                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 12 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    WILLIAM R. BROWN,

                Plaintiff-Appellant,

    v.                                                  No. 00-3187
                                                 (D.C. No. 99-CV-2476-JWL)
    DAN DIETZ, City Police Chief;                         (D. Kan.)
    TOM LAITER, Animal Control
    Officer; DENNIS MORGAN, Deputy
    Police Officer; TERRY SOLANDER,
    City Prosecutor; GLORIA TRUMPP,
    Municipal Judge; CITY OF
    GARNETT, KANSAS,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.   1



       Plaintiff appellant William R. Brown appeals the judgment of the district

court awarding summary judgment to defendants on his various civil rights

claims. We affirm in part and reverse and remand in part.

       Under Rule 1001 of the Kansas Court Rules, only the news media

and educational television stations may record public proceedings before

the municipal courts of that state.   See Rules of Sup. Ct. of Kan. R. 1001.

In November 1997, a police officer testifying at a hearing in the municipal court

in Garnett, Kansas, observed a hand-held electronic tape recorder in plaintiff’s

shirt pocket. The officer reported the presence of the tape recorder to the city

attorney, defendant Solander.

       At the conclusion of the hearing, defendant Dietz, who was then the chief

of police in Garnett, and defendants Laiter and Morgan followed plaintiff out of

the courthouse and saw him get into a truck parked nearby. Upon being asked by

Officer Dietz to exit the vehicle, plaintiff did so and further complied with

Officer Dietz’s request that he stand “spread eagle” so that a pat-down search



1
       Neither appellant’s brief nor the brief of the appellees in this case included
a copy of the memorandum and order of the district court. We remind the
litigants of their obligations under 10th Cir. R. 28.2 to attach such materials to
their briefs.

                                          -2-
could be conducted. After the discovery of the tape recorder in plaintiff’s front

shirt pocket, the pat-down ceased, and plaintiff was asked to return to the

courtroom where the earlier proceeding had been held.

      Upon return to the courtroom, Officer Dietz turned over the tape recorder

to the presiding municipal judge. When plaintiff refused to identify himself,

Officer Dietz removed plaintiff’s driver’s license from his back pocket and gave

it to defendant Solander who looked at it, made a brief note, and immediately

returned it to plaintiff. Plaintiff was repeatedly assured that he was not under

arrest. After the judge and Officer Dietz listened to a few minutes of the

indistinguishable tape recording, the recorder was returned to plaintiff. The judge

kept the cassette tape but informed plaintiff that he could obtain a new cassette

tape from the clerk of the court on his way out. Approximately ten to twelve

minutes elapsed from the time plaintiff was stopped by Officer Dietz until he left

the courtroom after being questioned.

      Plaintiff then brought this civil rights action against Officers Dietz, Laiter

and Morgan, the city prosecutor, the municipal judge, and the City of Garnett

asserting claims under 42 U.S.C. §§ 1983, 1985, 1986, and 1988 and alleging

that this incident violated his rights under the Fourth, Fifth, Sixth, Thirteenth,

and Fourteenth Amendments to the Constitution.




                                          -3-
       In response to plaintiff’s complaint, defendants argued that none of

plaintiff’s constitutional rights had been violated and, alternatively, that if

they were, those rights were not clearly established. These contentions form

the qualified immunity defense which “protects public officials from

individual liability in a § 1983 action unless the officials violated clearly

established . . . constitutional rights of which a reasonable person would have

known.” Mick v. Brewer , 76 F.3d 1127, 1134 (10th Cir. 1996) (quotations

omitted).   2
                In analyzing plaintiff’s claims, the district court correctly chose to

determine whether plaintiff had alleged the deprivation of a constitutional right in

the first instance.    See County of Sacramento v. Lewis     , 523 U.S. 833, 841 n.5

(1998). After concluding that there had been no constitutional violation sufficient

to sustain any of plaintiff’s claims, the district court granted summary judgment

to defendants. In rejecting plaintiff’s Fourth Amendment claim, the district court

concluded that, because defendant Dietz had reasonable suspicion to believe that

plaintiff was engaged in wrongdoing and because the detention lasted no longer

than was necessary to effectuate the purpose of the stop, the investigative


2
       “[T]he affirmative defense of qualified immunity [] protects ‘all but the
plainly incompetent or those who knowingly violate the law.’”       Gross v. Pirtle ,
245 F.3d 1151, 1155 (10th Cir. 2001) (quoting      Malley v. Briggs , 475 U.S. 335,
341 (1986)). Once a defendant has advanced a qualified immunity defense, the
burden shifts to the plaintiff to establish (1) that the defendant’s action violated
a constitutional or statutory right and (2) that this right was clearly established at
the time of the defendant’s actions.   See id. at 1155-56.

