       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Vite-Espinoza,     Nos. 02-5491/5492
    ELECTRONIC CITATION: 2003 FED App. 0300P (6th Cir.)        et al.
                File Name: 03a0300p.06
                                                          Tennessee, for Appellants. Hilliard H. Hester, ASSISTANT
                                                          UNITED STATES ATTORNEY, Nashville, Tennessee, for
UNITED STATES COURT OF APPEALS                            Appellee. ON BRIEF: Sumter L. Camp, FEDERAL
              FOR THE SIXTH CIRCUIT                       PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, Paul
                _________________                         J. Bruno, BRUNO, HAYMAKER & HEROUX, Nashville,
                                                          Tennessee, for Appellants. Hilliard H. Hester, ASSISTANT
                                                          UNITED STATES ATTORNEY, Nashville, Tennessee, for
UNITED STATES OF AMERICA , X                              Appellee.
            Plaintiff-Appellee, -
                                 -                          BOGGS, J., delivered the opinion of the court, in which
                                 -   Nos. 02-5491/5492    SUHRHEINRICH, J., joined. CLAY, J. (pp. 14-21),
           v.                    -                        delivered a separate opinion concurring in the outcome
                                  >                       reached by the majority.
                                 ,
MARIO JOAQUIN VITE-              -
ESPINOZA (02-5491); JOSE         -                                           _________________
MARTINEZ-RIVERA (02-5492), -
                                                                                 OPINION
      Defendants-Appellants. -                                               _________________
                                 -
                                N                           BOGGS, Circuit Judge. Defendants Mario Joaquin Vite-
     Appeal from the United States District Court         Espinoza and Jose Martinez-Rivera appeal the district court’s
   for the Middle District of Tennessee at Nashville.     denial of their motion to suppress, on Fourth Amendment
   No. 01-00112—Todd J. Campbell, District Judge.         grounds, firearms found in their possession and statements
                                                          they made as they were taken into custody. A joint federal,
               Argued: October 15, 2002                   state, and local police task force investigating the
                                                          counterfeiting of immigration and identification documents
         Decided and Filed: August 25, 2003               executed a valid federal search warrant on a house in
                                                          Springfield, Tennessee, owned and occupied by a third party.
 Before: BOGGS, SUHRHEINRICH, and CLAY, Circuit           During the course of that raid, the defendants were found
                    Judges.                               outside the house, but on the premises. It emerged that the
                                                          defendants were aliens illegally in this country, the police
                  _________________                       discovered a concealed handgun on Martinez-Rivera and
                                                          another concealed handgun in Vite-Espinoza’s truck in the
                       COUNSEL                            house’s driveway, and the defendants were taken into custody
                                                          of the Immigration and Naturalization Service (“INS”). After
ARGUED:    Sumter L. Camp, FEDERAL PUBLIC                 denial of their motions to suppress the handguns, each
DEFENDER’S OFFICE, Nashville, Tennessee, Paul J.          defendant pleaded guilty to being an illegal alien in
Bruno, BRUNO, HAYMAKER & HEROUX, Nashville,               possession of a firearm, in violation of 18 U.S.C.

                            1
Nos. 02-5491/5492       United States v. Vite-Espinoza,       3    4    United States v. Vite-Espinoza,      Nos. 02-5491/5492
                                                  et al.                et al.

§ 922(g)(5)(A), but reserved the right to appeal the district      admitted to owning. The defendants were taken into custody
court’s denial of the motion to suppress. It is this appeal that   by the INS. James Grant, a Tennessee Highway Patrol officer
is now before the court. We affirm.                                assigned to the raid, determined that Vite-Espinoza’s truck
                                                                   was leased and that other vehicles on the premises also
                               I                                   registered to Vite-Espinoza had title and licensing
                                                                   irregularities. Grant impounded the truck, took an inventory,
   On July 5, 2001, following up on intelligence that the house    and returned it to the lien-holder. The search of the house
was being used to produce and sell counterfeit immigration         itself uncovered “several identification documents, [a]
documents and social security cards, as well as deal large         Polaroid camera, a typewriter, . . . large quantities of
quantities of marijuana, the United States Secret Service          ammunition, . . . blank Mexican birth certificates,” and more
retrieved trash left for collection outside the house. In the      marijuana remnants, but no bulk marijuana.
trash were found “stems, seeds and remnants of marijuana”
and Mexican birth certificates. On this evidence, a federal           On July 25, 2001, the defendants were indicted for being
search warrant was issued for the house. Prior to execution of     illegal aliens in possession of a firearm, in violation of
the warrant, the law enforcement agents involved, about            18 U.S.C. § 922(g)(5)(A), possession of false social security
fifteen officers from the INS, the Secret Service, and             cards, in violation of 18 U.S.C. § 1028(a)(6), and using false
Tennessee state and local police agencies, agreed to question      social security numbers, in violation of 42 U.S.C.
