F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 31 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-4169
JOSEPH RUSSELL MIKULSKI,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:00-CR-227-S)
Benjamin A. Hamilton, Salt Lake City, Utah, for the Defendant-Appellant.
Wayne T. Dance, Assistant United States Attorney (Paul M. Warner, United
States Attorney, with him on the brief), Salt Lake City, Utah, for the
Plaintiff-Appellee.
Before KELLY , BALDOCK , and HENRY , Circuit Judges.
HENRY , Circuit Judge.
Joseph Russell Mikulski was charged in a one-count indictment with
possession of stolen mail in violation of 18 U.S.C. § 1708. After the district court
denied Mr. Mikulski’s motion to suppress, Mr. Mikulski entered a conditional
plea of guilty to the charge. Mr. Mikulski received a sentence of sixty months of
imprisonment. He now appeals the district court’s denial of his motion to
suppress. He argues that the evidence should be suppressed because (1) the
officers exceeded their jurisdictional authority when they arrested him; (2) the
officers lacked reasonable suspicion to detain him; and (3) the subsequent
detention was also unlawful. We hold that the officers’ actions were permissible
under Utah Code Ann. § 77-9-3, which allows an officer to exercise authority
outside of his established jurisdiction when a public offense is committed in an
officer’s presence. We also hold that the initial questioning and the subsequent
detention of Mr. Mikulski were permissible. For the reasons stated below, we
affirm the decision of the district court.
I. BACKGROUND
The background facts are not in dispute, and we reiterate them as found by
the district court. On February 9, 2000, Detective Wally Perschon was assisting
other deputies from Utah County, Utah in trying to recover stolen property. The
property had been stolen in Utah County, but information from an informant
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suggested that the property was (1) located in the West Valley-Kearns area of Salt
Lake County at a house located at 4560 West 5780 South, and (2) in the
possession of a man named Johnnie Green. Detective Perschon did not have a
physical description of Mr. Green, other than that he was a white male who drove
a truck.
Detective Perschon, accompanied by three other members of the Utah
County Sheriff’s office, Detectives Richard Case, Darrin Durfey, and Sergeant
Jerry Monson, traveled to Salt Lake County to locate the property and to talk to
Mr. Green. No other officers from either Salt Lake County or the West Valley
City Police Department were contacted or present at any time during the Utah
County officers’ visit to Salt Lake County until after Mr. Mikulski’s arrest.
Upon reaching the address at approximately 9:00 pm, Sergeant Monson and
Detective Case knocked on the door of the house at 4650 West 5780 South. The
occupants informed them that Mr. Green had just left, and the officers waited
inside the house. In order to avoid detection, Detectives Perschon and Durfey
waited for Mr. Green approximately one block down the street from the residence
in an unmarked green vehicle.
After about fifteen minutes, a man and a woman exited the house to smoke
cigarettes on the porch. During this time, a pickup truck approached the house
and pulled to the side of the street opposite to oncoming traffic, right before the
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house’s driveway. An individual exited the passenger’s side and approached the
house. According to testimony from Detective Perschon, the individuals on the
porch appeared to wave the passenger off, and the individual returned to the
truck.
Detective Perschon, with Detective Durfey, suspecting that Johnny Green
was in the truck, drove up to the truck. Detective Perschon did not use emergency
lights and he did not block the truck. The detectives, dressed in plainclothes,
approached the truck, one on each side of the pickup. While approaching the
vehicle, Detective Perschon noticed the truck lacked a front license plate. The
detectives identified themselves and showed the truck’s occupants, a male driver
and a female passenger, their badges. Detective Perschon testified that he was
uncertain at what point in time Detective Durfey and Sergeant Monson joined him
around the truck. Detective Perschon testified that as he approached the vehicle,
Mr. Mikulski appeared “very nervous” but “[n]ot aggressive.” Rec. vol. II, at 47
(Motion to Suppress Hr’g, dated Aug. 4, 2000). Detective Perschon asked the
driver who he was, and the driver identified himself as Joseph, but stated that he
had no identification.
