The Honor able Da vid A. Katz, United States District J udg e for the Northe rn District of * Ohio, sitti ng by

desig nation. 1 NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 07a0033n.06 F iled: Janu ary 9, 2007 No. 05-6595 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,
v. LEO B EARDEN, Defendan t-Appellant.

__________________________________________ ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F RO M THE UN ITED STA TES DISTRICT COURT F OR THE WEST ERN DISTRICT OF TEN NE SSEE

BEFORE: CLAY and ROGERS, Circ uit Jud ges; and KATZ , District Judge. * KA TZ, Distr ict Judge. This case involves the sear ch of a customer who was patronizi ng a business, which police suspected was involved in na rcotics traff

icking and had a

rmed e mploy ees on the pre mises. That customer, the defe ndant her ein, had a felony rec ord and w as found to have
a g un in h is p os se ssi on . T his Court AF F IR M S the district court’s f inding that sa id searc h did not violate the F ourth Amendment. BACK GR OUND-2-

On Apr il 16, 2004, FB Iag ents and loca l law enf orce ment office rs conduc ted a se arc h of North Tire , a plac e of business owne d and oper ated by J odie Chambers ( “Chamb er s ”) , a S helby County Sheriff’ s Deputy . Chambers ha d consente d to a sea rch of North Tire afte r being investigated and ar rested. O ffice rs wer e looking for dr ug s, money , firea

rms, and stolen merc handise. Pr ior to t he se arc h o f N or

th T ir e , a c on fi de nti a l in fo rm ant t a pe -r e c or de d c on ve rs a tio ns wi th Chambers whe re Chambe rs threatened the informant by saying that the North Tire employ ees w ere
arme d. Chambers a lso stated that one of his employ ees w as a c onvicted fe lon who was a rmed. Ac c or din g to F B IAg e nt K imb e rl y R. M oo re (“ A g e nt

M o o r e ” ) , wh e n

o f f ic e rs arr ive d at N or

th Tire, they “saw t wo i ndividuals standing inside one of the wor k bay s.” J.A. 65. Officer s told the indiv id u a ls to li e d o w nan d

o n e o f f ic e r h an d c u f f e d th e in d iv id

u a ls an d p a tt e d th e m d o w n . A g e nt M o o re i d enti fied De fenda nt L eo B ear den (“ Def

endant” or “B ear den”) as one of those two individuals, and a Mr. Scott (“Scott”) as the other individual. Age nt Moore also testified that J eff rey Chambers, brother of J odie C hamber s, and De nnis Adams (“A dams”), a North Tire employ ee, w ere at North Tire at the time of the se arc h. J .A. 70-71. Ag ent M oore further stated that other off icer s

“ too k c are ” of

Jef fr e y Cha mbe rs and

Ad a ms, and

sh e did no t se e the m un til the y we re br ou g ht i nto the customer a

rea . J .A. 84. Ag ent Moore de scribed the North Tire store as consisting of two work ba y s where employ ees could work on ve hicles, a cu s t o m er ar ea e nclosed in g lass, and a ba ck off ice be hind the customer
are a. J.A. 66. A photogr aph of the s tore showed a si g n rea ding: “ Attention, do not enter wor k are a. Thanks.” J .A. 68. Ag ent Moore stated that office rs found Be arde n in the work ba y far thest from the customer a

rea . J .A. 70. Whil e sea rchingBe arde n, an off

icer found a gun inside B ear den’s be lt. Office rs also found-3-

another g un and shotg un ammunition in the back office . The off icer s arr ested B ear den af

ter running
a c r i m i n a l h i s t o r

y c h e c k an d d i s c o v e r i n g h i s c r i m i n a l h i s t o r y. North Tire employ ees w ore blue shirts with “North Tire” embossed on the shirts. J .A. 87; 98-99. Althoug h a photog raph taken at the time of the sea rch showed Ad am s , a Nor th Tire employ ee, in the w ork bay are a, Age n t M o o re te stified that she did not see him upon enter ing the store duringthe sea

rch of Be arde n. J .A. 85-86. Ag ent Moore te stified that Be ar d en wa s wea ring a “da rk colore d shirt with a jacke t c overing it” and that she could only see the collar of

