* The Honorab le Glen M. W illi ams, United States Distri ct Judge for

the Western District of Virgi nia, si tting by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0264P (6th C ir.) File Name: 03a02 64p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA , Plaintiff- Appellant

,

v.

W ESL EY D ALE B IS HOP , Defendant-Appellee. X

- - - -
> , - - N No. 02-5176

Appeal from the United States District Court for the Eastern District of Tennessee at Gr eeneville. No. 01-00008—Thomas G. Hull, District Judge.

Argued: June 19, 2003 Decided and Filed: August 1, 2003

Befor e: KENNEDY and CO LE, Ci rcuit Judg es; WILL IAMS, District Judge. *

_________________ COUNSEL

ARGUED: Guy W. Blackwe l l, AS SISTANT UNI TED STATES ATTORNEY, Greenville, Tennes see, for Appellan t. 2 United States v. Bishop No. 02-5176

Ni kk i C. Pierce , FEDERA L DEF ENDER SERV

ICES, Greeneville, Tennessee, for Appellee. ON BRI EF: Guy W. Blackw ell, ASS ISTANT UNITED STATES ATTORNEY, Greenville, Tennessee, for Appellant. Nikki C. Pierce, F EDERAL DEFEND ER SERVI CES, Gree neville , Tennessee, for Appellee.

_________________ OPINION

_________________ KENNEDY, Circu i t Judge. United States of America appeals the district court’s grant of Wesley Bishop’s motion to suppr ess a h andgu n s eized by a deputy sheriff from an unattended automobile parked on private property . The gun prov ides the basis for a felon in possession charge. W e REVERSE the decision

of the district court

for the following
reasons

. I.

OnAugust

22, 1999, at almost half past noon, Laverne Julian, a deputy county

sheriff, went to a residence in a rural part of Carter County, Te

nnessee, to serve an arr

est wa rrant
onTony Arnold for misdemea nor theft under $50 0. At t he time, Tony

Arnold resided at the home of Regina Arnold, his girlfriend.

When Deputy Julian

arrived at the re sidence , he pulle d into
a n arrow one-lane driveway and parked behind ano the r vehicle. The vehicle was occupied by a man s itt ing in the driver’s seat. The car engine was no t runn ing. Deputy Julian, who was in uniform, approached t he d river’s side of the vehi cle, which was flanked by a dense woods. Speaking throu gh the open window, Deputy Julian asked the man if he knewTony Arnold and, a fter the m an said yes, Julian asked if he had seen Tony

Arnold or knew of hi s wherea bouts, to whichthe man said no. Deputy Julian then asked the manNo. 02-5176 United States v. Bishop 3

why he was there, an d he responded that he was meeting “a boy from up the roa

d.” Depu ty Julian proceeded to walk to the rear of the ho us e and knocked on the back door. Regina Arnold answere d the door and Depu

ty Juli an asked

if To ny A rnold wa s presen t. Regina Arnold said n o. At this po int, the pa rties disp ute wheth er Regi na Arnold told Deputy Julian that the man sitting in the driveway was Wesley Bishop or whether Julian knewthe man’s identity. Either wa y, from ea rlier discussions with other of ficers i n the coun

ty sheriff ’s depar tment, De puty 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 co n versing

with Reg ina Arno ld for ap proximatel

y thirty sec onds, Deputy Julian proceeded ba ck toward the drivew ay an d noticed that Bishop was gone. Deputy Julian had not heard the car door open or close. De p uty Julian peered into the car through the opendriver’ s side wind ow to
see if Bishop was still inside it. He obser vedth at th e k eys were in the igni tion and that the barrel of a handgun was poking from beneath a cushion on the driver’s seat. De p uty Julian reached through the open window a nd removed the handgun, which he found to be loaded. Deputy Juli an wen t to his squa d car an d called his dispatcher, requesting information b ased on the vehicle’s license plate and ident

ification numbers . The dep uty also asked the dispatcher to determine if there were any outstanding warrants for Bishop. He wa s gi ven the ve hicle informationand told that there was an ou tstandi ng arr