all persons found on the premises regarding their immigration      § 408(a)(7)(b). After arraignment and unsealing of the search
status, on the basis that persons found in a location where        warrant, the defendants moved to suppress the firearms, on
counterfeit immigration documents are dealt could reasonably       the grounds that the guns were seized without a warrant or an
be suspected of being illegal aliens, and to perform Terry         applicable warrant-requirement exception. They also moved
stops-and-frisks, on the basis that persons involved in drug       to suppress their statements incident to arrest, on the ground
deals are frequently armed and dangerous.                          that they were products of the unconstitutional seizure. The
                                                                   district court denied the motions to suppress, finding that
  The police raided the house and executed the search              while the defendants and the truck were not covered by the
warrant that same day. Four men and a woman, among them            search warrant and there was insufficient evidence that the
the defendants, were found in the back yard of the house and       defendants had consented to the search, the police performed
immediately handcuffed and patted down. The pat-down of            a valid Terry stop-and-frisk on the defendants and the gun in
Martinez-Rivera uncovered a handgun in his waistband. Vite-        the truck would inevitably have been discovered pursuant to
Espinoza’s search uncovered no weapons, but the officers           an inventory search of the truck following its impoundment
took documents and a billfold from his pocket. Upon                under a Tennessee statute. Subsequently, the defendants
questioning, both Vite-Espinoza and Martinez-Rivera                pleaded guilty to the firearms charge in return for a dismissal
admitted to being in the country illegally. The officers also      of the other charges, but reserved their right to appeal the
found another handgun lying on the ground, which another of        denial of their motions to suppress. Vite-Espinoza was
the men present admitted dropping. At this point, the officers     sentenced to ten months of incarceration, followed by two
decided to search the vehicles in the driveway of the house.       years of supervised release, and Martinez-Rivera to twelve
Under the floorboard of a truck owned by Vite-Espinoza, the        months of incarceration, also to be followed by two years of
police discovered another handgun, which Vite-Espinoza             supervised release. Both timely appealed the denial of their
Nos. 02-5491/5492        United States v. Vite-Espinoza,        5    6    United States v. Vite-Espinoza,       Nos. 02-5491/5492
                                                   et al.                 et al.

motions to suppress to this court and we consolidated their          ‘would have been discovered by lawful means.’” Leake, 95
appeals.                                                             F.3d at 412 (quoting Nix, 467 U.S. at 444). “[T]he
                                                                     government can meet its burden of showing that the tainted
                               II                                    evidence inevitably would have been discovered through
                                                                     lawful means ‘by establishing that, by following routine
   The generally applicable principles of search and seizure         procedures, the police would inevitably have uncovered the
jurisprudence are well-known and settled. The United States          evidence.’” United States v. Kennedy, 61 F.3d 494, 500 (6th
Constitution bars “unreasonable searches and seizures.” U.S.         Cir. 1995) (quoting United States v. Ramirez-Sandoval, 872
Const. amend. IV. A stop for questioning is reasonable if the        F.2d 1392, 1399 (9th Cir. 1989)).
police officer is “able to point to specific and articulable facts
which, taken together with rational inferences from those               However, as straightforward as the Terry standard is, its
facts, reasonably warrant that intrusion” as measured by an          application to the facts of a given case remains, outside the
objective standard. Terry v. Ohio, 392 U.S. 1, 21-22 (1968).         limits of a few bright-line rules, to a considerable degree
Moreover, when the officer is “justified in believing that the       indeterminate. The court faces a question of first impression
individual whose suspicious behavior he is investigating at          unless there is precedent finding reasonable suspicion in a
close range is armed and presently dangerous to the officer or       factual situation that in every relevant respect was no more
to others,” the officer may conduct a search “limited to that        suspicious, or finding no such suspicion in a factual situation
which is necessary for the discovery of weapons which might          that in every relevant respect was no less suspicious. See
be used to harm the officer or others.” Id. at 26-27. In             Illinois v. Gates, 462 U.S. 213, 238 n.11 (1983) (stating that
finding reasonable suspicion, “the totality of the                   in the course of adjudicating the existence of reasonable
circumstances–the whole picture–must be taken into                   suspicion, “one determination will seldom be a useful
account.” United States v. Cortez, 449 U.S. 411, 417 (1981).         ‘precedent’ for another”). Given the near-infinite variety of
“The purpose of this limited search is not to discover               factual circumstances in which Terry stops-and-frisks occur,
evidence of crime, but to allow the officer to pursue his            it is unsurprising that neither party can present such
investigation without fear of violence.” Adams v. Williams,          precedent, but that both must instead rely on cases with are
