* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 12 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

WILLIAM R. BROWN,

Plaintiff-Appellant,

v. DAN DIETZ, City Police Chief; TOM LAITER, Animal Control Officer; DENNIS MORGAN, Deputy Police Officer; TERRY SOLANDER, City Prosecutor; GLORIA TRUMPP, Municipal Judge; CITY OF GARNETT, KANSAS,

Defendants-Appellees. No. 00-3187 (D.C. No. 99-CV-2476-JWL)

(D. Kan.)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 Neither appellant’s brief nor the brief of the appe llees in this case included

a copy of the memorandum and order of the district court. We remind the litigants of their obligations under 10th Cir. R. 2 8.2 to attach such materials to their briefs. -2- this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. 1 Plaintiff appellant William R. Brown appeals the ju dgment of the district court awarding summary judgment to defendants on hi s various civil rights claims. We affirm in part and reverse and remand i n part. Under Rule 1001 of the Kansas Court Rules, only the news media and educational television stations may record publ ic proceedings before the municipal courts of that state. See Rules of Sup. Ct. of Kan. R. 1001. In November 1997, a police officer testifying at a hearing in the municipal court in Garnett, Kansas, observed a hand-held electronic tape recorder in plaintiff’s shirt pocket. The officer reported the presence of the tape recorder to the city attorney, defendant Solander. At the conclusion of the hearing, defendant Dietz, who was then the chief of police in Garnett, and defendants Laiter and Mor gan followed plaintiff out of the courthouse and saw him get into a truck parked nearby. Upon being asked by Officer Dietz to exit the vehicle, plaintiff did so and further complied with Officer Dietz’s request that he stand “spread eagle ” so that a pat-down search-3-

could be conducted. After the discovery of the tap e recorder in plaintiff’s front shirt pocket, the pat-down ceased, and plaintiff wa s asked to return to the courtroom where the earlier proceeding had been hel d. Upon return to the courtroom, Officer Dietz turned over the tape recorder to the presiding municipal judge. When plaintiff r efused to identify himself, Officer Dietz removed plaintiff’s driver’s license from his back pocket and gave it to defendant Solander who looked at it, made a b rief note, and immediately returned it to plaintiff. Plaintiff was repeatedly assured that he was not under arrest. After the judge and Officer Dietz listened to a few minutes of the indistinguishable tape recording, the recorder was returned to plaintiff. The judge kept the cassette tape but informed plaintiff that he could obtain a new cassette tape from the clerk of the court on his way out. Approximately ten to twelve minutes elapsed from the time plaintiff was stoppedby Officer Dietz until he left the courtroom after being questioned. Plaintiff then brought this civil rights action aga inst Officers Dietz, Laiter and Morgan, the city prosecutor, the municipal judg e, and the City of Garnett asserting claims under 42 U.S.C. §§ 1983, 1985, 198 6, and 1988 and alleging that this incident violated his rights under the Fo urth, Fifth, Sixth, Thirteenth, and Fourteenth Amendments to the Constitution.2 “[T]he affirmative defense of qualified immunity [] protects ‘all but the

plainly incompetent or those who knowingly violate the law.’” Gross v. Pirtle , 245 F.3d 1151, 1155 (10th Cir. 2001) (quoting Malley v. Briggs , 475 U.S. 335, 341 (1986)). Once a defendant has advanced a quali fied immunity defense, the burden shifts to the plaintiff to establish (1) that the defendant’s action violated a constitutional or statutory right and (2) that th is right was clearly established at the time of the defendant’s actions. See id. at 1155-56. -4- In response to plaintiff’s complaint, defendants ar gued that none of plaintiff’s constitutional rights had been violatedand, alternatively, that if they were, those rights were not clearly establishe d. These contentions form the qualified immunity defense which “protects publ ic officials from individual liability in a § 1983 action unless the officials violated clearly established . . . constitutional rights of which a reasonable person would have known.” Mick v. Brewer , 76 F.3d 1127, 1134 (10th Cir. 1996) (quotations omitted). 2In analyzing plaintiff’s claims, the district cou rt correctly chose to determine whether plaintiff had alleged the deprivation of a constitutional right in the first instance. See County of Sacramento v. Lewis , 523 U.S. 833, 841 n.5 (1998). After concluding that there had been no co nstitutional violation sufficient to sustain any of plaintiff’s claims, the district court granted summary judgment to defendants. In rejecting plaintiff’s Fourth Ame ndment claim, the district court concluded that, because defendant Dietz had reasonable suspicion to believe that plaintiff was engaged in wrongdoing and because the detention lasted no longer than was necessary to effectuate the purpose of the stop, the investigative-5-

