CA8: When a gun is seized in a business, govt must show justification; here it failed to show officer safety was an issue. A gun on a shelf in a business is not exigency per se.

An undercover officer entered a tattoo parlor looking for a “person of interest” in an unrelated case. A gun was seen on a shelf in the “work area.” Officers came back. Customers were allowed in the “work area” by invitation only, but the officers couldn’t get anybody’s attention by calling out, and they walked back to knock on a door frame. Defendant doesn’t show a reasonable expectation of privacy in the area entered. They saw the handgun and seized it. After the seizure, defendant admitted that he was a felon. The government points to no facts supporting a seizure of the firearm for safety reasons, and the district court erred in denying the motion to suppress. Essentially, a gun on a shelf in a business is not exigency per se. United States v. Lewis, 2017 U.S. App. LEXIS 13583 (8th Cir. July 27, 2017):

Applying this standard, would a reasonably prudent person in Detective Gietzen’s circumstances believe that his or her safety was in danger? The Government points to no facts supporting such a belief. The district court noted only that Detective Gietzen did not know if the gun was loaded and that in addition to the detectives and Lewis, there was a customer in the waiting area. A reasonable officer could not draw specific reasonable inferences from these facts to justify seizure of the handgun. The detectives did not suspect Lewis or the customer of any wrongdoing, nor did Lewis or the customer engage in any activity indicating they posed a threat. The detectives did not suspect others might get access to the gun. Their unparticularized suspicion that Lewis or the customer might spontaneously shoot them does not support a reasonable belief that their safety was in danger. See Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) (fact that individual talked “with a number of known narcotics addicts” did not justify self-protective search of individual); United States v. Hughes, 517 F.3d 1013, 1019 (8th Cir. 2008) (officer cannot frisk individual just “because the officer was alone and the call was vague, leaving open the possibility of dangerous situations”). See also Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979) (officer’s belief that individual “looked suspicious” did not justify stop). The Government failed to carry its burden to show the initial warrantless seizure of the handgun was permitted.

This entry was posted in Emergency / exigency, Plain view, feel, smell. Bookmark the permalink.

Comments are closed.