407 U.S. 143, 146 (1972).                                            merely similar in one or more particular aspects.
   The exclusionary rule bars the admission of items seized             In this context, we turn to the facts of the present case. As
during an unconstitutional search, Weeks v. United States, 232       the police entered the premises, they had reason to suspect, or
U.S. 383, 398 (1914), and of testimony concerning                    in some instances even probable cause to believe, that the
knowledge acquired during such a search, Silverman v.                house was used as a factory of counterfeit immigration and
United States, 365 U.S. 505, 509 (1961). However, “evidence          identification documents for Mexican nationals and for the
may be admitted if the government can show that the                  trafficking of marijuana. Furthermore, rational inferences
evidence inevitably would have been obtained from lawful             warranted reasonable suspicions that those encountered on the
sources in the absence of the illegal discovery.” United States      premises would either be counterfeiters themselves or their
v. Leake, 95 F.3d 409, 412 (6th Cir. 1996) (citing Nix v.            illegal alien customers, because legal residents have of course
Williams, 467 U.S. 431, 444 (1984)). “The burden of proof            little need for counterfeit documents, or that they would be
is on the government to establish that the tainted evidence          armed and dangerous, because drug traffickers tend to be so.
Nos. 02-5491/5492       United States v. Vite-Espinoza,     7    8     United States v. Vite-Espinoza,         Nos. 02-5491/5492
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Indeed, the court below made a finding of fact to that effect.   circumstances.” Bohannon, 225 F.3d at 617 (quoting United
At this point the police encountered the defendants, both of     States v. Patterson, 885 F.2d 483, 485 (8th Cir. 1989)).
whom appeared to be of Hispanic ethnicity, in the back yard.
                                                                    The defendants point out that the case at bar differs in that
   The court below and the United States rely primarily on       they were not entering or leaving the searched residence but
United States v. Bohannon, 225 F.3d 615 (6th Cir. 2000). In      were merely present in its backyard.             Indeed, this
Bohannon, while law enforcement agents were executing a          circumstance does render the inference of involvement with
search warrant on a residence suspected of being used as a       the criminal activity inside the house weaker, but only slightly
methamphetamine laboratory, two men approached the               so. Innocent individuals are not significantly more likely to
residence. Id. at 616. The law enforcement agents seized and     while away their hours in the backyard of a drug and
searched the men before they entered the residence, turning      counterfeit document distribution facility than they are to
up incriminating evidence. Ibid. We held that detention of       enter or to leave it. And in so far as their presence raises a
those entering such a premise was constitutional. Id. at 617     reasonable suspicion of involvement in criminal activity, the
(expanding on Michigan v. Summers, 454 U.S. 692, 705             rationales found sufficient in Bohannon, prevention of flight
(1981) (permitting detention of occupants of a premise being     and harm to officers conducting the search, are equally
searched subject to a warrant)). See also Baker v. Monroe        applicable here.
Township, 50 F.3d 1186, 1192 (3d Cir. 1995). We reasoned
that most of the rationales underlying Summers, prevention of       The defendants cite numerous cases for the proposition that
flight if incriminating evidence is found and minimization of    the additional suspicious circumstances are insufficient to
risk of harm to the officers, were also present in the           justify a Terry stop-and-frisk. Merely observing a suspect
circumstances of Bohannon, even if the third rationale of        conversing with known narcotics addicts by itself is
Summers that the occupants would assist in the orderly           insufficient to create reasonable suspicion. Sibron v. New
completion of the search was not. Bohannon, 225 F.3d at          York, 392 U.S. 40, 63-64 (1968). “[M]ere propinquity to
616-17. See also Leveto v. Lapina, 258 F.3d 156, 167 n.5 (3d     others independently suspected of criminal activity does not,
Cir. 2001) (citing Bohannon for the proposition that “[a]        without more,” give rise to a reasonable belief that the suspect
detention may be reasonable even if fewer than all of            is armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 91-
[Summers] law enforcement interests are present”); Burchett      93 (1979). “[W]hile the fact of companionship did not of
v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (holding “that      itself justify [a] frisk . . . , it is not irrelevant to the mix that
officers act within their Summers powers when they detain an     should be considered in determining whether the agent’s
individual who approaches a searched property, pauses at the     actions were justified.” United States v. Bell, 762 F.2d 495,
property line, and flees when the officers instruct him to get   498-99 (6th Cir. 1985). “The likelihood that any given person
down” because while “this reaches beyond Summer’s                of Mexican ancestry is an alien is high enough to make
‘occupants’ language, it is consistent with the policies that    Mexican appearance a relevant factor, but standing alone it
Summers has identified”). We held that even “the possible        does not justify stopping all Mexican-Americans to ask if
danger presented by an individual approaching and entering       they are aliens.” United States v. Brignoni-Ponce, 422 U.S.
