F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 18 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-3187
(Kansas)
GREGORY REESE FISHER, (D.C. No. 02-CR-40078-SAC)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, LUCERO, and O'BRIEN, 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Gregory Reese Fisher pled guilty to possession of ephedrine and
pseudoephedrine with the intent to manufacture methamphetamine in violation 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This order and judgment is not binding precedent except under the doctrines of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.
21 U.S.C. § 841(c)(1). He appeals the district court’s denial of his motion to
suppress. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Background
On the morning of May 8, 2002, an employee at the Target store in Salina,
Kansas, noticed Fisher attempting to conceal an item from the electronics
department. The employee reported Fisher to Diane Dowell, the assets protection
team leader at the store. Dowell began visual surveillance of him. She followed
Fisher as he walked past the checkout lanes and into the food section, where he
eventually turned down a snack aisle. As Dowell walked past this same aisle, she
observed Fisher with his hand extended up into a shelf. When Fisher saw Dowell,
he quickly pulled his hand away from the shelf. He also positioned his body to
prevent Dowell from seeing what was on the shelf.
When Fisher left the food section, Dowell found ten packages of lithium
batteries behind some food items. 1 Knowing that lithium is used to manufacture
methamphetamine, Dowell instructed another employee to contact the police
department’s drug task force. Shortly thereafter, Investigator Gary Hanus arrived
at the store.
Agent Hanus and Dowell continued surveillance of Fisher, who at that time
was trying on a pair of shoes in the shoe department. Fisher remained in the store
1
Each package contained one or two batteries.
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another forty-five minutes. He then purchased a pair of shoes and some other
items and left the store. Agent Hanus observed him walk across the Target
parking lot to the Sam’s Club store. Fisher placed his three Target shopping bags
in the vestibule outside the Sam’s Club store entrance and went inside. Agent
Hanus and another agent followed Fisher around the store. Agent Hanus observed
Fisher continually looking over his shoulder to see if someone was following him,
leading Agent Hanus to believe Fisher was conducting counter-surveillance. He
and the other agent also observed Fisher walk by the cold medicine aisle twice
without going down it. After approximately one hour in the store, Fisher left and
headed in the direction of the Wal-Mart store across the street.
While Fisher was walking across the Sam’s Club’s parking lot, he was
stopped by Lieutenant Joseph Garman, also from the drug task force, who had
been contacted by Agent Hanus. When Agent Hanus approached, he heard Fisher
tell Lieutenant Garman that he did not have to tell him his name. Lieutenant
Garman advised Fisher he was a shoplifting suspect and did have to reveal his
name. Fisher then informed them his name was Greg Fisher of Belleville,
Kansas, and denied stealing or attempting to steal anything from the Target store.
During this questioning, the third agent at the scene, Agent Steve Garman,
recalled that Fisher had been seen on a Target store surveillance tape submitted to
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the drug task force a month earlier. 2 Officer Hanus then recalled having advised
one of the other agents to send the tape to Detective Vince Crough with the
Republic County Sheriff’s Department. 3 When Agent Hanus mentioned Detective
Crough, Fisher stated he knew him. Agent Hanus then telephoned Detective
Crough, who informed him Greg Fisher was heavily involved in
methamphetamine and was under investigation by the Republic County Sheriff’s
Department. Detective Crough also advised Agent Hanus that Fisher would either
be driving a blue or yellow Cadillac.
After speaking with Detective Crough, Agent Hanus asked Fisher if he had
any weapons on him and patted him down. Fisher did not have any weapons but
did have car keys in his back pocket. Agent Hanus asked to see the keys; Fisher
provided them to him. The keys were for a General Motors vehicle, which was
consistent with Detective Crough’s information that Fisher would be operating a
Cadillac. When agents resumed questioning regarding the attempted shoplifting,
Fisher requested an attorney. The agents arrested Fisher. A city patrol car
arrived; as the agents were placing Fisher into the vehicle, he stated he wished to
2
Frequently, when Target employees contact the drug task force regarding
customers purchasing cold pills or lithium batteries, the task force is unable to go to the
store. Therefore, the Target store provides the task force with its surveillance tapes. The
task force then provides these tapes to other law enforcement agencies to assist them in
developing cases.
3
Belleville is in Republic County, Kansas.
