           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    United States v. Bishop                     No. 02-5176
        ELECTRONIC CITATION: 2003 FED App. 0264P (6th Cir.)
                    File Name: 03a0264p.06                                Nikki C. Pierce, FEDERAL DEFENDER SERVICES,
                                                                          Greeneville, Tennessee, for Appellee. ON BRIEF: Guy W.
                                                                          Blackwell, ASSISTANT UNITED STATES ATTORNEY,
UNITED STATES COURT OF APPEALS                                            Greenville, Tennessee, for Appellant. Nikki C. Pierce,
                                                                          FEDERAL DEFENDER SERVICES, Greeneville,
                  FOR THE SIXTH CIRCUIT                                   Tennessee, for Appellee.
                    _________________
                                                                                              _________________
 UNITED STATES OF AMERICA ,      X
          Plaintiff-Appellant,    -                                                               OPINION
                                  -                                                           _________________
                                  -   No. 02-5176
           v.                     -                                         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
 WESLEY DALE BISHOP,              -
          Defendant-Appellee. -                                           unattended automobile parked on private property. The gun
                                                                          provides the basis for a felon in possession charge. We
                                 N                                        REVERSE the decision of the district court for the following
      Appeal from the United States District Court                        reasons.
  for the Eastern District of Tennessee at Greeneville.
    No. 01-00008—Thomas G. Hull, District Judge.                                                         I.

                     Argued: June 19, 2003                                  On August 22, 1999, at almost half past noon, Laverne
                                                                          Julian, a deputy county sheriff, went to a residence in a rural
              Decided and Filed: August 1, 2003                           part of Carter County, Tennessee, to serve an arrest warrant
                                                                          on Tony Arnold for misdemeanor theft under $500. At the
        Before: KENNEDY and COLE, Circuit Judges;                         time, Tony Arnold resided at the home of Regina Arnold, his
                 WILLIAMS, District Judge.*                               girlfriend.

                      _________________                                      When Deputy Julian arrived at the residence, he pulled into
                                                                          a narrow one-lane driveway and parked behind another
                            COUNSEL                                       vehicle. The vehicle was occupied by a man sitting in the
                                                                          driver’s seat. The car engine was not running. Deputy Julian,
ARGUED: Guy W. Blackwell, ASSISTANT UNITED                                who was in uniform, approached the driver’s side of the
STATES ATTORNEY, Greenville, Tennessee, for Appellant.                    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
    *
     The Honorab le Glen M. W illiams, United States District Judge for   which the man said no. Deputy Julian then asked the man
the Western District of Virginia, sitting by designation.

                                  1
No. 02-5176                     United States v. Bishop      3    4    United States v. Bishop                     No. 02-5176

why he was there, and he responded that he was meeting “a                                       II.
boy from up the road.”
                                                                     When reviewing a district court’s decision on a motion to
   Deputy Julian proceeded to walk to the rear of the house       suppress evidence, the court’s legal conclusions are reviewed
and knocked on the back door. Regina Arnold answered the          de novo and its factual findings are upheld unless clearly
door and Deputy Julian asked if Tony Arnold was present.          erroneous. United States v. Lewis, 231 F.3d 238, 241 (6th
Regina Arnold said no. At this point, the parties dispute         Cir. 2000). The district court granted Bishop’s motion to
whether Regina Arnold told Deputy Julian that the man             suppress the handgun, concluding that the exigent
sitting in the driveway was Wesley Bishop or whether Julian       circumstances exception to the Fourth Amendment warrant
knew the man’s identity. Either way, from earlier discussions     requirement (specifically, the plain view exception) did not
with other officers in the county sheriff’s department, Deputy    apply because Deputy Julian lacked a basis for assuming that
Julian connected Bishop’s name with a reputation for violent      the handgun was contraband.
criminal behavior. The deputy, however, did not know that
Bishop was a convicted felon.                                        The Fourth Amendment prohibits unreasonable searches
                                                                  and seizures. Maryland v. Buie, 494 U.S. 325, 331 (1990).
  After conversing with Regina Arnold for approximately           In delineating the contours of the Fourth Amendment’s
thirty seconds, Deputy Julian proceeded back toward the           warrant and probable cause requirements for searches and
driveway and noticed that Bishop was gone. Deputy Julian          seizures, the Supreme Court has recognized several
had not heard the car door open or close. Deputy Julian           exceptions that acknowledge the need for police officers to
peered into the car through the open driver’s side window to      protect themselves and the public from violence in
see if Bishop was still inside it. He observed that the keys      circumstances where it would not be practical to require the
were in the ignition and that the barrel of a handgun was         officer to secure a warrant and where probable cause may be
poking from beneath a cushion on the driver’s seat. Deputy        lacking. E.g., Buie, 494 U.S. at 334 (incident to an in-home
Julian reached through the open window and removed the            arrest, a police officer may look beyond “closets and other
handgun, which he found to be loaded.                             spaces immediately adjoining the place of arrest from which
                                                                  an attack could be immediately launched” if “there [are]
   Deputy Julian went to his squad car and called his             articulable facts which, taken together with the rational
dispatcher, requesting information based on the vehicle’s         inferences from those facts, would warrant a reasonably
license plate and identification numbers. The deputy also         prudent officer in believing the area to be swept harbors an
asked the dispatcher to determine if there were any               individual posing a danger to those on the arrest scene”);
outstanding warrants for Bishop. He was given the vehicle         Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (in context
information and told that there was an outstanding arrest         of a roadside stop, “the search of the passenger compartment
warrant for Bishop based on his failure to appear on a state      of an automobile, limited to those areas in which a weapon
charge of driving on a revoked driver’s license. Deputy           may be placed or hidden, is permissible if the police officer
Julian then arranged to have the vehicle towed to the sheriff’s   possesses a reasonable belief based on ‘specific and
impound lot. Bishop did not return to the scene before            articulable facts which, taken together with the rational
Deputy Julian left.                                               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    6    United States v. Bishop                     No. 02-5176