Be arde n’s sh ir t. J.A . 88. Ag e nt M oo re a dmi tte d th a t N or th T ir e e mpl oy e e s w e re no t w e ari ngja c ke ts, bu t a g a in stated that she did not see those employ ees upon e ntering the store. Ag ent Moore te stified that she did not ask the individuals she found within the store whe ther they wer e employ ees beca

use she “didn’t feel that offic er’ s [s ic] safety could dictate that we do that.” J .A. 88. She also explained that office rs needed to sear ch the North Tire store quickly beca use they had deta ined Chambers at the Sheriff’ s Depa rtment, and they wer e afraid that infor mation could g et back to Chambe rs’ brothe r or other s at North Tire and that evidence w ould be destroy ed or r emoved. I n a one- count indictment, Be arde n was c harg ed with being a felon in posse ssion of a fire arm in v iol a tio n o f 1 8 U .S. C. § 92 2( g ). J.A. 16 . B e ard e n mo ve d to su pp re ss t he fi re arm fo un d o n h is person, arguing that the office rs’ seizure and sear ch of him violated the F ourth Amendment. Af ter
a su pp re ssi on he ari ng , th e dis tr ic t c ourt fo un d th e fo llo wi ngfa c ts:

• J odie C h a mb e r s th r e a te n e d a c o n f id e n ti a l i n f

o r ma n t b y te ll in g h im

th a t a ll of Chambers’s N orth Tire e mploy ees w ere arme d. J .A. 110-11.

• When t h e o ff

i ce rs ar rived to sea

rch the North Tire store, Ag ent Moore sa w two individuals, including B ea rd en, st anding inside the work ba y far thest from the customer wa iting ar ea. J.A. 111.

• Signs outside of the w ork bay s warne d that customer s we re not to ente r the wor k are a. J.A. 112.-4-

• Offic ers did not see Adams, the Nor th T i re em ploy ee pur

portedly working on Be arde n’s ca

r, whe n they

arr ived. J .A. 114.

• At the tim e of

the se arc h, B e ard e n w a s w e ari nga bla c k sh ir

t and a bla c k ja c ke t, w hil e North Tire employ ee w ere wea ring blue shirts without jackets. J .A. 114. The district cour

t denied B ear den’s motion to suppress the gun. I n an ora l decision, the cour t noted that there wer e two wa y s to analy

ze the Four

th Amendment issues. First, the district cour

t stated that under Y

ba rra v . I

llino is , 444 U.S. 85 (1979), off icer s
s ea rc h i n g p remises pursuant to the consent of the owner “have the rig ht to frisk persons who a re prese nt t o fi n d wea

pons that the offic er pur suing the consent to sea rch r easona

bly believes or suspects, or is in the possession of the person the offic er ha s approa ched or found on the pre mises.” J .A. 125. The court require d “a r eason that justi fies re asonable suspicion that relate s to the particular individual who is searc hed or patted down.” J
. A. 125. The district cour t held that the offic ers
rea sonably

suspected that Be arde n was a rmed b ec au s e t he off

icer s had hea

rd the re cordingof Chamb er s s t at i n g that his North Tire e mploy ees w ere arme d, and upon ar riving at North Tire , office rs saw B ear den standing in the work bay far thest from the customer a rea and did not have a

n opportunity

to compare Be arde n to the actua l North Tire e mploy ees. I n o ther wor ds, the district court conclude d that “g iven the cir cumstance s in which these two individuals [including B ear den]
wer e located, law e nforc ement off icer s had a rea sonable belief or suspicion that they wer e ar med,
and a re a so na ble ba sis fo r be lie vin g the m to be e mpl oy e e s. ” J.A. 12 7. Th e dis tr ic t c ourt a lso he ld that “a more extensive patting down” was justified in this c ase than would have been justified ha d of fi c e rs c on du c te d a

