United States of America v. Deandre Joseph Warren

United States Court of Appeals
For the Eighth Circuit
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No. 19-2405
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Deandre Joseph Warren
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 25, 2020
Filed: January 12, 2021
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Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
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LOKEN, Circuit Judge.
Deandre Warren pleaded guilty to possession with intent to deliver heroin
within 1,000 feet of a school, reserving his right to appeal the district court Order
denying his motion to suppress.1 The court then determined that Warren is a career
1The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa, adopting in part and modifying in part the Report and

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offender and sentenced him to 188 months imprisonment. On appeal, Warren argues
the court erred in not suppressing controlled substances found at the time of his arrest
as fruits of an unlawful seizure, and in determining he is a career offender.
Reviewing factual findings for clear error and questions of law de novo, we affirm.
See United States v. Gordon, 741 F.3d 872, 875 (8th Cir. 2013) (standard of review).
I. Fourth Amendment Seizure Issues
At 8:43 p.m. on August 4, 2018, Cedar Rapids Police Officers Ryan Harrelson
and Alexander Haas responded to a noise complaint regarding a house where Haas
knew there had been frequent calls of disturbances and drug activity. Parking in front
of the residence, the officers heard no noise as they exited their squad car. Harrelson
walked to the front of the house to ask its occupants about the complained-of noise.
Haas scouted nearby to determine other possible sources of the noise, standard
protocol in investigating noise complaints that have no apparent source.
Behind the house, Officer Haas saw a parked car with its headlights on in an
unlit alley facing the yard of the home, with a pair of hands sticking out the front
driver’s side window. Haas cautiously approached and explained to the driver he was
investigating a noise complaint. Cedric Jenkins was in the driver’s seat, Warren was
in the front passenger seat, and two women were in the back seat. Haas asked the
driver for identification. Jenkins replied they had just arrived, he had driven to the
house, and he did not have a driver’s license. Haas asked Jenkins to step out of the
vehicle while he verified Jenkins’s identity and investigated the traffic violation of
driving without a license. See Iowa Code § 321.174. At this point, Warren began to
exit the car. Officer Haas said, “Sir, can you just stay in there for me, please?”
Warren complied. Jenkins stepped out and spoke with Officer Haas.
Recommendation of the Honorable Mark A. Roberts, United States Magistrate Judge
for the Northern District of Iowa.
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Haas radioed that he was behind the house with four persons and requested
backup. Officer Harrelson ended his conversation with the occupants and went
behind the house to assist Officer Haas. As Harrelson approached the passenger side
of the vehicle, he smelled marijuana emanating from the vehicle, covered by cigarette
smoke. Officer Otis also responded to the call for backup, arriving two minutes later.
As he approached the passenger side, Otis smelled cigarette smoke but not marijuana.
He talked with Warren, who was cooperative but nervous. Otis allowed Warren to
reach in the glove compartment for a cigarette. When Warren appeared to reach
under his left leg, Otis shined his flashlight down inside the front passenger door and
saw a baggie of marijuana tucked between the passenger seat and the door. Otis
removed Warren from the vehicle, handcuffed him, and put him in the back seat of
Haas’s squad car, which was now in the alley. Otis searched the rest of the parked
car, finding an additional bag of marijuana and a small bag of heroin.
In the squad car, Warren complained he was hot and claustrophobic. Haas let
him sit in the back with the door open or stand up. Officer Shuman arrived and
parked next to Haas’s squad car. Officers Shuman and Otis saw Warren stand up,
lean against the squad car, reach into his underwear, and make a “strange shaking
motion.” A baggie containing nine smaller baggies of marijuana and twenty two
baggies of heroin fell to the ground and was seized.
Warren moved to suppress all controlled substances seized on August 4, 2018.
The only issue on appeal is whether the drugs were fruits of an unlawful seizure when
Officer Haas instructed Warren to remain in the car without probable cause,
reasonable suspicion, or other sufficient basis. After a hearing, the magistrate judge
issued a lengthy Report and Recommendation that the motion to suppress be denied.
The district court adopted the report with modifications, concluding in a lengthy
Order that Warren was not seized when Officer Haas asked him to remain in the car.