                                              -4-
detention was legal as a      Terry stop. See Terry v. Ohio , 392 U.S. 1, 22-25 (1968).

However, while the stop in this case may have been lawful under          Terry , the

subsequent search was not.       See, e.g., United States v. Melendez-Garcia    , 28 F.3d

1046, 1051 (10th Cir. 1994) (holding initial stop justified under       Terry, but

subsequent seizure required probable cause).

       In Michigan v. Long , 463 U.S. 1032, 1052 n.16 (1983), the Court explained

that a search incident to a    Terry stop is “protective in nature and limited to

weapons.” Further, “[a]       Terry search, unlike a search without a warrant incident

to a lawful arrest, is not justified by any need to prevent the disappearance or

destruction of evidence of crime. . . . The sole justification of the search . . . is

the protection of police officers and others nearby. . . .”    Id. at 1049 n.14

(quotation omitted).    See also United States v. Gonzalez    , 763 F.2d 1127, 1130-31

(10th Cir. 1985) (noting that, unless a person consents to a search after a       Terry

stop, the officer must choose between arresting the person in order to conduct

an involuntary search or letting him go).

       Defendants do not suggest that the search in this case was mandated by

concerns for officer safety or that plaintiff consented to the search. Instead, they

argue that probable cause supported the stop and eventual search. We are not

persuaded.




                                              -5-
       It is true that, where probable cause to arrest exists and where certain

exigent circumstances are present, a “very limited” warrantless search can pass

constitutional muster.   See Cupp v. Murphy , 412 U.S. 291, 296 (1973);      United

States v. Rizzo , 583 F.2d 907, 910 (7th Cir. 1978). While the search here was

limited to a pat-down and was stopped immediately when defendant Dietz found

the tape recorder in plaintiff’s shirt pocket, and while the risk may have existed

that the tape would be erased or secreted during the delay while a warrant

was obtained, we conclude that probable cause did not exist to justify the search

in the first instance.

              Probable cause exists where the facts and circumstances within
       [the officers’] knowledge and of which they had reasonably
       trustworthy information [are] sufficient in themselves to warrant a
       man of reasonable caution in the belief that an offense has been or is
       being committed.

Brinegar v. United States , 338 U.S. 160, 175-76 (1949) (quotation omitted).

An officer does not need enough evidence to justify conviction, but he or she

must have more than a mere suspicion of wrongdoing.        See id. at 175; see also

United States v. Matthews , 615 F.2d 1279, 1284 (10th Cir. 1980).

       In reciting the facts of this case, the district court stated that “[d]uring the

hearing, Officer Tate witnessed Mr. Brown ‘playing with’ a handheld electronic

tape-recording device, an action Officer Tate interpreted as Mr. Brown’s attempt

to record the court proceedings.” Memorandum and Order at 2. If this were an


                                           -6-
accurate characterization of the record, we would then be required to determine

whether such information was sufficient to provide probable cause to arrest. The

record, however, does not support the district court’s statement of the facts.

       The only evidence in the record regarding Officer Tate’s knowledge is his

sworn affidavit in which he states simply that “[w]hen I was leaving the witness

stand, I saw a man in the front row with a tape recorder in his front shirt pocket.

I reported the presence of the tape recorder to City Attorney Terry Solander.”

R. Vol. I, tab A. The evidence that plaintiff had the tape recorder out of his

pocket and was “playing with it” comes from plaintiff’s own deposition taken

well after the incident at issue here.   See id. Attach. to Doc. 17 at 15-16. There

is no evidence that Officer Tate ever saw the tape recorder out of plaintiff’s

pocket or that he saw plaintiff manipulating it in any way.

       Based on this evidence, we conclude that the presence of a tape recorder

in plaintiff’s pocket did not warrant a “man of reasonable caution in the belief

that an offense has been or is being committed.”      See Brinegar , 338 U.S. at

175-76 (quotation omitted). The fact that plaintiff had a tape recorder in his

pocket supports only the mere suspicion that he had been recording court

proceedings, a threshold insufficient to establish probable cause.     See id. at 175.

We hold, therefore, that because defendants did not have probable cause to arrest




                                            -7-
plaintiff under the “exigent circumstances” exception, the subsequent warrantless

search of his person violated plaintiff’s rights under the Fourth Amendment.