ty pic a l Terry stop-and-f

risk on the stree t. J .A. 126; 128. Second, the c ourt ana ly

zed the issue under Mi c hig an v . S um me rs , 4 5 2 U
. S
. 6 9 2 ( 1 9 8 1 )
. In Su mm e rs , th e Sup re me Court he ld “ that a

wa rr ant t o s e arc h f

or contr a ba nd fo un de d o n p ro ba

ble-5-

cause implicitl y

car ries with it the limit ed authority to detain the occupa nts of t he premises while a proper sear ch is conduc ted.” Su mm e rs , 452 U.S. at 705. The district c ourt explained, and B ear den
c on c e de d, that th e fa c t th a t Su mm e rs involved a search warr ant and not consent wa s “not materia l.” J .A. 1 28 . T he c ourt

c on c lud e d th a t Su mm e rs a pp lie d b e c a

us e the of

fi c e rs ha d a

n in te re st i n minimi zing the thre at of ha rm to themselves while conducting the s ear ch of North Tire. The district court a lso held that handcuf fing occupa

nts of premises be ing se arc hed wa s permitted. J .A. 129-30. Acc ording ly , the district court de nied B ear den’s motion to suppress. After g ranting a motion to reope n the proof on the motion to suppress, the district court hea rd testimony from Ada

ms, the North Ti re employ ee w ho purportedly was wor king on B ear den’s c ar when the of

fice rs executed the sear ch. Adams t estified that Be arde n was not in the bay are a, but was sta nd ingou tsi de of

a lin e on the g ro un d w hic h ma

rk e d h owc los e c us tom e rs we re a llo we d to be to the wo rk ba y . Ad a ms te sti fi e d that a ft e r the of fi c e rs c a me int o No rt

h Ti re and

tol d e ve ryon e to l ie do w n , h e s aw B e a

r d e n ly in g d o w n in s id e th e w o r k b ay . T h e d is tr ic t c o u rt a c knowledg ed that Ad am s ’ t es t i m o n y

cr ea t ed“s o m e c o n fl i ct ” w i t h t h e pr ev i o u s t es t i m o n y , an d m o d i fi edt h e f

i n d i n gs of fa ct ac cording ly
. J .A. 170-71. The court found t hat Bear den was at t he edge of t he work bay , and at most was “not dee p into it” when handcuffe d. J .A. 172-73. The court then he ld that this m odified finding did not “have a

ny impact on [the] prior ruling on the motion.” J .A. 173. On J une 9, 2005, Bea

rden pled g uilty to violating 18 U.S.C. § 922(g) , but reser ved the r ight to a p p e a l th e F o u rth A me n d me n t is s u e s r a is e d in h is mo ti o n to s u p p r e s s . T h e d is tr ict court
se nte nc e d B e ard e n to imp ri so nme nt f or 18 0 mo nth s, and

B e ard e n ti me ly

a pp e a le d to thi s Co ur

t. Stand ard of Review Wit h respe ct to a district cour t’s decision deny ing a m otion to suppress, this court re views-6-

the dis tr ic t c ourt ’s le g a l c on c lus ion s de novo and fa ctual finding s for cl ear err or. United States v. Hudson , 40 5 F .3 d 4 25 , 4 31 (6 th C ir . 2 00 5) . G e ne ra lly , a de te rm inatio n th a t po lic e ha d r e a so na ble suspicion to detain a suspec t is reviewe d de novo
. Ornela s v. Un i ted States , 517 U.S. 690, 699 (1996). The evidenc e must be viewed in the light most likely to suppor t the decision of the district court. Un ite d S

tat es v . H

e ath , 25 9 F.3 d 52 2, 52 8 ( 6th Cir . 2 00 1) ; United States v. NavarroCamacho , 186 F.3d 701, 705 ( 6th Cir. 1999). Discussion Be cause t h e off

icer s acte d rea sonably

under the circ umstances a nd rea sonably

mistook Be arde n for a North Tire employ ee, the office rs did not violate the Four th Amendment when the y detained a nd frisked B ear den. B eca