Detective Perschon asked again for identification, and the driver again
stated that he had none. At this point, Detective Perschon suspected that the
driver was hiding his identity. Detective Perschon testified that other than the
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missing front plate and a potential parking violation, he had no reason to believe
that Mr. Mikulski had committed a crime.
Detective Perschon testified that he then asked the driver to step out of the
truck to search him for identification and to check for weapons. Detective
Perschon admitted that although he had no reason to believe that the driver was
armed, his standard practice was to conduct a frisk in the interest of officer
safety. Detective Perschon also testified that Mr. Mikulski’s nervous demeanor
made the detective concerned for his own safety.
Before conducting a pat-down search, Detective Perschon asked the driver
if he had any weapons on his person. The driver responded that he had a knife on
his belt. Detective Perschon told Mr. Mikulski to put his hands on the vehicle
where the detective could see them. Detective Perschon performed a pat-down
search, which also revealed a pistol in the driver’s left front pocket. Detective
Perschon placed the driver under arrest for carrying a concealed firearm.
Detective Perschon told the driver not to move, and requested assistance in
securing the weapon. After handcuffing Mr. Mikulski, Detective Perschon
conducted a further pat-down search that revealed drugs in the driver’s left shirt
pocket. Detective Perschon also found a wallet on the driver with several pieces
of identification, with various names. Mr. Mikulski identified himself as Joseph
Mikulski. Detective Perschon directed another officer to run a records check,
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because of the conflicting identifications. Mr. Mikulski was eventually turned
over to Salt Lake County authorities. The Salt Lake County Sheriff’s Office
agreed to transport Mr. Mikulski to jail and to impound the vehicle.
After contacting the Salt Lake County authorities, Detective Perschon
testified that he conducted a vehicle inventory, because “[the Salt Lake County
authorities] didn’t want to.” Rec. vol. II, at 61. The inventory revealed a
backpack containing multiple and conflicting pieces of identification, and
equipment to make false identifications, credit card statements, and bills that were
not in Mr. Mikulski’s name, other people’s property, cameras, telephones, and
more drugs. The stolen mail formed the predicate for the indictment for violation
of 18 U.S.C. § 1708.
II. DISCUSSION
In reviewing the district court’s denial of Mr. Mikulski’s motion to
suppress, we view the evidence in the light most favorable to the district court’s
determination and accept the factual findings of the district court unless they are
clearly erroneous. United States v. Wood , 106 F.3d 942, 945 (10th Cir. 1997).
Our ultimate determination of reasonableness under the Fourth Amendment is a
question of law that we review de novo. See id.
Mr. Mikulski, in challenging the district court’s denial of his motion to
suppress, argues that (1) the officers exceeded their authority by exercising power
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beyond the limits of their jurisdiction in violation of Utah Code Ann. § 77-9-3;
(2) the initial encounter was not consensual; and (3) the subsequent detention and
pat-down search were also unlawful. First, we consider Mr. Mikulski’s charge
that the officers acted unlawfully in exceeding their jurisdiction. We then turn to
the balance of Mr. Mikulski’s arguments.
A. Extra-jurisdictional activities
Mr. Mikulski contends that when the Utah County officers decided to
venture into Salt Lake County to locate Johnnie Green, that they were required to
notify Salt Lake County authorities, pursuant to Utah Code Ann. § 77-9-3, which
adopts the Uniform Act on Fresh Pursuit. The statute provides that:
(1) Any peace officer authorized by any governmental entity of this
state may exercise a peace officer's authority beyond the limits of such
officer's normal jurisdiction as follows:
(a) when in fresh pursuit of an offender for the purpose of arresting and
holding that person in custody or returning the suspect to the
jurisdiction where the offense was committed;
(b) when a public offense is committed in such officer’s presence;
(c) when participating in an investigation of criminal activity
which originated in the officer's normal jurisdiction in cooperation
with the local authority; or
(d) when called to assist peace officers of another jurisdiction.
(2) (a) Any peace officer, prior to taking any action authorized by
Subsection (1), shall notify and receive approval of the local law
enforcement authority, or if the prior contact is not reasonably
possible, notify the local law enforcement authority as soon as
reasonably possible.