a structure housing a drug operation is obvious. In fact, it     873, 887-88 (1975). The “racially-biased assumption that . . .
would have been foolhardy for an objectively reasonable          a man of color wearing dreadlocks . . . must have been an
officer not to conduct a security frisk under the                illegal alien from Jamaica” in combination with the “long-
Nos. 02-5491/5492       United States v. Vite-Espinoza,       9    10    United States v. Vite-Espinoza,      Nos. 02-5491/5492
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discredited drug source city rationale” was insufficient to        would have allowed and caused a search of the defendants,
create reasonable, articulable suspicion. United States v.         which inevitably would have discovered Martinez-Rivera’s
Grant, 920 F.2d 377, 388 (6th Cir. 1990). Even if “the             gun.
totality of the circumstances [created] a reasonable basis for
suspecting that some roofers [in a town] might be illegal             We do not here decide whether the police were justified in
aliens,” it did not by itself create reasonable suspicion that a   handcuffing the defendants and forcing them onto the ground
particular Hispanic roofer was an illegal alien. United States     or in taking the documents and billfold from Vite-Espinoza’s
v. Alarcon-Gonzalez, 73 F.3d 289, 293 (10th Cir. 1996). To         pocket. However, as both the defendants very shortly
fairly quote these precedents is to refute the defendant’s         thereafter admitted to being illegal aliens, permitting the INS
argument. All of these precedents merely hold that some            to take them into custody under 8 U.S.C. § 1357(a)(2) and an
particular suspicious circumstances present here are by            inventory search incident to such custodial arrest, the
themselves insufficient to create reasonable suspicion; none       defendants fail to demonstrate prejudice. Vite-Espinoza’s
of them hold that these circumstances are irrelevant or must       contention here that the continued questioning in which he
be disregarded; many of them hold that they are valid factors      admitted his illegal status only occurred because of the
in a determination of reasonable suspicion.                        documents that had been taken from his person illegally is
                                                                   without support in the record and rebutted by the facts that all
  We hold that the combination of the close factual                persons present in the backyard voluntarily admitted that they
resemblance to Bohannon and the additional suspicious              were illegal aliens and that the officers had sufficient
circumstances, in particular the defendants’ presence without      reasonable suspicion to question him prior to his search.
apparent lawful purpose outside the facility and their             Equally meritless is Vite-Espinoza’s contention that, as soon
appearance, was sufficient to create reasonable, articulable       as his frisk was concluded without finding any weapon, the
suspicion. Therefore the police officers were permitted to         police was under an obligation to instantly release him.
stop and frisk the defendants and the handgun found on             Although this frisk had arguably not incriminated him, neither
Martinez-Rivera was admissible, as the court below correctly       did it exculpate him. He was still under the same reasonable
ruled. In addition, we note that the police discovered a           suspicion of being an alien illegally in this country as he was
handgun on the ground, near the defendants and their               before the frisk, and the officers were still allowed to “ask the
vehicles.     The discovery of this gun was at best                detainee a moderate number of questions to determine his
contemporaneous with, and, more likely, subsequent to, the         identity and to try to obtain information confirming or
search of the defendants. Hence its discovery cannot justify       dispelling the officer’s suspicions.” United States v. Butler,
a reasonable suspicion on the part of the police officers          223 F.3d 368, 374 (6th Cir. 2000). This they did and Vite-
conducting the search of the defendants. However, neither          Espinoza gave them reason to take him into custody.
can it be argued that the officers, had they not searched the
defendants, would have missed the handgun in plain view.                                         III
Once having discovered the dropped handgun, the officers
would most certainly have been justified in searching                The district court held that Vite-Espinoza’s truck was not
everybody present, lest there be another handgun. Hence,           covered by the search warrant, but that the handgun in it
even had the circumstances prior to the search been                would inevitably have been discovered when Grant, a
insufficient to justify the search, a discovery soon thereafter    Tennessee Highway Patrol officer, impounded and
Nos. 02-5491/5492         United States v. Vite-Espinoza,       11    12    United States v. Vite-Espinoza,       Nos. 02-5491/5492
                                                    et al.                  et al.

