United States of America v. Victor Lee Childers

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2743
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Victor Lee Childers
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: May 11, 2023
Filed: July 18, 2023
____________
Before SMITH, Chief Judge, COLLOTON and BENTON, Circuit Judges.
____________
SMITH, Chief Judge.
Victor Childers conditionally pleaded guilty to being a felon in possession of
a firearm and ammunition. His conditional plea preserved his right to appeal the
denial of his motion to suppress the ammunition recovered from his person and the

-- 1 of 8 --

firearms recovered from his vehicle. Childers appeals the district court’s1 denial of
his motion to suppress on these preserved issues. We affirm.
I. Factual Background
One early Saturday morning in July 2020, police received a 911 call reporting
gunfire near Riverfront Park, an isolated, wooded area along the Minnesota River in
Burnsville, Minnesota. The call reported that three males, two described as black and
one as “lighter-skinned,” were shooting into the river. R. Doc. 37, at 8. A separate
report described the “white male” as in his late twenties and wearing a black shirt. Id.
at 7. Police were dispatched to the Riverfront Park area to investigate the potential
violation. See Minn. Stat. § 609.66, subd. 1a(a)(3) (providing that reckless discharge
of a firearm within a municipality is a felony); R. Doc. 37, at 10 (testifying that a city
ordinance bars firearms within Riverfront Park). The officers sought to find the
individuals and investigate the gunshots. They planned to perform a temporary stop
that would include a pat-down check for firearms for safety concerns. At the
suppression hearing, officers who knew the area testified that Riverfront Park was
typically not very busy on Saturday mornings, and they anticipated being able to find
the group of persons seen in the area.
Upon arrival, an officer noticed three individuals matching the description
given in the 911 reports. The three men were leaving a wooded area and walking
toward a parked vehicle. Officers approached the trio—comprised of two black men
and Victor Childers, who is white. Childers was wearing a black shirt. The men
entered a silver car parked in the lot. Officers then followed protocol for a “high-risk
felony stop.” Id. at 31. Burnsville officers use this protocol when they believe
firearms are involved and may pose a risk to officer or bystander safety. Using this
1The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
-2-

-- 2 of 8 --

protocol, the officers approached the vehicle with guns drawn and ordered the men
out of the vehicle one by one.2
Childers sat in the driver’s seat. He opened the door and asked officers why he
was being stopped. After an officer explained the 911 call, Childers exited the vehicle
and was handcuffed. The other two occupants were removed from the vehicle and
secured as well, following the protocol. After handcuffing the three men, the officers
placed them in separate vehicles.
Next, an officer informed Childers that he was going to pat him down. After
beginning the pat-down search, the officer paused at Childers’s front-right pocket,
having felt what he believed were bullets. He emptied the pocket, discovering a cell
phone and a bandana wrapped around metallic objects. The officer asked Childers if
anything illegal was inside the bandana. Childers responded, “we just found this.” Id.
at 53. Childers then admitted that the contents of the bandana were bullets but
explained that he and his companions found the bullets.
Based on the 911 calls reporting gunshots and the discovery of ammunition in
Childers’s pocket, the officers expected that the vehicle contained a firearm.
Concerned for their safety and the public’s, the officers conducted a protective sweep
of the car. Within about two minutes, officers located the first of two handguns under
the driver’s seat where Childers had been sitting. Childers was arrested and charged
by indictment with being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He pleaded guilty, reserving the right
to challenge the validity of the officers’s search of the vehicle.
2These events were captured on body camera footage and entered into
evidence. See id. at 61 (citing Gov’t’s Ex. 3.)
-3-

-- 3 of 8 --

II. Discussion
Childers argues on appeal that (1) the high-risk felony stop protocol
transformed an investigative stop pursuant to reasonable suspicion, or Terry3 stop,
into a de facto arrest without probable cause; (2) the search of his person “exceeded
the permissible scope and intensity” of a valid Terry stop; and (3) the search of the
vehicle exceeded the scope of the protective sweep doctrine. Appellant’s Br. at 18.
The government responds that (1) use of the protocol was necessary to protect public
safety and justified by the circumstances; (2) the officer immediately recognized the
items as ammunition and so seized them as part of a lawful Terry stop; and (3) the
search of the vehicle was a lawful protective sweep, and, in the alternative, was
supported by probable cause following the discovery of the bullets. The district court
concluded that the officers lawfully stopped the vehicle and searched Childers’s
person and the vehicle. We review the district court’s legal conclusions de novo and
its factual findings for clear error. United States v. Parker, 993 F.3d 595, 601 (8th
Cir. 2021).
A. Whether the Stop Transformed Into An Arrest
Our circuit considers five principal factors in determining whether a Terry stop
has transformed into an arrest:
(1) the number of officers and police cars involved; (2) the nature of the
crime and whether there is reason to believe the suspect might be armed;
(3) the strength of the officers’ articulable, objective suspicions; (4) the
erratic behavior of or suspicious movements by the persons under
observation; and (5) the need for immediate action by the officers and
lack of opportunity for them to have made the stop in less threatening
circumstances.
3Terry v. Ohio, 392 U.S. 1 (1968).
-4-