Alternatively, even if the request was a directive constituting a seizure under United
States v. Mendenhall, 446 U.S. 544, 554-55 (1980), the court concluded that Officer
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Haas was engaged in a permissible investigative stop of driver Jenkins’s traffic
violation, and legitimate officer safety concerns justified asking Warren to remain in
the car to preserve the status quo.
Warren argues that he was subject to an unlawful seizure when Officer Haas
asked him to “just stay in there for me, please.” As the district court recognized, a
person is seized within the meaning of the Fourth Amendment “when the officer, by
means of physical force or show of authority, terminates or restrains [the person’s]
freedom of movement.” Brendlin v. California, 551 U.S. 249, 254 (2007) (quotation
omitted). Seizure is an issue of law we review de novo. A seizure occurs “if, in view
of all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.” INS v. Delgado, 466 U.S. 210, 215 (1984).
Not every direction by an officer constitutes a seizure. See, e.g., United States v.
Valle Cruz, 452 F.3d 698, 706 (8th Cir. 2006) (officer telling vehicle driver to “sit
tight” did not effect a seizure). There is “a constitutionally significant distinction
between an official command and a request that may be refused.” United States v.
Vera, 457 F.3d 831, 835 (8th Cir. 2006), cert. denied, 549 U.S. 1230 (2007). Here,
the district court concluded that Haas’s statement, “Sir, can you just stay in there for
me, please,” was a request, not a command. Haas spoke to Warren with respect in a
voice that was polite, calm, and normal in volume and tone. When Warren complied,
Haas thanked him. Warren’s compliance did not convert the request into a command.
We agree.
Warren argues that a fair paraphrasing of Haas’s politely worded request when
Warren attempted to get out of the car was, “Don’t get out of the car,” as evidenced
by Haas’s testimony at the suppression hearing, “If he walked away, I would have
told him to stop.” But this post-hoc rephrasing of a request into the words of a
command disregards the fact that Haas’s statement and actions did not manifest an
intent to compel compliance. Haas’s subjective intent to stop Warren if he attempted
to walk away “is irrelevant except insofar as that may have been conveyed to
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[Warren].” Mendenhall, 446 U.S. at 554 n.6. Haas’s words and manner left Warren
the choice whether to leave or stay. “There was no application of force, no
intimidating movement, no overwhelming show of force, no brandishing of weapons,
no blocking of exits, no threat, no command, not even an authoritative tone of voice.”
United States v. Drayton, 536 U.S. 194, 204 (2002). Warren chose to comply with
the request, presumably for an obvious reason having nothing to do with whether he
interpreted it as a request or a command: the most likely way to avoid discovery of
the baggies of heroin and marijuana on his person was to cooperate with an officer
while the officer completed a routine traffic investigation of driver Jenkins. It is pure
speculation how Haas would have responded if Warren, instead of complying, had
continued to exit the car or asked Haas whether he was free to leave. In these
circumstances, the words Haas used and his tone and manner in making a request to
cooperate are controlling. Thus, there was no seizure until Officer Otis discovered
controlled substances in the car and ordered Warren out of the car.
Alternatively, even if Officer Haas’s request is construed as a command that
passenger Warren remain in the parked vehicle, we agree with the district court that
officer safety concerns made this brief seizure objectively reasonable. Warren does
not dispute that Officer Haas had reasonable suspicion of a traffic violation that gave
him authority to detain and investigate driver Jenkins. See Terry v. Ohio, 392 U.S.
1, 21 (1968). But he argues Haas had no authority to detain passenger Warren.
During a lawful traffic stop, officers can take actions that are “reasonably
necessary to protect their personal safety and to maintain the status quo during the
course of the stop.” United States v. Hensley, 469 U.S. 221, 235 (1985). In
Maryland v. Wilson, 519 U.S. 408, 415 (1997), the Supreme Court held that an
officer may order passengers out of the car pending his investigation of the traffic
stop. “Danger to an officer from a traffic stop is likely to be greater when there are
passengers in addition to the driver in the stopped car.” Id. at 414. Likening this
situation to the detention of the occupants of a home during a warrant search, the
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Court explained that “[t]he risk of harm is minimized if the officers routinely exercise
unquestioned command of the situation.” Id., quoting Michigan v. Summers, 452
U.S. 692 (1981). In Brendlin, the Court further noted it is “reasonable for passengers
to expect that a police officer at the scene of a crime, arrest, or investigation will not
let people move around in ways that could jeopardize his safety.” 551 U.S. at 258.