(b) Unless specifically requested to aid a peace officer of another
jurisdiction or otherwise as provided for by law, no legal responsibility
for a peace officer's action outside his normal jurisdiction, except as
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provided in this section, shall attach to the local law enforcement
authority.
Utah. Code Ann. § 77-9-3 (emphasis added).
The government cites little helpful authority to directly support its
contention that upon discovery of the partially loaded firearm, in the interest of
officer safety, exigent circumstances existed to justify the warrantless arrest.
Rather, the government curiously cites Ross v. Neff , 905 F.2d 1349 (10th Cir.
1990), where we noted that an arrest made in hot pursuit would likely be
constitutionally valid. 1
See id. at 1354, n.6. The government also concedes that
before the district court, it admitted that “the officers did not comply with Utah
State law in coordinating their investigation with local law enforcement in Salt
Lake County.” Aple’s Br. at 22, n.8 2
Here, the magistrate judge and the district court did not conclude that
exigent circumstances existed, but, rather, determined that the officers’ violation
1
No allegation of hot pursuit exists here. Ross was a § 1983 action arising
from the plaintiff’s arrest by an Oklahoma state police officer of the Cherokee
Indian defendant on Indian Tribal Trust land. We held that the extra-
jurisdictional arrest was invalid and stated that “[a]bsent exigent circumstances,
[an arrest executed outside of the arresting officer’s jurisdiction] is presumptively
unreasonable,” and “violates the Fourth Amendment.” Ross , 905 F.2d at 1353-54.
2
Despite this concession, the government declined to “address whether the
arrest occurred outside of the officers’ territorial jurisdiction.” Aple’s Br. at 22.
The government’s omission of discussion of this obviously relevant issue is not
helpful to this court.
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of state law did not rise to the level of a federal constitutional violation. In so
finding, the district court relied upon United States v. Green , 178 F.3d 1099, 1106
(10th Cir. 1999), where we upheld a warranted search conducted by officers
“outside their jurisdiction as defined by state law.”
In Green, we noted that the “exclusionary rule is only concerned with
deterred [federal] Constitutional violations,” id. (internal quotation marks and
citations omitted), and that “the fact that the arrest, search, or seizure may have
violated state law is irrelevant as long as the standards developed under the
Federal Constitution were not offended.” Id. However, we also noted in Green
that Ross was easily distinguishable because Ross “involved a warrantless arrest
outside the arresting officer’s jurisdiction,” Green , 178 F.3d at 1106 (emphasis in
original), and that Green involved a warranted search. We noted that “[a]
warrantless arrest is vastly different from a warranted search,” and reiterated
Ross’s holding that a warrantless arrest outside the arresting officer’s jurisdiction
is presumptively invalid. See id. (“[W]e decline to extend Ross to the context of
warranted searches.”).
The officers’ violation of state law is not, without more, necessarily a
federal constitutional violation. See United States v. Baker, 16 F.3d 854, 856 n.1
(8th Cir. 1994) (“A police violation of state law does not establish a Fourth
Amendment violation. However, the question of compliance with state law may
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well be relevant in determining whether police conduct was reasonable for Fourth
Amendment purposes.”). We thus must determine whether the officers’ actions
amounted to a federal violation.
The Seventh Circuit recently distinguished Ross in an instructive opinion,
Pasiewicz v. Lake County Forest Preserve Dist. , 270 F.3d 520, 527 n.3 (7th Cir.
2001). In Pasiewicz , the plaintiff, after his acquittal on a public indecency
charge, filed a § 1983 action alleging, in part, that the arresting officers acted
without jurisdiction and without a warrant. The plaintiff had been arrested within
the jurisdiction of the Illinois State forest preserve police forces. See id. By
statute, a state officer’s extraterritorial jurisdiction must be directed by the forest
preserve’s chief of police or other head. See id. at 526.
The Seventh Circuit noted that unlike in Ross , Pasiewicz did not implicate a
state officer’s ability “to arrest a Native American on tribal trust land.” Id. at 526
n.3 (citing Ross , 905 F.2d at 1352). Rather, Pasiewicz “concern[ed] the
jurisdiction of officers acting between political subdivisions of the same state .”