use the discove ry

of the gun on Def

endant’ s person wa s pursuant to a lawf ul searc h and seizure , t h i s Court also aff irms the district court’s de nial of De fenda nt’s motion to s uppress the gun as evide nce. 1. Init ialDe te nt ion Wa s R e as ona ble The off icer s’ initial detention of Be arde n was re aso n ab l e g iven both the law e nforc ement interests and “ the nature of the ar ticulable and individualized suspicion” supporting the detention. Su mm e rs , 4 52 U. S. at 70 3. Th e F ourt h A me nd me nt p ro hib its a

po lic e of fi c e r f ro m e ve n b ri e fl y detaining an individual unless the offic er ha s a re asonable suspicion tha t t h e indi vidual has bee n involved in criminal ac tivity
. Se e Te rry v . O hio , 3 92 U. S. 1 , 2 0- 22 (1 96 8) ; He ath , 259 F.3d at 528. “[T] here is ‘no rea dy

test for de termining rea sonablene ss other than by balanc ing the need to se arc h (or seiz e) ag ainst the invasion which the se arc h (or se izure) entails.’” Te rry , 392 U.S. at 21 (quoting Cam ara v . M

un ic ipa l Co ur t , 387 U.S. 523, 536-37 (1967)) . I n Te rry , the S upreme Court counseled that th e “ of

fi c e r m us t be a ble to p oin t to sp e c if

ic and art ic ula ble fa c ts w hic h, take n to g e the r w ith-7-

rational inferenc es from those fac ts, rea sonably war rant that intrusion.” Id. ; see also United States

v . V ite -E sp inoza , 342 F.3d 462, 466 ( 6th Cir. 2003). The fa cts must be judge d ag ainst an objec tive standard. Te rry , 392 U.S. at 21. Under Mi c hig

an v . S um me rs , 452 U.S. 692 (1981), a c ourt consider ing w hether a seizure wa s
rea sonable should assess “ the cha rac ter of the officia l intrusion and it s justification,” balance the la w enfor ceme nt interests with the intrusion on the defe ndant’ s p erson, a nd deter mine whether

the office rs had a

n “ar ticulable and individualiz ed suspi cion” to conduct the se arc h. U. S. v . F ou nta in , 2 F.3d 656, 663 (6th Cir. 1993), overruled on othe r grounds (c i t i n g Su mm e rs , 452 U.S. at 701-04). I n balanc ing the various intere sts, a court should weig h three interests in particula r: preve nting f

light by the de fe nd ant, min imi zingthe ri sk of ha rm to the of

fi c e rs and oth e rs , a nd fa c ili ta tin g the or de rl y completion of the sea

rch. Id. at 662. The S ix th Circuit has also considere d whether the def endant has an “ appar ent lawf

ul purpose” to be on the pre mises. Vi te -E sp inoza , 342 F.3d at 468. Her e, off icer s had re asonable suspicio n to detain B ear den under both Te rry

and Su mm e rs . Chambers g ave a g ents consent to sea rch the premises of his business. Chambers wa s also rec orded telling a n informant that his employ ees w ere arme d. Se e Ad am s v . W ill iam s , 407 U.S. 143, 146-47 (1972) ( concludingthat information fr om a re liable informant justified a Te rry stop and frisk). Fur thermore , Chambers wa s suspected of using his busi ness to conduct illeg al ac tiviti es, including crimes r el at ed t o d rug traff icking . Thus, it was rea sonable for office rs to believe that North Tire employ ees posed a threat to the officers’ secur ity
. There fore , the officers had rea sonable suspicion to d e ta in N or

th T ir e e mpl oy e e s. Th e of fi c e rs a c te d r e a so na

bly in c on fu sin g B e ard e n w ith a No rt h T ir e e mpl oy e e . Re a so na ble mistakes do not eliminate the re asonable suspicion nece ssary to justi fy a seizure unde r Te rry . See,-8-

