USA v. DANIEL L. BOHMAN No. 10-3656.
The question presented in this appeal is whether the police may stop a vehicle only because it emerged from a site uspected of drug activity. [An nformant,] Olmsted met with [Sgt.] Kingsley and told him hat he saw known meth cook Jack Barttelt brew meth three times in the past two mnths at a hunting cabin on “Big Tony’s” property. Olmsted identified a rural forty-acre parcel owned by Tony Thorenson in a plat book and also told Kingsley that (1) he had seen an anhydrous ammonia tank at the cabin within the last week or so; (2) that a locked cable blocked the drive leading to the Thorenson cabin; and (3) that Barttelt drove a green Mercury Grand Marquis.
Sgt. Kingsley drove to the Thorenson property shortly after his evening interview with Olmsted, arriving at about 11 p.m. [A] vehicle emerged out of the driveway, driving toward Kingsley’s position. Kingsley flipped on his police lights and pulled in front of the approaching car, which stopped immediately. Kingsley frankly conceded that he did not observe any traffic violations before the stop. At some point it became clear that the stopped car was not a green Grand Marquis but was instead a reddish-maroon Chevrolet Beretta coupe.
Kingsley and his colleague got out of their car and walked toward the stopped vehicle. As soon as Kingsley could see into the car, he recognized the driver as Daniel Bohman but did not recognize the passenger. Both complied with Kingsley’s request to step out of the Beretta. As Kingsley questioned the passenger, who identified himself as Jake Barttelt, he smelled the distinctive odor of anhydrous ammonia. Kingsley concluded that he had uncovered a meth cook site. Backup arrived and police placed Bohman and Barttelt into different squad cars. Kingsley asked Bohman about a meth cook and Bohman answered affirmatively and indicated that Barttelt was cooking.
Bohman maintains that if the stop was unreasonable, then anything obtained during the stop should be suppressed and the cabin search would be fruit from that poisonous tree. A mere suspicion of
illegal activity at a particular place is not enough to transfer that suspicion to anyone who leaves that property. See United States v. Johnson, 170 F.3d 708, 720 (7th Cir. 1999).
The Fourth Amendment allows officers to “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’ ” United States v. Sokolow, 490 U.S.1, 7 (1989). This reasonableness standard typically requires a set of facts that we can measure against an objective standard such as “probable cause
or a less stringent test” such as reasonable suspicion. Delaware v. Prouse, 440 U.S. 648, 654 & n.11 (1979). In those circumstances where we do not insist on “some quantum of individualized suspicion,” we rely on other safeguards to assure that the reasonable expectation of privacy is not “subject to the discretion of the official in the field.” Id. at 654-55.
For instance, an officer with a warrant to search a place may stop anyone leaving that place without additional individualized suspicion, see Michigan v. Summers, 452 U.S. 692, 702-03 & n.16 (1981), but a mere suspicion of illegal activity about a place, without more, is not enough to justify stopping everyone emerging from that property, see Johnson, 170 F.3d at 720.
In Johnson, we concluded that police are not entitled to detain just anyone who walks out of an apartment generally suspected of hosting illegal activity. 170 F.3d at 719-20. The police did not suspect anyone in particular of criminal activity. Id. Yet the police still detained the first person who happened to walk out of the suspected apartment. Id. at 711.
Bohman’s case is indistinguishable (and, surprisingly, the government ignores it in its briefing). Like the officers in Johnson, Kingsley suspected that a particular place housed drug activity. And like in Johnson, he stopped the first person that emerged.
The government’s attempt to justify the stop based on reasonable suspicion despite the lack of particular suspicion about the car actually stopped ignores that the Supreme Court has only allowed such stops in narrow circumstances. Namely, when the police have a warrant to search a house, the detention of individuals found leaving that house is constitutionally reasonable because of “the nature of the articulable and individualized suspicion on which the police base the detention of the occupant of a home subject to a search warrant.” Summers, 452 U.S. at 703.
The impending warrant-authorized search of the home means that the detention, although a meaningful restraint on liberty, “was surely less intrusive than the search itself,” id. at 701, and “represents only an incremental intrusion on personal liberty,” id. at 703. But in this case there was no warrant and the reasoning of Summers can’t be stretched to cover a case like this which involves,
at most, reasonable suspicion.
Moreover, there is also no suggestion that the Beretta posed any danger to anyone.
We REVERSE the district court’s denial of Bohman’s motion to suppress and REMAND for further proceedings consistent with this opinion.
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