In United States v. Sanders, we held that an officer making a traffic stop may
“reinstate[] the status quo” by asking a passenger who left the vehicle to reenter. 510
F.3d 788, 791 (8th Cir. 2007), cert. denied, 553 U.S. 1013 (2008); cf. United States
v. Holt, 264 F.3d 1215, 1223 (10th Cir. 2001) (en banc) (asking passenger to remain
in vehicle); Rogala v. District of Columbia, 161 F.3d 44, 45 (D.C. Cir. 1998) (same);
United States v. Moorefield, 111 F.3d 10, 11 (3d Cir. 1997) (same).
Warren argues the situation at issue is not controlled by these cases because the
vehicle was already stopped when Haas began his traffic investigation and therefore
Warren had a heightened liberty interest in leaving the vehicle that outweighed the
government interest in securing the scene. As always, the Fourth Amendment issue
is whether, viewing the totality of the circumstances, Officer Haas was objectively
reasonable in asking Warren to remain in the car while Haas investigated the traffic
violation. See Arizona v. Johnson, 555 U.S. 323, 332 (2009). Viewed in this light,
we do not agree that the analysis is different because the vehicle was already parked.
Haas was investigating a noise complaint behind a house known for frequent
disturbances and drug-related activity. He encountered four persons in a parked car
with its lights on in an unlit alley. He approached cautiously and asked what they
were doing. When driver Jenkins admitted driving there without a license, Haas had
reasonable suspicion to detain Jenkins while he investigated a traffic violation that
would preclude Jenkins from driving away. Warren’s attempt to exit the car
presented a real risk to officer safety. It was dark and Haas was alone, outnumbered
four to one. If there was contraband in the car or other criminal activity afoot, he
faced a risk of violent encounter. See Johnson, 555 U.S. at 331; Maryland v. Pringle,
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540 U.S. 366, 373 (2003). So he asked Warren to stay in the car and radioed for
backup assistance.
Traffic stops are inherently fraught with danger to police officers, “so an officer
may need to take certain negligibly burdensome precautions in order to complete his
mission safely.” Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015). The
safety of the officer “is both legitimate and weighty.” Pennsylvania v. Mimms, 434
U.S. 106, 109 (1977). Here, asking Warren to stay in the car was no more
burdensome than asking a passenger to exit the vehicle during a traffic stop, the
police action upheld in Wilson, 519 U.S. at 415. Reasonable actions at the scene of
an investigation to ensure safety and preserve the status quo require no probable
cause or reasonable suspicion. See Brendlin, 551 U.S. at 258. Moreover, if driver
Jenkins lacked a license and could not drive the vehicle away, it might be to the
officers’ and the passengers’ advantage if Warren was licensed and willing to take
control of the car so it need not be impounded, leaving its occupants stranded.
For these reasons, the Order denying Warren’s motion to suppress is affirmed.
II. Sentencing Issues
Warren argues the district court erred in determining he is a career offender
because his three prior Illinois drug convictions were not “controlled substance
offenses” under USSG § 4B1.2(b), and his prior Iowa conviction for Domestic
Assault with strangulation was not a “crime of violence” under § 4B1.2(a)(1).
Warren concedes that we rejected the first argument in United States v. Merritt, 934
F.3d 809, 811 (8th Cir. 2019), cert. denied, 140 S. Ct. 981 (2020), and the second
argument in United States v. Boleyn, 929 F.3d 932 (8th Cir. 2019), cert. denied, 140
S. Ct. 1128 (2020). As a panel, we are bound by these controlling decisions.
Accordingly, we need not consider the government’s alternative argument that any
error was harmless because the district court stated that if its career offender analysis
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was wrong, “I would reach the same sentence under the 3553(a) factors.” See, e.g.,
United States v. McGee, 890 F.3d 730, 737 (8th Cir. 2018). Warren has preserved
these issues for en banc review.
The judgment of the district court is affirmed.
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