e.g. , Houston v. Clark County Sheriff Deputy J ohn Does 1-5 , 174 F.3d 809, 814 (6th Cir. 1999). The district court found that whe n the law enfor ceme nt of fice rs approa ched the premises, the only two p eo p l e t h ey

saw we re B ear den and Scott. The court found that Be arde n was not in the customer
wa i t i n g are a, but was standingnear the work ba

y are a. B eca

use the off

icer s did not see any employ ees of

North Tire on their approach, they had no way of comparing the North Tire employ ee uniforms to Be arde n’s atti re. The officer s, there fore , rea sonably mistook Be arde n for a North Tire employ ee. Finally , the office rs’ action was supported by the Su mm e rs fac tors of off icer safe ty , curta iling the risk of flight, t he need for order ly completion of t he search, and t he lawfulness of De fenda nt’s purpose to be on the premises. The office rs’ saf ety , under the circ umstances described he rein, wa s po te nti a lly

thr e a te ne d b y

the pr e se nc e of

arm e d pe rs on s at Nor

th T ir e . D e ta ini ngB e ard e n, g ive n h is dr e s s , p r e s e n c e n e ar t h e w o r k b ay , an d C h a m b e r s ’ t h r e a t , w a s n e c e s s ar y t o p r e v e n t f

l i g h t a ndto
c omp le te the se arc h o f N or th T ir e in a

n o rd e rl y mann e r. Whil e B e ard e n ma y have ha d a

n a pp a re ntl y lawful purpose to be at Nor th Tire, this fac tor is outweig hed by the importance of protec ting of fice r
sa fe ty , b e c a

us e wh e n th e of

fi c e rs e nte re d N or

th Ti re , B e ard e n wa s no t r e a dil y dis tin g uis ha

ble a s a
mere customer with an exclusively lawful purpose for being at the shop. The of fice rs’ sea

rch w as there fore rea sonable unde r both Te rry and Su mm e rs . 2. F r isk W as Re as ona ble The off icer s’ s ear ch of Be arde n did not violate the Four th Amendment bec ause the office rs had re asonable suspicion to se arc h him. “[A] law enfor ceme nt office r, for his own protection and
sa fe ty , ma

y c on du c t a

patdo wn to f ind we a po ns that he re a so na

bly be lie ve s or sus pe c ts ar e the n in the possession of the person he has ac costed.” Y ba rra , 4 4 4 U. S
. at 9 3 (d i s cu s s i n g Te rry v . O hio ,-9-

supra) . Howeve r, Y

ba rra do e s no t a llo w ra

nd om se arc he s fo r w e a

po ns ; th e re mus t be a

re a so na ble belief or suspicion directe d at the per son to be frisked. Id. at 94. L aw e nf or c e me nt o ff

ic e rs ha d h e ard

Cha mbe rs state that hi s e mpl oy e e s w e re arm e d. Thus , the offic ers we re rea sonably fea rful that a se arc h conducte d on the pre mises of North Tire would lead to violence. See U

nited States v. Bohannon , 22 5 F .3 d 61 5, 61 7 (6 th Cir
. 20 00) (“‘T he p os sible da ng e r p re se nte d b y

an in div idu a l a

pp ro a c hin g and

e nte ri nga str

uc tur e ho us inga

dr ugop e ratio n is obvious. I n fac t, it would have be en foolha rdy for a n objectively

rea sonable off

icer not to conduct
a s ec u ri t y fr i s k u n d er t h e c i rc u m s t an ce s . ’” ) q u o t i n g United States v. Patterson , 885 F.2d 483, 485 (8th Cir. 1989). As discussed a bove, althoug h Be arde n was not a North Tire employ ee, the district court found that Be ar d en was standing nea r the wor k are a. B eca

use it was re asonable for law enfor ceme nt office rs to believe that employ ees w ere arme d based on the information p ro v ided by the owner