est warrant for Bishop based

on his fai lure t o appea

r on a sta te charge of driving on a revoked driver’ s license . Deputy Julian then arranged to have the ve hicle towed to the sheriff’s impoundlot. Bisho

p did not re

turn to the

sc e ne before Deputy Julian left

. 4 United States v. Bishop No. 02-5176

II.
When reviewi

ng a dist rict cou rt’s d ecision on a motion to suppress evidence, the court’s legal conc lusions are reviewed de novo and its factual findings are u phel d unless c learly
errone ous. United Stat es v. L ewis , 231 F.3d 238, 241 ( 6th Cir. 200 0). The distr

ict cour t grant ed Bisho p’s motion t

o suppress the ha ndgu n, co ncluding that the exigent circumstances exception to the Fourt h Amendment warrant requirement

(sp ecific ally, the plain view exception) did not apply because Deputy

Julian lacked a basis for assumingthat the handgun was contraband.

The Fourth Amendment prohibits unreas o nable searches and seizures. Maryland

v. Buie , 494 U.S. 325, 331 ( 1990 ). Indelineating the con

to urs of the Fourth Amendment’s warrant and p robable cause requirements for sea rches and seizures, the Sup reme Court has recognized several
e xcept ions that ack

nowledg e the nee d for poli ce offi cers to protect themselve s and the p ublic from violenc e in circumstances where it would not be pract ical to require the officer to secure a warra

nt and whe

re proba ble cause may

be lacking. E.g. , Buie , 494 U.S. at 334 (incident to an in-home arrest, a police officer may look b eyond “c losets and other spaces immediately adjoining the pla ce of arrest from which
anattack c ould be im

mediat ely launche d” if “there [are]
ar ticulable

facts wh

ich, take n together with th e ratio na l inferences from th ose facts, would war rant a r easonab ly prud ent of

ficer in believing the area to be swept harbors an i ndivi dual posing a danger to those on the arr est scene”); Michigan v. Long , 463 U.S. 1032, 1049- 50 (1 983) (in c onte xt of a roadside stop, “the search of the passenger compartment of an automobi le, l imited to those areas in which a weapon may be placed or hidd en, is permissible if the police officer possesses a reasonable bel ie f based on ‘specific and articula ble facts which, taken together with the ra tion al inferences from those

facts, r easonab ly warrant’ the office

r in believing tha t the s uspect is dangerous and that the suspect may gain immediate control of weapon s”); Cady v.No. 02-5176 United States v. Bishop 5

Dombroski , 413 U.S. 433, 447-48 (1973) ( automobile search incident to police community care taking fun cti on is permissib le when police reasonably believe vehicle trun k, whichis vulnerable to intrusionby v andals, c ontains a gun); Chimel v. Californ ia , 395 U. S. 7 52, 763 (1 969) (inc ident to
anin-home a rrest, it

is reasonable for a polic e offic er to search concealed spaces within the arrestee ’s reach and seize
an y weapons or evide nce); Terry v. O

hio , 392 U.S. 1, 2 7 (1968) (in conte

xt of inve stigatory stop, a limited patdown search fo r weapons is permissible if a police officer
reasona bly believe s “th at [the officer] is dealing with an armed a nd dang erous ind

ividual” ). As thisCourt has noted: “O bv io us ly, the Constitution does not limit the gov ernm ent office rs’ rights to

protect themselve s from ass ault

when the ir fear is reasonably ba sed on objective facts.” United States v. Kinney, 638 F.2d 941, 944 n.2 (6th Cir. 1981).

