*

The Honorable Glen M. Williams, United States District Judge for

the Western District of Virginia, sitting by designation.

1

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.

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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
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.

4 United States v. Bishop No. 02-5176

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.
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
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 selfprotection 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 couldhave 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
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.