of N o rth T ir e an d b e c a

u s e it w a s r e a s o n a

b le f o r th e o f f ic e r s to a s s u me B e ar d e n w as an employ ee, the pat down sea rch r evea ling the w eapon w as re asonable
. Be arde n relies on the Supre me Court’s dec ision in Y barra to support his arg ument that the
sear ch was unrea sonable and thus in violation of t he F ourth Amendment. How ever , in Y ba rra the Court stated that the i nitial frisk of Ybarra “wa s simply

not supported by

a re asonable belief that he
was a rmed a nd prese ntly

dangerous, a belief

which . . . must form the pre dicate to a patdown of a person f or we apons.” Y

ba rra , 4 44 U. S. at 92 -9 3. He re , in c on tr a st, law e nf

or c e me nt o ff

ic e rs did have a rea sonable be lief that Bear den wa s armed a nd dang erous be cause they rea sonably

believed he wa s an employ ee of North Tire, g iven hi s location i n the s tore and the fac t that office rs did not see othe rs in the vicinity

and we re thus unable to compare Be arde n’s clothes to the uniforms worn by No rt h T ir e e mpl oy e e s.-10-

Be arde n also argues that the off icer s should have made an ef fort to sepa

rate employ ees f

rom non-employ ees. H oweve r, in the conte x t of a Te rry stop, the Supreme Court ha s stated that “[t] he
rea sonablene ss of the . . . dec ision to st op a suspec t does not turn on the ava ilability of l ess intrusive investigatory

techniques. Such a rule would unduly hamper the police’ s ability

to make swift, onthe-spot dec isions . . . and it would r eq u i re co u rts to ‘indulge in “unre alistic second- g uessing .”’” United States v. Sok

olow , 490 U. S
. 1 , 1 1 (1989) (citations omitt ed). I n the pre sent ca se, law enfor ceme nt office rs wer e conduc ting a sear ch of a

business involved in dr

ug traff icking wher e the employ ees w ere said to be ar med. We could conce ivably cre dit B ear den’s retrospe ctive argument that he was a mere customer and an e ffor

t should have bee n made to dete rmine who wa s an employ ee a nd who was not be fore the of fi c e rs c on du c te d s e arc he s. Ho we ve r, the fa c ts s ho w that th e re wa s to o mu c h c on fu sio n to impose such a pr ere quisite t o sear ch in this case, ba sed on the c oncurr ence of the following circ umstances: (1) Chambers stated that his North Tire employ ees were arme d; (2) police of fice rs had proba ble ca use, base d on their investig ation of Chamber s, to believe that da ng erous na

rcotics acti v it y w a s ta k in g p la c e a t N o rth T ir e ; ( 3 ) th e c o mb in a ti o n o f th e o f f ic e r s ’ h a v in g n ot seen a n employ ee be fore seeingBe arden , their not having information as to how e mploy ees w ould be dresse d vis-a-vis non-employ ees, and Be arde n’s having been dresse d in a manner that was similar to how the employ ees dresse d; a nd (4) Be arde n’s pre sence in or nea r the wor k bay , espec ially

in light of the s i g n p r o h i b i t i n g c u s t o m e r s f r o m b e i n g i n t h e w o r

k ar e a . G i v e n t h e t o t a l i t y of the se circ umstances, the police on the sce ne ac ted re asonably , and the r etroa ctiv e i mpositi on of a
re qu i re m en t t o s ep ar at e e mp l o y ee s fr o m n o n -e mp l o y ee s wo u l d en t ai l “u n re al i s t i c s ec o n d -gu es s i n g” by this Court of the law enf

orce ment office rs conduc ting the se arc h. See Sok olow , 490 U.S. at 11.-11-

The c oncer

n for of fice r saf ety is not a Fourth Amendment carte- blanche , but the safe ty of off icer s is of very high importa

nce, se e Su mm e rs , 452 U.S. at 705, and i n t h i s ca se the off icer s’ sea rch of Be arde n was re asonable in light of that intere st. Conclusion For the re asons discussed he rein, we AF F IRM the judg ment of the district cour t beca use the district court prope rly

held that t h e search at issue did not viol ate the F ourth Amendment a nd proper ly denied De fenda

nt’s motion to s uppress the gun as evide nce.