Under o rdi nary cir

cumstances, 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 appar ent; and, (3) the officer has
a lawful right of access to the object itself. Horton v. California , 496 U.S. 12 8, 136-37 (1990); see also T exas v. Brown , 460 U.S. 730, 741-42 (holding that, “in the ordinary case,” “‘[t]he seizure of property in plain vie

w . . . is pres umpti vely

reasona ble, assu ming the re is pro bable ca use to associa

te the pr operty with crimi

nal activ ity.’”). The Supreme Court also has indicat ed that the plain view
e xcep tion permits th e warra ntless sei zure of “ objects dangerous inthemselves.” Coolidge v . New Hamp

shire , 403 U.S. 443, 472 ( 1971) (pl uralit y); see also United States v. M al achesen , 597 F.2d 1232, 1234 n.4 (8th Cir. 1979) (observing same).

The SixthCircuit has twice approved of police seizure of a weapon that was not obvious contraband based on an officer’s
reasona ble belief that the weapon po seda threat to officer
sa fe ty. Uni te d States v. Chapman interpreted Terry as 6 United States v. Bishop No. 02-5176

permitting a p oli ce offi cer exec uting a s earch warrant

to tempora rily seize a weapon that was in plain view but not obvious co nt ra ba nd pr ov id ed th e s ei zu re wa s j us ti fi ed by a legitimate concern for police safety . 549 F.2d 1075, 1079 (6th Cir. 1977). In Chapman , the police secured and executed
a search warran t for m arijuana possess ion at a sp ecific residence in Detroit. When police conducted the se arch, at least ten people were present in the house. In conducting the search, police di scovere d a loade d sawed- off sh otgun under
a couch a nd a rifle inplain view in an upstairs bedroom. The defendant claimed that under United States v. Gray , 484 F.2d 352 (6th Cir. 1973), the pol ice had illegally seized the weapons because at the time of the seizure thepolice did not have any knowled

g e that the weapons were contraband. Id

. at 1078. With resp ect to the sawed-off shotgun, the court concluded

that the defendant

could not challenge the seizure of that weapon because it wa s o bvious con traband . With respect to the rifle, the court found that police possession o f the rifl e wa s not an unreasonable seizure because (1) the p olice officer was lawfully positioned when he found th e rifle; and (2) there was a legitimate c oncern for police sa fety inthat the defendant was not alone in the house at the time of the raid and the police werecondu cting 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 off ic ers to seize a weapon that was

n ot obvio us contraband on the office rs’ reas onable belief that the se izure was necessa ry to p rote ct the officers’ safety . In Isham , police officers took a shoplifting suspect, whose hands were c uffed 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 o f the offic e rs saw a box of ammunition on the front seat and asked the suspect if he had a

weapon t hat fit the ammunition. The suspect said t hat he did and that the weapon was in the back seat. The officers then entered the ca r and discovered

a rifleunder some other items in the back seat. The court concluded

that “police knowl edg e of the existence of aNo. 02-5176 United States v. Bishop 7

firearm was triggered by their plain view of the box of ammunition and subsequent inqu iry,” and he nce within the rule established by Coolidge

. Id. at 990. Th e court t hen held that “[w]hen the officers learned that there was a gun i n th e car, they had reasonable groundsto seize it for their own selfprotection

within the Terry

rationale. Id. at 990-91. In the alternative, the cour

t hel d that the seizure was valid under Cadybecause the police w ere acting in a community caretaker function when the g un 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 w eapon that was not obvious contraband based on the officer’s reas onable belief that the weapon posed a safety threat. In tha

t c ase, police officers executed a s earc h warrant for marijuana and a snowmobile

at the defendant’s home an d a dj ac en t p ro pe rt y. During the search, a police offi c er discovered a cocked and loaded handgu n under a mattress and noticed a

bullet hole

in t he bedroom wall near

the bed. T

he gun was pla ced in th e possession of the inventory off icer for the duration of the search. The defendant was not present duringthe search, but his roommate was. Before the search wa s completed, the officer who found the gun learned that the defe nd ant had a felony record. When the defendant returne d home, he admitted to ownership of the gun and his prior felony
c onviction. The Malachesen court concluded that, ev e n thou gh the in crimi natin g natur e of th e hand gu n was n ot immediate ly

appare nt to the police, their temporary seizure of the gun was

a reasonable precaution to assure the saf ety of all persons on the premises during the search. Id . The cou rt also held that the temporarily seized handgun became contraband and subject to seizure when the office rs l earned of the defendant’s prior felony

conviction. Id. at 1235.