Dombroski, 413 U.S. 433, 447-48 (1973) (automobile search          permitting a police officer executing a search warrant to
incident to police community caretaking function is                temporarily seize a weapon that was in plain view but not
permissible when police reasonably believe vehicle trunk,          obvious contraband provided the seizure was justified by a
which is vulnerable to intrusion by vandals, contains a gun);      legitimate concern for police safety. 549 F.2d 1075, 1079
Chimel v. California, 395 U.S. 752, 763 (1969) (incident to        (6th Cir. 1977). In Chapman, the police secured and executed
an in-home arrest, it is reasonable for a police officer to        a search warrant for marijuana possession at a specific
search concealed spaces within the arrestee’s reach and seize      residence in Detroit. When police conducted the search, at
any weapons or evidence); Terry v. Ohio, 392 U.S. 1, 27            least ten people were present in the house. In conducting the
(1968) (in context of investigatory stop, a limited patdown        search, police discovered a loaded sawed-off shotgun under
search for weapons is permissible if a police officer              a couch and a rifle in plain view in an upstairs bedroom. The
reasonably believes “that [the officer] is dealing with an         defendant claimed that under United States v. Gray, 484 F.2d
armed and dangerous individual”). As this Court has noted:         352 (6th Cir. 1973), the police had illegally seized the
“Obviously, the Constitution does not limit the government         weapons because at the time of the seizure the police did not
officers’ rights to protect themselves from assault when their     have any knowledge that the weapons were contraband. Id.
fear is reasonably based on objective facts.” United States v.     at 1078. With respect to the sawed-off shotgun, the court
Kinney, 638 F.2d 941, 944 n.2 (6th Cir. 1981).                     concluded that the defendant could not challenge the seizure
                                                                   of that weapon because it was obvious contraband. With
  Under ordinary circumstances, the plain view exception           respect to the rifle, the court found that police possession of
permits the warrantless seizure of an object provided that         the rifle was not an unreasonable seizure because (1) the
(1) the officer is lawfully positioned in a place from which the   police officer was lawfully positioned when he found the
object can be plainly viewed; (2) the incriminating character      rifle; and (2) there was a legitimate concern for police safety
of the object is immediately apparent; and, (3) the officer has    in that the defendant was not alone in the house at the time of
a lawful right of access to the object itself. Horton v.           the raid and the police were conducting a “raid on a portion of
California, 496 U.S. 128, 136-37 (1990); see also Texas v.         the Detroit drug scene.” Id. at 1078-79.
Brown, 460 U.S. 730, 741-42 (holding that, “in the ordinary
case,” “‘[t]he seizure of property in plain view . . . is             United States v. Isham, 501 F.3d 989, 991 (6th Cir. 1974),
presumptively reasonable, assuming there is probable cause         similarly interpreted Terry as permitting police officers to
to associate the property with criminal activity.’”). The          seize a weapon that was not obvious contraband on the
Supreme Court also has indicated that the plain view               officers’ reasonable belief that the seizure was necessary to
exception permits the warrantless seizure of “objects              protect the officers’ safety. In Isham, police officers took a
dangerous in themselves.” Coolidge v. New Hampshire, 403           shoplifting suspect, whose hands were cuffed in front of him,
U.S. 443, 472 (1971) (plurality); see also United States v.        to his car so that he could secure the car before he was taken
Malachesen, 597 F.2d 1232, 1234 n.4 (8th Cir. 1979)                to jail. As the suspect started to get into the vehicle, one of
(observing same).                                                  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 Sixth Circuit has twice approved of police seizure of a      The suspect said that he did and that the weapon was in the
weapon that was not obvious contraband based on an officer’s       back seat. The officers then entered the car and discovered a
reasonable belief that the weapon posed a threat to officer        rifle under some other items in the back seat. The court
safety. United States v. Chapman interpreted Terry as              concluded that “police knowledge of the existence of a