Id. (emphasis added); compare with Ross , 905 F.2d at 1354 (holding that “[t]he
‘borrowing’ provision of [the Assimilative Crimes Act] . . . does not grant states
independent authority to enforce their own laws over Indians on Indian land”) and
with United States v. Baker , 894 F.2d 1144, 1147 (10th Cir. 1990) (suppressing
evidence because county district court exceeded its jurisdiction when it issued a
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search warrant for property on a tribal reservation because the state had no
jurisdiction over the reservation to enforce state law, including to execute a
search warrant, unless Congress consented to the state’s jurisdiction).
Here, the situation is analogous to that in Pasiewicz . Utah law authorizes
the assumption of criminal jurisdiction by any peace officer authorized by “any
[Utah] governmental entity.” § 77-9-3. We remain troubled for several reasons,
however. First, there is no allegation of fresh pursuit. Second, the Utah County
detectives had ample time to coordinate a four-person investigation in Salt Lake
County, but apparently never considered § 77-9-3(2)(a)’s requirement that they
“notify and receive approval of the local law enforcement authority” before
setting off to conduct surveillance at the residence located at 4560 West 5780
South. Furthermore, it seems clear that the officers knew they were outside their
jurisdiction, because they contacted the Salt Lake authorities after the arrest.
“Such a blatant disregard of state law and the chain of command . . . weigh[s] on
the scales of reasonableness.” Pasiewicz , 270 F.3d at 527 (noting that the
officers did not “kn[ow] they lacked jurisdiction”).
The government tries to emphasize that exigent circumstances, analogous to
the immediacy of “fresh pursuit,” existed here. This argument is difficult to
accept. The government concedes that the Utah county officers ignored the state
statute, but it refuses to acknowledge that any exigency may have responsibly
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been avoided through adherence to the statute, via notification of the Salt Lake
County authorities. Although it might not be reasonable to expect an officer to
anticipate the events that ensue during a traffic stop, the Utah County officers
here had complete control of the parameters of the investigation, when and where
it occurred, and who was involved. It is reasonable to expect the assurance that
officers will comply with the relevant laws so as to avoid the manufacture of
“exigencies.” See United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir. 1984)
(noting that in the context of a warrantless arrest, “[p]olice officials . . . are not
free to create exigent circumstances to justify their warrantless intrusions.”).
Despite the apparent violation of state law, we cannot say that the officers’
actions amounted to a federal violation. Detective Perschon, upon noticing that
the pickup truck lacked a front license plate, had probable cause to believe that a
public offense had been committed. See State v. Trane , No. 20010068, 2002 WL
31055998, at *8, 57 P.3d 1052 (Utah Sept. 17, 2002) (holding officer authorized
to make arrest for misdemeanor and noting that “[t]he term ‘public offense’ under
section 77-7-2(1) generally includes misdemeanors”). 3
Detective Perschon soon
3
Section 77-7-2 states:
A peace officer may make an arrest under authority of a warrant or may,
without warrant, arrest a person:
(1) for any public offense committed or attempted in the presence of
any peace officer . . . .
Utah Code Ann. § 77-7-2(1).
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learned that Mr. Mikulski was armed. Under the totality of the circumstances,
any contact with the local law enforcement authority at this time was not
“reasonably possible.” Utah Code Ann. § 77-9-3(2)(a). We hold, that under the
facts before us, he was then authorized to arrest Mr. Mikulski. Furthermore. the
record indicates that the officers contacted the Salt Lake County officials soon
after Mr. Mikulski’s arrest.
We, like the Utah Supreme Court, do not condone the officers’ violation of
the law or their failure to comply with proper law enforcement procedures,
particularly in an area where several municipalities must work together in order to
protect the rights of citizens and achieve the purposes of cooperative and
effective law enforcement. See State v. Fixel , 744 P.2d 1366, 1369 (Utah 1987). 4
B. Legality of the Initial Encounter
Mr. Mikulski contends that the detectives lacked the requisite reasonable
suspicion when they approached Mr. Mikulski and questioned him. The district
4
Separately, we note that Utah has evaluated a violation of § 77-9-3 and
determined that the “legislature has not seen fit to enact any statutory remedy” for
such misconduct. Fixel , 744 P.2d at 1369. “It is only where the violation also
implicates fundamental, constitutional concerns, is conducted in bad-faith or has
substantially prejudiced the defendant that exclusion may be an appropriate
remedy.” Id. (internal quotation marks omitted) (emphasis in original). Here, in
contrast, we have determined that the violation does not implicate constitutional
deprivation of rights, there has been no allegation of bad faith, and there has been
no suggestion of prejudice.