detention was legal as a Terry stop. See Terry v. Ohio , 392 U.S. 1, 22-25 (1968). However, while the stop in this case may have been lawful under Terry , the subsequent search was not. See, e.g., United States v. Melendez-Garcia , 28 F.3d 1046, 1051 (10th Cir. 1994) (holding initial stop justified under Terry, but subsequent seizure required probable cause).
In Michigan v. Long , 463 U.S. 1032, 1052 n.16 (1983), the Court explai ned that a search incident to a Terry stop is “protective in nature and limited to weapons.” Further, “[a] Terry search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. . . . The sole j ustification of the search . . . is the protection of police officers and others nearby. . . .” Id. at 1049 n.14 (quotation omitted). See also United States v. Gonzalez , 763 F.2d 1127, 1130-31 (10th Cir. 1985) (noting that, unless a person consents to a search after a Terry stop, the officer must choose between arresting the person in order to conduct an involuntary search or letting him go). Defendants do not suggest that the search in this c ase was mandated by concerns for officer safety or that plaintiff conse nted to the search. Instead, they argue that probable cause supported the stop and ev entual search. We are not persuaded.-6-

It is true that, where probable cause to arrest exi sts and where certain exigent circumstances are present, a “very limited” warrantless search can pass constitutional muster. See Cupp v. Murphy , 412 U.S. 291, 296 (1973); United
States v. Rizzo , 583 F.2d 907, 910 (7th Cir. 1978). While the search here was limited to a pat-down and was stopped immediately w hen defendant Dietz found the tape recorder in plaintiff’s shirt pocket, and while the risk may have existed that the tape would be erased or secreted during th e delay while a warrant was obtained, we conclude that probable cause did n ot exist to justify the search in the first instance.

Probable cause exists where the facts and circumstances within [the officers’] knowledge and of which they had rea sonably trustworthy information [are] sufficient in themsel ves to warrant a man of reasonable caution in the belief that an off ense has been or is being committed. Brinegar v. United States , 338 U.S. 160, 175-76 (1949) (quotation omitted). An officer does not need enough evidence to justifyconviction, but he or she must have more than a mere suspicion of wrongdoing. See id. at 175; see also United States v. Matthews , 615 F.2d 1279, 1284 (10th Cir. 1980). In reciting the facts of this case, the district co urt stated that “[d]uring the hearing, Officer Tate witnessed Mr. Brown ‘playing with’ a handheld electronic tape-recording device, an action Officer Tate interpreted as Mr. Brown’s attempt to record the court proceedings.” Memorandum and O rder at 2. If this were an-7-

accurate characterization of the record, we would t hen be required to determine whether such information was sufficient to provide probable cause to arrest. The record, however, does not support the district court’s statement of the facts. The only evidence in the record regarding Officer T ate’s knowledge is his sworn affidavit in which he states simply that “[w] hen I was leaving the witness stand, I saw a man in the front row with a tape rec order in his front shirt pocket. I reported the presence of the tape recorder to City Attorney Terry Solander.” R. Vol. I, tab A. The evidence that plaintiff had the tape recorder out of his pocket and was “playing with it” comes from plainti ff’s own deposition taken well after the incident at issue here. See id. Attach. to Doc. 17 at 15-16. There is no evidence that Officer Tate ever saw the tape recorder out of plaintiff’s pocket or that he saw plaintiff manipulating it in any way. Based on this evidence, we conclude that the presen ce of a tape recorder in plaintiff’s pocket did not warrant a “man of rea sonable caution in the belief that an offense has been or is being committed.” See Brinegar , 338 U.S. at 175-76 (quotation omitted). The fact that plaintif f had a tape recorder in his pocket supports only the mere suspicion that he hadbeen recording court proceedings, a threshold insufficient to establish probable cause. See id. at 175. We hold, therefore, that because defendants did nothave probable cause to arrest-8-