inventoried the truck.1 Grant testified that he routinely             Drinkard v. State, 584 S.W.2d 650, 653 (Tenn. 1979). The
impounded and inventoried cars following arrests. Such                guidelines of Drinkard “must be considered by law
impoundments are authorized by Tennessee statute. “A                  enforcement officers on the scene.” State v. Lunsford, 655
police department may take into custody any motor vehicle             S.W.2d 921, 923 (Tenn. 1983). “Our holding does not
found abandoned, immobile, or unattended on public or                 mandate that an arrestee must be advised of all available
private property.”       Tenn. Code Ann. § 55-16-104.                 options to impoundment; such a per se rule would be
“‘Unattended motor vehicle’ means any motor vehicle . . .             unworkable because of changing conditions and
that is unattended by reason of the arrest of the driver of such      circumstances. However, the extent of the consultation with
motor vehicle.” Tenn. Code Ann. § 55-16-103(6). Vite-                 an arrestee is a factor for the trial judge to consider in
Espinoza raises several perfunctory, meritless challenges to          determining whether the impoundment was reasonable and
the application of the statute, including that the trooper’s          necessary.” Ibid. (quoting Sanders v. State, 403 So. 2d 973,
motive in impounding the car, to protect the lienholder’s             974 (Fla. 1981)). There is no recorded case holding
interest, was not the motive contemplated by the statute, and         impoundment reasonable and necessary under circumstances
that the statute was inapplicable as Vite-Espinoza was merely         similar to the case at bar, where the car is safely parked on
taken into the custody of the INS, not arrested.                      private property, the arrestee is capable of making
                                                                      arrangements for the car, but is not even asked to do so by the
  Vite-Espinoza also raises an argument of somewhat greater           arresting officer, and the impoundment is putatively made for
merit under the Tennessee constitution. Tennessee case law            the purpose of protecting a lienholder’s interest. The
has restricted the of the unattended motor vehicle statute for        Tennessee cases upholding impoundment typically involve
evidence gathering purposes:                                          the arrest of an intoxicated driver, incapable of making
                                                                      arrangements for the car, without a companion to take the car,
  [I]f the circumstances that bring the automobile to the             and in a location where the car is likely to be a traffic obstacle
  attention of the police in the first place are such that the        or to be stolen. See, e.g., State v. Howard, 645 S.W.2d 751,
  driver, even though arrested, is able to make his or her            751-53 (Tenn. 1982).
  own arrangements for the custody of the vehicle, or if the
  vehicle can be parked and locked without obstructing                   Evidence found during an inventory search incident to an
  traffic or endangering the public, the police should                unreasonable impoundment is “the product of an
  permit the action to be taken rather than impound the car           unreasonable search in violation of the Fourth Amendment
  against the will of the driver and then search it. Just             and Article I, Section 7, Constitution of Tennessee” and
  cause to arrest the driver is not, alone, enough; there             therefore inadmissible in Tennessee courts. Drinkard, 584
  must also be reasonable cause to take his vehicle into              S.W.2d at 654. The federal constitutional basis of Drinkard
  custody.                                                            has been overruled. In the absence of a showing that police
                                                                      acted in bad faith or for the sole purpose of investigation,
                                                                      evidence discovered during inventory search of arrestee’s car
    1                                                                 is admissible. Colorado v. Bertine, 479 U.S. 367, 372-73
     The United States here again attempts to argue that the search   (1987). “[R]easonable police regulations relating to inventory
warrant covers the trucks. But the district court ruled against the
government on this question and the government, by no t appealing,    procedures administered in good faith satisfy the Fourth
waived the issue.                                                     Amendment, even though courts might as a matter of
Nos. 02-5491/5492       United States v. Vite-Espinoza,     13    14   United States v. Vite-Espinoza,       Nos. 02-5491/5492
                                                  et al.               et al.

hindsight be able to devise equally reasonable rules requiring                     _____________________
a different procedure.” Id. at 374. But Drinkard was also
based on the Tennessee constitution and state courts are the                          CONCURRENCE
final authority on the meaning of state law. Hutchinson v.                         _____________________
Marshall, 744 F.2d 44, 46 (6th Cir. 1984). Therefore the
Drinkard line of cases remains valid Tennessee law. See,             CLAY, Circuit Judge, concurring. I concur in the outcome
e.g., State v. Crutcher, 989 S.W.2d 295, 301 n.7 (Tenn. 1999)     reached by the majority in these consolidated cases. I write
(“An inventory search of a vehicle will be upheld, however,       separately to speak on the manner in which the various law
only when there is no reasonable alternative to seizure of the    enforcement agencies arrived on the scene. Although not
vehicle.” (citing Drinkard)).                                     outcome determinative under the facts of this case, the
                                                                  conduct of the law enforcement officers in arriving on the
   We conclude that in circumstances such as the present,         scene with guns drawn, ordering the occupants of the home to
where there was no violation of the United States                 lie on the ground while the officers forced their knees into the
Constitution, but there may have been a violation of a state      backs of the occupants (including both Defendants), and
constitution, the appropriate remedy is a civil action in state   immediately handcuffing and questioning the individuals, all
court, not evidentiary exclusion in federal court. The            after the officers had blocked ingress and egress to the street
exclusionary “rule is a judicially created remedy designed to     on which the residence was located, was not reasonable
safeguard Fourth Amendment rights generally through its           because the conduct went beyond the “limited intrusions on
deterrent effect.” United States v. Calandra, 414 U.S. 338,       an individual’s personal security” required by the
348 (1974) (emphasis added). The rule does not protect            circumstances. Michigan v. Summers, 452 U.S. 692, 698
against violations of state constitutional rights. See, e.g.,     (1981) (citing Terry v. Ohio, 392 U.S. 1 (1968)).
