that stop-and-frisk. The relevant facts are as follows.
One week after the robbery of a Sprint store in Los Angeles, LAPD Officers Byun and Salas observed a group of individuals congregating at the Nickerson Gardens housing complex. Defendant Terrance Baker stood among them in front of the complex. According to Officer Byun, officers were aware that Baker was a gang member who did not reside at Nickerson Gardens, and Officer Byun suspected that Baker was trespassing.
As the officers approached, Baker lifted his shirt to demonstrate that he was unarmed. Officer Byun conducted a pat-down search of Baker, which revealed no weapons or contraband. Officer Byun then observed a car key attached to Baker’s belt loop, which Officer Byun removed, and Officer Byun directed Baker to hand over his driver’s license. Officer Byun walked away with Baker’s car key and Baker’s driver’s license to an adjacent parking lot, where he paused at various parked cars to identify which car matched the key. Officer Salas directed Baker to walk toward the parking lot and, then, commanded him to stop and put his hands behind his back as Officer Byun continued his search for the car. Officer Salas asked Baker if he had driven a car to the location, and Baker responded, “I don’t have a car.”
When he pressed the car lock on the key, Officer Byun observed flashing headlights from a red Buick parked on the street. After which, Officer Byun said to Baker: “You don’t have a car? That’s your car right there, it’s blinking, man.” Officer Byun signaled to Officer Salas to handcuff Baker, but Baker took off running. After a brief foot chase, Baker was apprehended. After being apprehended, Baker told police that the car belonged to his mother and that “he had run because he was scared.”
While Baker was in custody, additional officers arrived to investigate the red Buick identified by Officer Byun. LAPD Officer Ceballos testified at trial that, when he peered inside the car, he “was able to see underneath the front seat what appeared to be the butt of a handgun.” Another officer used a baton to open the car door, and officers recovered a handgun with a black frame and silver slide. The gun was admitted as evidence at trial along with surveillance video of the robbery. The Government’s expert witnesses testified that the gun recovered from the red Buick was a real firearm and that its distinctive black-and-silver color scheme matched the gun used by the robber in the surveillance video.
The prosecution also introduced testimony by Baker’s co-defendant, Walter Collin Beatty, who described in detail how he and Baker had planned and committed the robbery of the Sprint store where Beatty worked. Another store employee testified that a handgun was pointed at his head, and he was forced on the ground and held in the back room while Beatty took iPhones from the Sprint safe. The jury was shown Facebook photos of Baker in clothing appearing to match the clothing worn by the robber in the surveillance video of the robbery. Cell phone evidence introduced against Baker included toll records showing seven calls between Baker and Beatty on the evening of the robbery, as well as cell site location information (“CSLI”) admitted to show Baker’s movement toward the Sprint store before the robbery and away from the store afterward.
Before trial, the United States District Court for the Central District of California denied Baker’s motions to suppress the evidence of the handgun and to exclude the testimony of Jeffrey Bennett, the Government’s cell data mapping expert. The District Court also sustained the Government’s objection to the introduction of a 2014 publication by the United States Department of Commerce, which defense counsel sought to introduce during Bennett’s cross-examination.
Eventually, the jury found Baker guilty of the three counts arising from the Sprint store robbery. Based on Beatty’s testimony that Baker had threatened him prior to Beatty’s trial testimony, the District Court applied an obstruction of justice sentencing enhancement. Baker was sentenced to125 months on each of the two Hobbs Act counts, to be served concurrently, and a consecutive 84-month term for the firearm charge. Baker timely appealed to the Ninth Circuit.
On appeal, Baker argued that the evidence of the handgun resulted from an illegal search and seizure in violation of his Fourth Amendment rights and should have been suppressed at trial. The Ninth Circuit began its consideration of Baker’s appeal by reiterating that the Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. A “search” involves governmental infringement on an expectation of privacy that society is prepared to consider reasonable, while a “seizure” of property involves some meaningful interference by the government with an individual’s possessory interests in that property.
Furthermore, Fourth Amendment rights are personal rights that may not be vicariously asserted. To establish standing to challenge governmental intrusions under the Fourth Amendment, an individual must demonstrate their reasonable expectation of privacy in a place searched, or meaningful interference with their possessory interest in property seized. Because warrantless searches or seizures of abandoned property do not violate the Fourth Amendment, persons who voluntarily abandon property lack standing to complain of its search or seizure.