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court, however, determined that the initial interaction between Detective Perschon
and Mr. Mikulski was a consensual encounter. We agree. The officers did not
make a sufficient showing of authority to sufficiently convey to Mr. Mikulski that
his liberty was restrained. The detectives, dressed in plainclothes, walked up to
the truck that was stopped. The detectives’ vehicle did not block the Mr.
Mikulski’s path or exit. While the detectives displayed their badges to identify
themselves, they did not display a weapon or use any coercive language or tone.
The questioning took place in a public setting in full view of two people on the
porch of 4560 West 5780 South and in front of the truck’s passenger. Although
“[Mr.] Mikulski was never informed by Detective Perschon that he need not
answer the detective’s questions,” Rec. vol. I, doc. 49, at 16 (Magistrate Judge’s
Report and Recommendation, filed Feb. 15, 2001), Detective Perschon gave Mr.
Mikulski “no reason to believe that [he was] required to answer the [detective’s]
questions.” United States v. Drayton , 122 S. Ct. 2105, 2112 (2002). Finally, the
record does not indicate that the officers behaved in a manner that was
threatening. We agree with the district court that the initial encounter was
consensual. See United States v. Lambert, 46 F.3d 1064, 1067 (10th Cir. 1995)
(holding that a police officer’s encounter with the defendant had been consensual,
and stating that “a seizure does not occur simply because a police officer
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approaches an individual and asks a few questions”) (citing Florida v. Bostick ,
501 U.S. 429, 434 (1991)).
C. Continued Detention of Mr. Mikulski
Mr. Mikulski next contends that the district court erred when it determined
that Detective Perschon’s continued questioning and subsequent pat-down search
of Mr. Mikulski were supported by reasonable suspicion. After reviewing the
record in the light most favorable to the government, considering the totality of
the circumstances, and deferring to the district court’s assessment of the
credibility of the witnesses, we conclude that the district court’s factual findings
are not clearly erroneous. See, e.g., United States v. Long , 176 F.3d 1304, 1307
(10th Cir. 1999). Upon de novo review of the legal question presented, see
United States v. Caro , 248 F.3d 1240, 1243 (10th Cir. 2001), we agree with the
district court’s ultimate determination of reasonableness.
As noted above, Detective Perschon had already noted the lack of a front
license plate on the pickup truck when he approached Mr. Mikulski. In addition,
Mr. Mikulski seemed nervous and was unable to confirm his identity. Detective
Perschon testified that, in his experience, such reticence often results from a
driver whose license has been suspended or who may have an outstanding
warrant. Based on the totality of the circumstances, Detective Perschon was
justified in asking Mr. Mikulski to step out of the truck. In addition, we agree
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with the district court that Detective Perschon’s inquiry about the presence of
weapons and subsequent protective frisk were reasonable. See Terry v. Ohio , 392
U.S. 1, 30 (1968) (officer may pat-down suspect for weapons when he suspects
criminal activity and he has a reasonable fear for his own or others safety). Mr.
Mikulski told Detective Perschon he had a knife in his belt. The frisk was
justified. Cf. Terry , 392 U.S. at 27 (“The officer need not be absolutely certain
that the individual is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others
was in danger.”) (citations omitted).
Under the totality of these circumstances, we agree with the district court
that there was a particularized and objective basis for suspecting Mr. Mikulski of
criminal activity and that Detective Perschon’s actions during the detention were
reasonably related in scope to the circumstances that justified the extended
detention. As a result, Mr. Mikulski’s detention did not violate the Fourth
Amendment.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s denial of Mr.
Mikulski’s motion to suppress.
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United States v. Mikulski
Court: Court of Appeals for the Tenth Circuit
Date filed: 2003-01-31
Citations: 317 F.3d 1228
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