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cooperate. The agents asked him where his vehicle was located and Fisher stated
it was in the Target parking lot. The agents discovered a blue Cadillac in the
parking lot and observed a plastic sack filled with cold pill medicine boxes lying
on the front passenger-side floorboard. Knowing that cold pills are commonly
used to manufacture methamphetamine, the agents towed the vehicle to the Salina
Police Department and obtained a search warrant for the vehicle. Upon searching
the vehicle, the officers discovered methamphetamine, marijuana, and 4,422 cold
pills containing pseudoephedrine hydrochloride.
Fisher was charged with possession of ephedrine and pseudoephedrine with
the intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(1)
(Count 1) and attempted manufacturing of more than fifty grams of
methamphetamine in violation of 21 U.S.C. § 846 (Count 2). Subsequently, he
filed a motion to suppress the evidence found in his vehicle, which the district
court denied. On January 30, 2003, Fisher entered a conditional guilty plea to
Count 1, reserving the right to appeal the court’s denial of his motion to suppress.
He was sentenced to sixty months imprisonment. This appeal followed.
Standard of Review
“In reviewing the denial of a motion to suppress, we accept the factual
findings of the district court unless they are clearly erroneous.” United States v.
West, 219 F.3d 1171, 1176 (10th Cir. 2000) (citation omitted). “However, we
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review de novo the ultimate determination of the reasonableness of the search
under the Fourth Amendment.” United States v. Bustillos-Munoz, 235 F.3d 505,
511 (10th Cir. 2000) (citation omitted), cert. denied, 534 U.S. 854 (2001).
Discussion
Fisher contends the district court erred in denying his motion to suppress
because (1) the agent making the initial stop did not have sufficient reasonable
suspicion to detain him and (2) his detention lasted longer than necessary to
effectuate the purpose of the stop.
(1) Reasonable Suspicion
Fisher alleges the agents lacked reasonable articulable suspicion to stop
him. He states the basis for his stop after he left the Sam’s Club store was
Dowell’s suspicion that he had attempted to shoplift batteries from the Target
store. He claims, however, that Dowell did not observe him select the batteries
off the shelf or place them behind the food item. Rather, he argues she merely
saw him move his hand “quickly” from the shelf, which any reasonable person
would do if startled by a stranger, and turn his back to her, also a normal reaction
to a stranger’s stares. These actions, Fisher claims, demonstrate a shopper trying
to return property, not steal it. Fisher also argues that his looking over his
shoulder while shopping, which Agent Hanus described as “counter-surveillance,”
is a common reaction when one notices that strange individuals are following
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him. 4
The district court had “no difficulty concluding that the agents had
reasonable suspicion to believe that [Fisher] had attempted to shoplift lithium
batteries at the Target store and that this justified the investigative detention of
[him] in the Sam’s Club parking lot.” (R., Vol. I, Docket Entry 33 at 17-18.) It
based its decision on the following five factors: (1) the decision to take ten
packages of lithium batteries is hardly consistent with impulse shopping; (2)
Fisher’s behavior upon being seen is not what one would expect from a shopper
only changing his mind about a purchase and laying aside the unwanted items; (3)
Fisher’s placement of the batteries behind the food items indicates he either did
not want to be connected to the batteries or he wanted to retrieve them sometime
later; (4) it is unlikely the batteries had been left in the food aisle by another
customer because the Target store management requires its employees to check
each night for misplaced merchandise and the batteries were found a relatively
short time after the Target store opened that morning; and (5) because lithium is
an ingredient in the manufacturing of methamphetamine, Fisher would have a
Fisher also contends Kansas law prohibits an officer from stopping or arresting
4
suspects for misdemeanors unless they have personally observed the conduct or special
and/or exigent circumstances are present. He cites to KAN. STAT. ANN. § 22-2410.
However, even assuming state law is relevant in a federal prosecution, that statute
specifically refers only to when a law enforcement officer may arrest a person—it does
not apply to the stopping of suspects.
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reason for shoplifting such a large number of lithium batteries rather than
lawfully purchasing them and calling attention to himself. In addition to the
above five factors relating to his actions in the Target store, the district court
noted that Fisher went to the Sam’s Club store and engaged in “counter-
surveillance.”
We agree with the district court that the agents had reasonable suspicion to
conduct an investigative detention of Fisher. An officer’s brief investigatory stop
of a person that falls short of a traditional arrest is reasonable under the Fourth
Amendment if the officer has a reasonable suspicion supported by articulable
facts that criminal activity may be afoot. United States v. Sokolow, 490 U.S. 1, 7
(1989) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). The detaining officer must
have a “particularized and objective basis” for suspecting wrongdoing; an
inchoate suspicion or “hunch” is insufficient. United States v. Arvizu, 534 U.S.