plaintiff under the “exigent circumstances” excepti on, the subsequent warrantless search of his person violated plaintiff’s rights un der the Fourth Amendment. As mentioned above, the district court concluded th at no constitutional violation had occurred in this case, making it unne cessary for that court to fully analyze defendants’ qualified immunity defense. Be cause we have concluded that a constitutional violation did occur, we must now turn to the second prong of the qualified immunity defense, i.e., that, even if plaintiff’s constitutional rights were violated, such rights were not clearly establi shed at the time of the violation. If the rights violated were not clearly established , defendants will still be afforded qualified immunity from this lawsuit. Whether a particular federal right was clearly established is a question of law, Mick , 76 F.3d at 1135, which we are as well-qualified to determine as the district court. “[In order f]or the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the cl early established weight of authority from other courts must be as plaintiff maintains.” Foote v. Spiegel , 118 F.3d 1416, 1424 (10th Cir. 1997). Our review o f the pertinent precedent makes it clear that the constitutional right violat ed by defendants in this case was clearly established at the time of their unlawf ul conduct. As discussed above, as early as 1983 in Michigan v. Long , 463 U.S. 1032, 1052 n.16 (1983), the Supreme Court explained that a search incident to a Terry-9-

stop is “protective in nature and limited to weapons.” Further, “[a] Terry search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. . . . The sole justification of the search . . . is the protection of police officers and others nearby. . . .” Id. at 1050 n.14 (quotation omitted). See also Gonzalez , 763 F.2d at 1130-31 (noting that, unless a personconsents to a search after a Terry stop, the officer has to choose between arresting the person in order to conduct an involuntary search or letting him go)

. Thus, the law was clearly established well before 1 997 that the reasonable suspicion to stop someone under Terry did not then justify a search for anything other than a weapon. The contours of probable caus e were also clearly established by 1997, see Brinegar , 338 U.S. at 175-76. A comparison of the Brinegar standard, as set out above, with the facts as know n by defendants at the time of this incident belies defendants’ contentionthat probable cause existed to arrest plaintiff. At the time of this incident, th erefore, the law was clearly established that the search could not be justified by the existence of probable cause and the presence of exigent circumstances. Because plaintiff has successfully established thatdefendants’ actions violated a clearly established constitutional right , qualified immunity will not shield defendants from fully defending plaintiff’s Fourth Amendment claim.-10-

We therefore reverse that portion of the district c ourt’s judgment granting summary judgment to defendants Dietz, Laiter, Morgan, and Solander on plaintiff’s Fourth Amendment claim. Because plaint iff’s Fourth Amendment claim filed pursuant to 42 U.S.C. § 1983 is reinstated, we vacate the district court’s grant of summary judgment on plaintiff’s cl aim for attorney’s fees under 42 U.S.C. § 1988. One remaining matter merits brief discussion. In h is brief to this court regarding his Fifth Amendment claims, plaintiff arg ues that the judge, defendant Trumpp, had no jurisdiction to do what she did. Th is contention does not raise a claim under the Fifth Amendment. Further, with r egard to any claim that plaintiff had the right to remain silent, we have h eld that such a right is “narrowly limited . . . to pre-arrest custodial int errogations where incriminating questions are asked.” Pallottino v. City of Rio Rancho , 31 F.3d 1023, 1026 (10th Cir. 1994). This was not a pre-arrest situat ion, and a request for name and address is “‘an essentially neutral act’” unaccompanied by the threat of criminal liability or incrimination. Id. (quoting California v. Byers , 402 U.S. 424, 432 (1971)). Plaintiff relies on Specht v. Jensen , 832 F.2d 1516 (10th Cir. 1987), to bolster his Fifth Amendment claim; that case has no bearing on the Fifth Amendment. The district court correctly relied on Porter v. United States ,-11-

473 F.2d 1329 (5th Cir. 1973), as authority to dism iss plaintiff’s Fifth Amendment claims. With regard to the remainder of plaintiff’s claims, we affirm for substantially the reasons stated by the district co urt. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED in part and REVERSED in part, and this case is REMANDED to the district court for further proceedings in ac cordance with this order and judgment.

Entered for the Court

Robert H. Henry Circuit Judge