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firearm was triggered by their plain view of the box of            a police officer must reasonably believe, based on specific
ammunition and subsequent inquiry,” and hence within the           and articulable facts, that the weapon posed an immediate
rule established by Coolidge. Id. at 990. The court then held      danger to officer or public safety. Deputy Julian had come to
that “[w]hen the officers learned that there was a gun in the      the property to serve an arrest warrant on Tony Arnold.
car, they had reasonable grounds to seize it for their own self-   Julian testified that he connected Bishop’s name with a
protection within the Terry rationale. Id. at 990-91. In the       person known for violent criminal behavior, and that Bishop
alternative, the court held that the seizure was valid under       had disappeared from the car into a heavily wooded area
Cady because the police were acting in a community                 without making a sound in the thirty seconds that Bishop was
caretaker function when the gun was discovered. Id. at 991.        out of the deputy’s sight. Julian also testified that, upon
                                                                   discovering the handgun, he immediately became concerned
  In United States v. Malachesen, 597 F.2d 1232, 1234 (8th         for his safety.
Cir. 1979), the Eighth Circuit interpreted Coolidge as
permitting a police officer to seize a weapon that was not            Deputy Julian’s concern for his safety was objectively
obvious contraband based on the officer’s reasonable belief        reasonable: Julian had reason to assume that Bishop was a
that the weapon posed a safety threat. In that case, police        friend of Tony Arnold’s, the man he had come to arrest.
officers executed a search warrant for marijuana and a             Julian could have reasonably inferred that Bishop, as Arnold’s
snowmobile at the defendant’s home and adjacent property.          friend and a man with a reputation for violence, posed a
During the search, a police officer discovered a cocked and        confrontation risk. The presence of the handgun heightened
loaded handgun under a mattress and noticed a bullet hole in       the risk of violence in connection with a possible
the bedroom wall near the bed. The gun was placed in the           confrontation. Deputy Julian, who was surprised by Bishop’s
possession of the inventory officer for the duration of the        sudden and stealthy disappearance and had no clue as to
search. The defendant was not present during the search, but       Bishop’s immediate whereabouts, was alone in a heavily
his roommate was. Before the search was completed, the             wooded and sparsely populated area. The circumstances and
officer who found the gun learned that the defendant had a         surroundings heightened Deputy Julian’s vulnerability to
felony record. When the defendant returned home, he                attack.
admitted to ownership of the gun and his prior felony
conviction. The Malachesen court concluded that, even                 Deputy Julian also could reasonably believe that the
though the incriminating nature of the handgun was not             unattended gun posed a threat to public safety. The gun was
immediately apparent to the police, their temporary seizure of     left partially exposed in an unlocked and unattended car in a
the gun was a reasonable precaution to assure the safety of all    rural residential area. The gun could have been taken
persons on the premises during the search. Id. The court also      undetected by any passer-by, including a curious child.
held that the temporarily seized handgun became contraband         Deputy Julian’s decision to seize the gun to prevent it from
and subject to seizure when the officers learned of the            passing into the hands of someone other than the owner and
defendant’s prior felony conviction. Id. at 1235.                  possibly being used against another person was reasonable in
                                                                   light of the risk that unattended guns pose to public safety.
  The parties do not dispute that Deputy Julian was lawfully
positioned when the gun came into plain view. Thus, for the          We find that the gun became contraband and subject to
seizure of a gun in plain view (and which is not obvious           seizure when Deputy Julian discovered that it was loaded.
contraband) to be reasonable under the Fourth Amendment,           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.