       As mentioned above, the district court concluded that no constitutional

violation had occurred in this case, making it unnecessary for that court to fully

analyze defendants’ qualified immunity defense. Because we have concluded

that a constitutional violation did occur, we must now turn to the second prong of

the qualified immunity defense, i.e., that, even if plaintiff’s constitutional rights

were violated, such rights were not clearly established at the time of the violation.

If the rights violated were not clearly established, defendants will still be afforded

qualified immunity from this lawsuit. Whether a particular federal right was

clearly established is a question of law,   Mick , 76 F.3d at 1135, which we are as

well-qualified to determine as the district court.

       “[In order f]or the law to be clearly established, there must be a Supreme

Court or Tenth Circuit decision on point, or the clearly established weight of

authority from other courts must be as plaintiff maintains.”    Foote v. Spiegel ,

118 F.3d 1416, 1424 (10th Cir. 1997). Our review of the pertinent precedent

makes it clear that the constitutional right violated by defendants in this case

was clearly established at the time of their unlawful conduct.

       As discussed above, as early as 1983 in     Michigan v. Long , 463 U.S. 1032,

1052 n.16 (1983), the Supreme Court explained that a search incident to a      Terry


                                            -8-
stop is “protective in nature and limited to weapons.” Further, “[a]         Terry

search, unlike a search without a warrant incident to a lawful arrest, is not

justified by any need to prevent the disappearance or destruction of evidence of

crime. . . . The sole justification of the search . . . is the protection of police

officers and others nearby. . . .”   Id. at 1050 n.14 (quotation omitted).     See also

Gonzalez , 763 F.2d at 1130-31 (noting that, unless a person consents to a search

after a Terry stop, the officer has to choose between arresting the person in order

to conduct an involuntary search or letting him go).

       Thus, the law was clearly established well before 1997 that the reasonable

suspicion to stop someone under      Terry did not then justify a search for anything

other than a weapon. The contours of probable cause were also clearly

established by 1997,    see Brinegar , 338 U.S. at 175-76. A comparison of the

Brinegar standard, as set out above, with the facts as known by defendants at the

time of this incident belies defendants’ contention that probable cause existed to

arrest plaintiff. At the time of this incident, therefore, the law was clearly

established that the search could not be justified by the existence of probable

cause and the presence of exigent circumstances.

       Because plaintiff has successfully established that defendants’ actions

violated a clearly established constitutional right, qualified immunity will not

shield defendants from fully defending plaintiff’s Fourth Amendment claim.


                                             -9-
We therefore reverse that portion of the district court’s judgment granting

summary judgment to defendants Dietz, Laiter, Morgan, and Solander on

plaintiff’s Fourth Amendment claim. Because plaintiff’s Fourth Amendment

claim filed pursuant to 42 U.S.C. § 1983 is reinstated, we vacate the district

court’s grant of summary judgment on plaintiff’s claim for attorney’s fees under

42 U.S.C. § 1988.

       One remaining matter merits brief discussion. In his brief to this court

regarding his Fifth Amendment claims, plaintiff argues that the judge, defendant

Trumpp, had no jurisdiction to do what she did. This contention does not raise

a claim under the Fifth Amendment. Further, with regard to any claim that

plaintiff had the right to remain silent, we have held that such a right is

“narrowly limited . . . to pre-arrest custodial interrogations where incriminating

questions are asked.”     Pallottino v. City of Rio Rancho   , 31 F.3d 1023, 1026

(10th Cir. 1994). This was not a pre-arrest situation, and a request for name and

address is “‘an essentially neutral act’” unaccompanied by the threat of criminal

liability or incrimination.    Id. (quoting California v. Byers , 402 U.S. 424, 432

(1971)). Plaintiff relies on    Specht v. Jensen , 832 F.2d 1516 (10th Cir. 1987),

to bolster his Fifth Amendment claim; that case has no bearing on the Fifth

Amendment. The district court correctly relied on       Porter v. United States ,




                                            -10-
473 F.2d 1329 (5th Cir. 1973), as authority to dismiss plaintiff’s Fifth

Amendment claims.

      With regard to the remainder of plaintiff’s claims, we affirm for

substantially the reasons stated by the district court.

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED in part and REVERSED in part, and this case is REMANDED

to the district court for further proceedings in accordance with this order and

judgment.



                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Circuit Judge




                                          -11-