266, 273-74 (2002); United States v. Soto-Cervantes, 138 F.3d 1319, 1322 (10th
Cir.) (quotations omitted), cert. denied, 525 U.S. 853 (1998). In determining
whether an officer had reasonable suspicion to stop an individual, a court must
look at the totality of the circumstances. Arvizu, 534 U.S. at 273. “This process
allows officers to draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to
them that might elude an untrained person.” Id. (quotations omitted).
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Here, the totality of the circumstances demonstrates the agents had
reasonable suspicion to stop Fisher for attempting to shoplift lithium batteries
which, based on their experience, are used to manufacture methamphetamine. It
was reasonable for them to infer from Fisher’s behavior in the Target store (his
concealing of an item in the electronics department and the subsequent finding of
several packets of lithium batteries on a shelf in the snack aisle where he was
seen attempting to hide something) and their “counter-surveillance” in the Sam’s
Club store, that Fisher was attempting to shoplift lithium batteries for the
manufacturing of methamphetamine.
On appeal, Fisher argues that two of the six factors recognized by the
district court as establishing reasonable suspicion are susceptible to an innocent
explanation. This argument, however, constitutes the “divide-and-conquer”
approach to the totality of the circumstances test specifically rejected in Arvizu.
Id. at 274. There, the Supreme Court stated:
A determination that reasonable suspicion exists, however, need not rule
out the possibility of innocent conduct . . . . Undoubtedly, each of [the]
factors alone is susceptible of [an] innocent explanation, and some factors
are more probative than others. Taken together, [however,] we believe they
sufficed to form a particularized and objective basis for [the officer]
stopping the vehicle . . . .
Id. at 277-78.
The same is true here. Admittedly, if taken in isolation, some of the factors
relied upon by the district court, which we adopt on appeal, have innocent
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explanations. However, considered collectively, which is the proper analysis,
they sufficiently provided the agents with the requisite reasonable suspicion.
(2) Length of Detention
Fisher argues that even if the agents were justified in stopping him, the
duration of the stop exceeded that which was necessary to effectuate the purpose
of the stop. Specifically, he contends the purpose of the stop was effectuated
when he identified himself and denied attempting to shoplift the batteries.
Therefore, he alleges he should have been allowed to leave at that time and any
further detention of him was unlawful.
The district court rejected this argument. It noted that during their
questioning of Fisher regarding the attempted shoplifting, the agents recognized
him as someone observed on a Target store surveillance tape purchasing
pseudoephedrine tablets. Knowing the tape had been sent to Detective Crough,
the agents telephoned him and learned Fisher was the subject of an on-going
investigation and believed to be heavily involved in methamphetamine.
Following a brief pat-down search for weapons and a few more questions
concerning the attempted shoplifting, the agents arrested Fisher. The district
court concluded “[t]he length and scope of this detention was reasonably related
to the purpose of the stop, that was, the investigation of an attempted shoplifting
incident involving items used in the manufacture of methamphetamine.” (R., Vol
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I., Docket Entry #33 at 20.)
We agree with the district court’s reasoning. “[A]n investigative detention
must be temporary and last no longer than is necessary to effectuate the purpose
of the stop." Florida v. Royer, 460 U.S. 491, 500 (1983). “It is the
[government’s] burden to demonstrate that the seizure it seeks to justify on the
basis of a reasonable suspicion was sufficiently limited in scope and duration to
satisfy the conditions of an investigative seizure.” Id. The purpose of the stop in
this case was not to investigate an attempted shoplifting but rather, to investigate
an attempted shoplifting of lithium batteries—items used to manufacture
methamphetamine. As the district court concluded, the duration of the stop, from
Fisher’s initial detention to his arrest, lasted no longer than necessary to
effectuate this purpose. 5
Fisher maintains that because the information pertaining to the Target store
surveillance tape and his involvement with methamphetamine was not obtained
until after the initial stop, it could not be used to justify his continued detention.
This argument is erroneous. In Soto-Cervantes, 138 F.3d at 1322, we stated:
Once the concern that justified the initial stop is dispelled, further detention
will violate the Fourth Amendment unless the additional detention is
supported by a reasonable suspicion of criminal activity. In other words,
reasonable suspicion must exist at all stages of the detention, although it
5
Fisher does not challenge the district court’s conclusion that the agents had
probable cause to arrest him.
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need not be based on the same facts throughout.
Accordingly, it is immaterial that some of the information supporting Fisher’s
continued detention was not learned until after the initial stop.
Conclusion
The district court’s denial of Fisher’s motion to suppress is AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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