-- 4 of 8 --

United States v. Johnson, 31 F.4th 618, 623 (8th Cir. 2022) (quoting Pollreis v.
Marzolf, 9 F.4th 737, 745 (8th Cir. 2021)). Analysis of these factors disfavor
concluding that this Terry stop transformed into an arrest.
The first and second factors weigh in favor of the government. The district
court found that about seven police officers arrived on the scene in three separate
vehicles. This number of officers did not display an excessive police presence given
that an illegal firearm discharge had been reported involving three individuals in a
public park. The nature of the suspected crime elevated police concerns for the safety
of the public and themselves. It was reasonable to believe that the persons they
identified and approached might be armed and had recently unlawfully discharged a
firearm. Thus, both factors justified a greater show of force in performing the Terry
stop.
The third factor also weighs in favor of the government. The officers were
responding to a 911 call from an identified eyewitness. The identified eyewitness
reported potentially felonious behavior involving a firearm. The eyewitness described
the group of three individuals with a reasonable degree of particularity: two black
males and one white male; the white male was wearing a black shirt and was
described as being in his late twenties. Given the small number of patrons in the park
at that time, a call describing this group of three males in an isolated area would likely
serve to winnow the potential persons of interest. Childers and his companions fit this
description.
The fourth factor favors neither the officers nor Childers to any meaningful
degree. The officers’ body camera recordings confirm that Childers complied with the
officers’ commands. Childers appeared to initially talk back to the officers but did not
behave disorderly or disobey their commands. The video showed that the officers
could not readily observe the vehicle’s occupants and thus reasonably directed them
-5-

-- 5 of 8 --

to exit it. Keeping the occupants separated was also reasonable because their actions
prior to exiting the vehicle could not be observed.
The fifth factor also weighs in the government’s favor. The officers observed
the trio exiting the woods and entering a vehicle. The officers then stopped the
vehicle as it was about to leave the parking lot. Given the “obvious exigencies of the
situation” the officers were “authorized . . . to continue the Terry stop by confining
the suspect[s] to the patrol car ‘until the situation stabilized and [they] could
determine if full custodial arrest and detention were warranted.’” United States v.
Martinez, 462 F.3d 903, 908 (8th Cir. 2006) (quoting United States v. Lego, 855 F.2d
542, 545 (8th Cir. 1988)). Based on our analysis of these five factors, we conclude
that the officers’ actions did not convert the valid Terry stop into an arrest. And,
despite Childers’s argument to the contrary, our precedent counsels the same.
When an officer has reason to believe a suspect is armed, we have held that
drawing a firearm and handcuffing the suspect does not automatically transform an
investigatory stop into an arrest under Terry v. Johnson, 31 F.4th at 623 (citing five
cases that each held that drawing weapons and handcuffing a suspect was appropriate
where officers had reason to believe suspect may be armed). The key point of inquiry
is the reasonableness of the officers’ belief that the subject of the stop is armed. See
Pollreis, 9 F.4th at 745–46 (distinguishing El-Ghazzawy v. Berthiaume, 636 F.3d 452,
457 (8th Cir. 2011), a case where there were no exigent circumstances and the officer
neither had reason to believe the suspect was armed nor observed suspicious behavior
by the suspect).
Similarly, placing suspects in squad cars does not transform a stop into an
arrest where the situation warrants the action. See Martinez, 462 F.3d at 908 (holding
that placing a suspected bank robber, who was believed to be armed, in a squad car
and returning him to the scene of the crime for identification was not an arrest); Lego,
-6-

-- 6 of 8 --

855 F.2d at 545 (holding no arrest where suspect was placed into a squad car so
officers could check his identification after discovering he was armed with a knife).
Here, the officers had at least a reasonable suspicion that at least one of the
suspects was armed or that a firearm was in the vehicle. The officers’ actions
warranted placing Childers in a separate secure location. Therefore, applying our
precedent to the instant facts, we conclude that the officers’ methods were permissible
and did not transform the Terry stop into an arrest. The district court did not err in so
concluding.
B. Whether the Search of Childers’s Person Was Permissible
“Under Terry, a law enforcement officer may conduct a warrantless pat-down
search for the protection of himself or others nearby in order to discover weapons if
he has a reasonable, articulable suspicion that the person may be armed and presently
dangerous.” United States v. Muhammad, 604 F.3d 1022, 1026 (8th Cir. 2010)
(internal quotation marks omitted). “A police officer lawfully patting down a
suspect’s outer clothing may seize any object whose contour or mass makes its
identity immediately apparent as incriminating evidence.” United States v. Cowan,
674 F.3d 947, 953 (8th Cir. 2012) (cleaned up).
[A]n item’s incriminatory nature is immediately apparent if the officer
at that moment had probable cause to associate the property with
criminal activity, meaning the facts available to the officer would
warrant a man of reasonable caution in the belief that certain items may
be . . . useful as evidence of a crime.
Id. (cleaned up).
The officer testified that he immediately identified the items in Childers’s
pocket as bullets. The district court believed him. This conclusion was not clearly
erroneous. Having identified the items as bullets, the officer was permitted to
-7-

-- 7 of 8 --

immediately seize them believing the bullets were “useful as evidence of a crime.”
Id. (internal quotation marks omitted). The bullets provided evidence of the crime the
officers were investigating—reckless discharge of a firearm. As such, they could be
lawfully seized.
C. Whether the Search of Childers’s Vehicle Was Permissible
Childers argues that the search of his vehicle was not justifiable under the
protective sweep doctrine. We need not address this argument. Upon lawful discovery
and seizure of the bullets from Childers’s person, the officers had probable cause to
believe that Childers had committed a felony involving a firearm. Probable cause that
the vehicle contained evidence of criminal activity—here, the firearm used in the
reckless discharge—“has long been held to justify a warrantless search of the
automobile and seizure of the contraband.” United States v. Shackleford, 830 F.3d
751, 753 (8th Cir. 2016). It is thus unnecessary to determine if the search satisfied the
requirements for a protective sweep.
III. Conclusion
We affirm.
______________________________
-8-

-- 8 of 8 --