The Ninth Circuit went on to explain that warrantless searches and seizures are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions. One of these exceptions is the Terry stop, which permits an officer, with a reasonable suspicion that an individual is engaged in a crime, to briefly detain the individual and make reasonable inquiries aimed at confirming or dispelling the officer’s suspicions. If the officer has a reasonable suspicion that the detained individual is armed and presently dangerous, the officer may conduct a frisk, i.e. a protective pat-down search of the individual for weapons.
The Government argued on appeal that the stop-and-frisk of Baker was lawful because it was supported by the officers’ reasonable suspicion that Baker was trespassing in front of the Nickerson Gardens housing complex. Baker disputed that the officers had reasonable grounds to initiate a stop-and-frisk and argues that he was effectively arrested without probable cause. The Ninth Circuit opined that it did not need to resolve this dispute because, even if officers had reasonable grounds to stop Baker, the search and seizure conducted in this case exceeded Constitutional limits.
According to the Ninth Circuit, a Terry stop must be confined in scope to a carefully limited search of the outer clothing of a suspect in an attempt to discover weapons. If weapons are discovered, the weapons may properly be introduced in evidence against the person from whom they were taken. Police officers may also seize non-threatening contraband detected during a protective pat-down search so long as the officers’ search stays within the bounds marked by Terry.
Here, the Government acknowledged that Baker had standing to challenge the legality of the Terry stop-and-frisk initiated against him, including whether officers exceeded the permissible scope of the stop. Assuming that the officers reasonably suspected that Baker was trespassing and was armed, the Ninth Circuit concluded that they were authorized to briefly detain Baker to ask questions related to trespassing and were also allowed to pat him down for weapons.
But after the officers confirmed that Baker did not possess weapons or contraband, the Ninth Circuit noted that the officers turned to other purposes. Specifically, Officer Byun removed a key visibly hanging from Baker’s belt loop and searched for a car that corresponded to it. Officers continued to detain Baker, not for the purpose of inquiring about trespass, but to ask him questions about whether he owned a car. Officer Byun made no claim that he suspected the car key was a weapon or contraband.
Accordingly, the Ninth Circuit found that the Government was unable to explain how the officers’ post-pat-down detention and search for the car was intended to confirm or to dispel their suspicions about a crime being committed or to secure the safety of anyone on the scene. As a result, the Ninth Circuit held that Baker had shown that the handgun was discovered as a result of police conduct that violated his Fourth Amendment rights and that the District Court erred in concluding otherwise. Had officers limited their Terry stop to a brief detention and protective pat-down search of Baker, they would have had no occasion to search for a car in an adjoining parking lot that matched the key fob hanging from Baker’s belt loop.
In short, the Ninth Circuit found that the removal of a key from a defendant’s belt loop did not qualify as part of a lawful Terry frisk of Baker. Because the officers’ protective search went beyond what was necessary to determine if Baker was armed, the search was not valid under Terry, and the District Court erred in refusing to suppress the evidence of the gun that was found as a result of the illegal search.
Finally, the Ninth Circuit rejected the Government’s argument that Baker had abandoned any interest in the car when he told the officers that he did not have a car. According to the Ninth Circuit, based on the totality of the circumstances, Baker had not objectively demonstrated his intent to abandon the car key. Baker never disclaimed any ownership or possessory interest in the key itself, nor did he voluntarily relinquish possession or control over the key. Instead, Officer Byun removed the key from Baker’s belt loop without his consent. The fact that the key was hanging from Baker’s belt manifested an objective intent to maintain possession of it, and an individual does not relinquish a possessory interest in an item merely by stating he does not own the item.
In sum, the Ninth Circuit concluded that the police officers’ discovery of the handgun was the product of illegal police conduct, whether that conduct was framed as exceeding the permissible scope of a Terry stop or as the warrantless seizure of the car key. Where evidence is obtained from an unlawful search or seizure, the exclusionary rule renders inadmissible both primary evidence obtained as a direct result of an illegal search or seizure and evidence later discovered and found to be derivative of an illegality, known as fruit of the poisonous tree. Therefore, the exclusionary rule required suppression of the handgun evidence at Baker’s trial unless an exception to the rule applies, and the District Court erred in holding otherwise.