United States v. Clegg, 509 F.2d 605, 614 (5th Cir. 1975)
(rejecting as meritless contention that defendant’s Fourteenth      A. Governing Fourth Amendment Jurisprudence
Amendment rights were violated by introduction of evidence
in federal court that would have been excluded by state court).      The Fourth Amendment provides that “[t]he right of the
Hence, the district court did not err when it admitted the gun,   people to be secure in their persons, . . . against unreasonable
which would inevitably have been found during the inventory       searches and seizures, shall not be violated, and no Warrants
search of Vite-Espinoza’s truck. That search did not violate      shall issue, but upon probable cause . . . .” U.S. Const. amend
the federal constitution, even if it may have been unlawful       IV. Generally, under the Fourth Amendment, an official
under Tennessee precedent.                                        seizure of an individual must be supported by probable cause,
                                                                  even if no formal arrest is made. Dunaway v. New York, 442
                              IV                                  U.S. 200, 208 (1979). As the Supreme Court noted in Terry
                                                                  v. Ohio, 392 U.S. 1, 16 (1968),
  For the foregoing reasons, we AFFIRM the district court’s
judgment.                                                           [i]t is quite plain that the Fourth Amendment governs
                                                                    “seizures” of the person which do not eventuate in a trip
                                                                    to the station house and prosecution for crime–“arrests”
                                                                    in traditional terminology. It must be recognized that
Nos. 02-5491/5492       United States v. Vite-Espinoza,      15    16    United States v. Vite-Espinoza,       Nos. 02-5491/5492
                                                  et al.                 et al.

  whenever a police officer accosts an individual and              v. Ohio, wherein the Court held that a police officer may
  restrains his freedom to walk away, he has “seized” that         briefly stop an individual and conduct a patdown or “frisk”
  person.                                                          for weapons when the officer has a reasonable suspicion
                                                                   (something less than probable cause) to believe that criminal
Thus, for purposes of the Fourth Amendment guarantee               activity is afoot. See Summers, 452 U.S. at 698 (citing Terry,
against unreasonable seizures, the “general rule [is that] every   392 U.S. at 16). The other relevant exception recognized by
arrest, and every seizure having the essential attributes of a     Summers is that “a warrant to search for contraband founded
formal arrest, is unreasonable unless it is supported by           on probable cause implicitly carries with it the limited
probable cause.” Summers, 452 U.S. at 699-700; see also            authority to detain the occupants of the premises while a
United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“[A]        proper search is conducted.” Id. (footnotes omitted) In a
person is ‘seized’ within the meaning of the Fourth                footnote to this holding, the Court opined that “[a]lthough
Amendment only if, in view of all of the circumstances             special circumstances, or possibly a prolonged detention,
surrounding the incident, a reasonable person would have           might lead to a different conclusion in an unusual case, we are
believed that he was not free to leave.”).                         persuaded that this routine detention of residents of a house
                                                                   while it was being searched for contraband pursuant to a valid
  However, in Summers, the Supreme Court recognized that           warrant is not such a case.” Id. at 705 n.21. In United States
                                                                   v. Fountain, 2 F.3d 656, 663 (6th Cir. 1993), overruled on
  some seizures significantly less intrusive than an arrest        other grounds, Burchett v. Kiefer, 310 F.3d 937 (6th Cir.
  have withstood scrutiny under the reasonableness                 2002), this Court extended the exception established in
  standard embodied in the Fourth Amendment. In these              Summers regarding the detention of residents of a home being
  cases the intrusion on the citizen’s privacy “was so much        search pursuant to a valid warrant, to the detention of visitors
  less severe” than that involved in a traditional arrest that     to the home as well.