The parties d

o not disput

e that De puty Julian was lawf

ully positionedwhen the gun

came into plain view. Thus, for the seizu re of a gun in plain view (and which is not obvious contraband) to be reasonable under the Fourth Amen dme nt, 8 United States v. Bishop No. 02-5176

a po li ce of fi ce r m us t r ea so na bl y b elieve, based on specific
and articula

ble fac ts, that the

weapon p osed an im

mediate danger to officer or public safety

. Deputy Julian had c ome to the property to ser

ve an arrest war

rant o n Tony Arnold. Julian testified that he c onnec ted Bishop’s name with a person known for violent criminal behavior, and that Bishop had disa pp eared from the car into a heavily wooded area withoutmaking a

sound in the thirty seconds that B ishop was outof the de

puty ’s sight . Julian also testi fied that , upon discoveringthe handgun, he immedia tely became concerned fo r h is sa fe ty.

D eputy Julian’s concern for his safety was objec tivel y reasonable: Julian had rea son to assu me that B ishop was

a friend of Tony Arnold’s, the ma n he had come

to arre st. Julian could have r easonably infe rred that Bishop, as Arnold’s friend and a man w ith a rep utation for violence, posed a confrontation risk. The presence of the handg unheightened the risk of violence in c onnection with a po ssible confrontation. Deputy Julian, who was surprised by Bishop’s suddenand stealthy disappea rance an d had no clue as t o Bishop’s immediate

wherea bouts, wa s alo ne in a heav ily wooded and sparsely popula

ted area. The circumstances and
s urrou ndin gs heighte

ned Depu

ty Juli an’s vulnerabilit

y t o attack. Deputy Julian also c ould rea sonably believe that t h e unattended

gu n p os ed a t hr ea t t o p ub li c s af et y. The gun was left partially exposed in an unlocked and unattended car in a rural residential area. Th e gun could have been taken undetected

by a ny p asser-by, including

a curiou s 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 per son was reasona

ble in li gh t o f t he ri sk th at un at te nd ed gu ns po se to pu bl ic sa fe ty.

We find that

the gun bec ame cont

raband a nd subject to seizure when D ep ut y Julian discovered that it was loaded. Tennessee law permits the tra ns portation of a handgun in aNo. 02-5176 United States v. Bishop 9

vehicle provided that

is unloaded, not concealed on or about the person possessing or carry ing it, and

the ammunition for the weapon is not in the immediate vici nity of the person or weapon. Tenn. Code Ann. § 39-17-1308(a)(1). The district court held that Deputy Julian

had no re ason to assume that the handgun indicated

crim inal activity beca

use the handgun
cou ldhave been lawfully posse ssed at the time under Tennessee’s handgun permit law. We disagree. Tennessee law entitles a

handgu n carry permit hol der to car

ry a loade d handgun on his or

her pers on provided

that the h andgun

is legall y owned or possessed b y the permit holder a nd the permit ho lder has

the perm

it in the hol der’s immediate possession at all times when carry ing the handgun. Id. § 39- 17-1351(n). A reasonable officer could believe that Tennessee law is violated if a hand gun p ermit holder leaves a loaded handgun unattended in a vehicle

. III.

Insum, we hold that a police officer who discov ers a weapon in plain view may

at least temporarily se ize that weapon if a reasonable offi cer would believe, based on sp ecific and articulable facts, that the weapon poses an immediate

threat to officer or public safet y. We find that Deputy Julian’s seizure of the handg un was rea sonable i n l ight of the totality of circumstanc es. Finally, bec ause the transportation

of a loaded handgun is illegal in Tennessee, we hold that the gun becam e con traband and subje ct to permanent

seizure. Consequent ly, we REVERSE the decisionof the dis tr ict court to suppress the handgun as evidence.