  “the opposing interests in crime prevention and detection
  and in the police officer’s safety” could support the              Despite these exceptions, it must be remembered that the
  seizure as reasonable.                                           exceptions are just that, and the “general rule [is that] every
                                                                   arrest, and every seizure having the essential attributes of a
Id. at 697-98 (quoting Dunaway, 442 U.S. at 209). The              formal arrest, is unreasonable unless it is supported by
Supreme Court has therefore carved out “narrowly drawn”            probable cause.” Summers, 452 U.S. at 699-700; Mendenhall,
exceptions to the probable cause warrant requirement for           446 U.S. at 554 (finding that a seizure has occurred when a
seizures not rising to the level of a formal arrest. United        reasonable person under the circumstances “would not have
States v. Sharpe, 470 U.S. 675, 689 (1985) (Marshall, J.,          believed that he was free to leave”). The essential attributes
concurring) (quoting Pennsylvania v. Mimms, 434 U.S. 106,          of a formal arrest, or stated differently, the point at which the
115(1977)); see also Douglas K. Yatter, et al., Warrantless        detention ripens into a de facto arrest requiring probable
Searches & Seizures, 88 GEO . L.J. 912, 912-13 (2000).             cause, is decided on an individual basis. See Sharpe, 470
                                                                   U.S. at 685 (“Much as a ‘bright line’ rule would be desirable,
  Two of the exceptions recognized by Summers are relevant         in evaluating whether an investigative detention is
to the matter at hand. Specifically, the Summers Court             unreasonable, common sense and ordinary human experience
recognized the “stop and frisk” exception as set forth in Terry    must govern over rigid criteria.”); see also Gardenhire v.
Nos. 02-5491/5492       United States v. Vite-Espinoza,      17    18    United States v. Vite-Espinoza,       Nos. 02-5491/5492
                                                  et al.                 et al.

Schubert, 205 F.3d 303, 313 (6th Cir. 2000) (“When a               whether the detention was reasonable. Rather, the “scope and
detention rises to the level of a full-fledged arrest, . . . the   nature of the restraints placed on an individual’s liberty” is
Fourth Amendment demands that the seizure be supported by          also considered. Yatter, supra at 920. As the Court noted in
probable cause.”).                                                 Summers, “special circumstances” and a “prolonged
                                                                   detention,” might have led to a different result. See Summers,
   For purposes of determining whether a Terry stop has            452 at 705 n.21.
exceeded its permissible scope, this Court has found that
“‘[w]hen police actions go beyond checking out the                   B. Application of the Law to the Facts of Defendants’
suspicious circumstances that led to the original stop, the             Motions to Suppress
detention becomes an arrest that must be supported by
probable cause.’” United States v. Butler, 223 F.3d 368, 374          As noted, the exceptions to the Fourth Amendment’s
(6th Cir. 2000) (quoting United States v. Obasa, 15 F.3d 603,      requirement of probable cause in this case are two. First,
607 (6th Cir. 1994)). This Court has also found that when          under Summers, the reasonable detention exception as to the
officers restrained an individual in a police cruiser after he     occupants of a residence for which a valid search warrant has
refused to consent to a search of a storage locker and truck,      been issued applies. See Summers, 452 U.S. at 705. Second,
the scope of the seizure went beyond the bounds of Terry and       the “stop and frisk” exception under Terry also applies
ripened it into a custodial arrest under the Fourth                inasmuch as the officers not only detained Defendants, but
Amendment. See United States v. Richardson, 949 F.2d 851,          made a decision prior to the search that they would invoke
857-58 (6th Cir. 1991).                                            Terry and conduct a “patdown” for weapons on the belief that
                                                                   drugs may be on the premises. However, when officers from
   For purposes of determining whether the scope of the            several different law enforcement agencies, including the
detention has exceeded the Summers exception that “a warrant       INS, arrived on the scene with guns drawn, ordered the
to search for contraband founded on probable cause implicitly      occupants to lie on the ground, forced their knees into the
carries with it the limited authority to detain the occupants of   backs of the occupants (including both Defendants), and
the premises while a proper search is conducted,” Summers,         immediately handcuffed and questioned the individuals, all
452 U.S. at 705 (footnotes omitted), it would appear that so       after the officers had blocked ingress and egress to the street
long as the officers do not detain the occupants beyond the        on which the residence was located, the officers’ actions
point of the premises’ search, the detention has not exceeded      exceeded the reasonableness of Summers and Terry. Instead,
its permissible scope. This conclusion comports with the           the officers’ actions in this regard were tantamount to a de
legitimate government interests which the Summers Court            facto arrest inasmuch as the seizure had all of the attributes of
believed justified the detention, such as preventing flight in     a formal arrest. See Mendenhall, 446 U.S. at 554 (“[A]
the event that incriminating evidence is found, minimizing the     person is ‘seized’ within the meaning of the Fourth
risk of harm to the officers by allowing officers to exercise      Amendment only if, in view of all of the circumstances
unquestioned command of the situation, and facilitating the        surrounding the incident, a reasonable person would have
orderly completion of the search. See id. at 702-03 & 705          believed that he was not free to leave.”); Summers, 452 U.S.
n.21 (noting that a “prolonged detention” might have led the       at 698, 700 (noting that the “general rule [is that] every arrest,
Court to reach a different result). However, it is not merely      and every seizure having the essential attributes of a formal
the length of the detention that is looked at in determining       arrest, is unreasonable unless it is supported by probable
Nos. 02-5491/5492        United States v. Vite-Espinoza,      19    20   United States v. Vite-Espinoza,     Nos. 02-5491/5492
                                                   et al.                et al.

cause” and that Terry authorizes “limited intrusions on an          surrounding the incident.” Mendenhall, 446 U.S. at 554; see
individual’s personal security”).                                   also Summers, 452 U.S. at 698 (citing Terry, 392 U.S. at 16).
   The case law from this circuit and our sister circuits support     It is true that the officers had made a decision prior to
this conclusion. See United States v. Bohannon, 225 F.3d            executing the warrant that any individuals found on the
615,619 (6th Cir. 2000) (Batchelder, J., dissenting) (“A police     premises would be “detained” and frisked for weapons
officer’s verbal command—if heeded—is often sufficient to           because of the marijuana seeds found in the trash pull
seize a person” for purposes of taking the matter out of the        conducted earlier that day; however, when asked whether by
bounds of the limited and brief nature of Terry stops) (citation    the term “detained” the officers meant “arrested”or just
and internal quotation marks omitted); Butler, 223 F.3d at 374      “monitored,” Secret Service Agent Monica Woods replied
(“The brevity and limited nature of Terry-type stops have           “monitored.” (J.A. at 143.) Specifically, the questioning of
been repeatedly affirmed.”) (citing United States v. Obasa, 15      Agent Woods went as follows:
F.3d 603, 607 (6th Cir. 1994); Richardson, 949 F.2d at 857-
58 (finding that the scope and nature of the detention                Q: [P]rior to the execution of the warrant, was there a
exceeded the bounds of Terry when officers restrained an                 meeting of the various agencies and individuals
individual in a police cruiser after he refused to consent to a          who’re part of the search warrant execution team?
search of a storage locker and truck); Oliveira, 23 F.3d at 642,
645-46 (2d Cir. 1994) (finding that a Terry stop ripened into         A: Yes. Everyone who was part of the search warrant
a custodial arrest when six police cruisers surrounded the               was involved in a briefing just prior to the search
suspects, ordered them from their vehicles at gunpoint,                  warrant.
handcuffed the suspects, and placed them in separate police
cruisers); United States v. Anderson, 981 F.2d 1560, 1566             Q: Had the issue of whether or not people who were on
(10th Cir. 1992) (finding that a Terry detention ripened into            the property, if people on the property, were
a custodial arrest when officers blocked suspect with cars and           encountered, what if anything would be done with
one officer approached the suspect with his gun drawn);                  those people during the execution of the warrant?
United States v. Codd, 956 F.2d 1109, 1111 (11th Cir. 1992)
(finding that the Terry stop resulted in a custodial arrest when      A: All of those people would be patted down for
suspect was seized, handcuffed, and held for two and one-half            weapons and detained until we decided what steps to
hours); United States v. Ricardo D., 912 F.2d 337, 340 (9th              take next.
Cir. 1990) (finding that a custodial arrest occurred when             Q: Now, by detained, do you mean placed under arrest
officer gripped the arm of a juvenile, patted him down,                  or just put to the side and monitored?
ordered the juvenile not to run, and seated him in the back of
a patrol car).                                                        A: Yes, monitored.
  Thus, although the officers had a legal basis to detain the       (J.A. at 142-43 (emphasis added).)
occupants of the residence, including Defendants, under
Summers and Terry, the scope and nature of the detention was
not reasonable “in view of all of the circumstances
Nos. 02-5491/5492      United States v. Vite-Espinoza,    21
                                                 et al.

  Indeed, under the agent’s own testimony, the scope and
nature of the detention went well beyond that which had been
agreed to prior to the time the search warrant was executed.
Had the officers followed the plan attested to by Agent
Woods—arriving on the scene, patting down the occupants of
the home, and putting them to the side until the search had
been completed, at which point the occupants may or may not
have been arrested depending upon whether evidence of
criminality had been found—the conclusion would be
different inasmuch as the officers’ actions would have been
within the reasonableness of Summers and Terry.
  C. Conclusion
  Although the law enforcement officials’ actions upon
arriving on the scene were unreasonable, I concur in the
outcome reached by the majority because, under the facts of
this case, the evidence was otherwise discovered through
lawful means.
