FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN BURRELL, No. 02-15114
Plaintiff-Appellant, D.C. No.
v.
CV-99-01612-KJD
MIKE MCILROY; GLEN C. RECTOR; ORDER AND
JEFF THORPE, AMENDED
Defendants-Appellees.
OPINION
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted
September 13, 2004—San Francisco, California
Filed September 19, 2005
Amended September 20, 2006
Before: James L. Oakes,* Andrew J. Kleinfeld, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan;
Dissent by Judge Oakes
*The Honorable James L. Oakes, Senior United States Circuit Judge for
the Second Circuit, sitting by designation.
11611
BURRELL v. MCILROY 11615
COUNSEL
Plaintiff-appellant was represented by Steven A. Engel and
Susan Kearns of Kirkland & Ellis LLP of Washington, D.C.
Defendants-appellees were represented by Peter Angulo of
Las Vegas, Nevada, at oral argument, and by Thomas D. Dil-
liard, Jr., and Lilli C. Hitt of Rawlings, Olson, Cannon, Gorm-
ley & Desruisseaux of Las Vegas, Nevada, on the briefs.
ORDER
The opinion and dissent filed on September 19, 2005, and
published at 423 F.3d 1121 (9th Cir. 2005) are hereby
amended. An amended opinion and dissent are to be filed
concurrently with this order.
With the filing of the amended opinion and dissent, Judges
Kleinfeld and Callahan have voted to deny the petition for
rehearing and suggestion for rehearing en banc. Judge Oakes
voted to grant the petition for rehearing.
The full court has been advised of the suggestion for
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing is DENIED and the suggestion
for rehearing en banc is DENIED. No subsequent petitions for
rehearing or petitions for rehearing en banc may be filed.
OPINION
CALLAHAN, Circuit Judge:
Stephen Burrell (Burrell) appeals the district court’s grant
of summary judgment on behalf of various detectives of the
11616 BURRELL v. MCILROY
Las Vegas Metropolitan Police Department in this 42 U.S.C.
§ 1983 action. This court reviews the grant of summary judg-
ment de novo, and may affirm on any basis supported by the
record. Johnson v. County of Los Angeles, 340 F.3d 787, 791
(9th Cir. 2003); Hell’s Angels Motorcycle Corporation v.
McKinley, 360 F.3d 930, 931 n.1 (9th Cir. 2004).We have
jurisdiction under 28 U.S.C. § 1331, and we affirm.
I
Burrell, a felon with a lengthy history of arrests, was sus-
pected by the Las Vegas Metropolitan Police Department of
possessing illegal weapons and drugs. On February 4, 1999,
Detective McIlroy applied for a search warrant to search Bur-
rell’s apartment on 1750 Karen Avenue. In the affidavit in
support of the search warrant, Detective McIlroy stated that
he had obtained current and past information from reliable
informants that led him to believe that Burrell was trafficking
in drugs and possessed firearms.
Detective McIlroy indicated that, in December of 1998, he
was contacted by a reliable informant, who told him that
“Burrell often travels to California and purchases cocaine
which he in returns [sic] brings back to Las Vegas for resale.”
On December 19, 1998, police arrested Burrell after he shot
his then-girlfriend in the leg during a domestic dispute. Bur-
rell admitted to officers to possessing a gun and shooting his
girlfriend. Detectives recovered two handguns and more than
four grams of cocaine during this incident. Burrell was ulti-
mately charged with trafficking cocaine, battery with a deadly
weapon, and two counts of being an ex-felon in possession of
a firearm.
On February 3, 1999, the day before Detective McIlroy
applied for the search warrant, he was again contacted by two
informants. The informants told Detective McIlroy that “Bur-
rell was currently in California picking up an unknown [quan-
tity] of cocaine and was to bring it back with him to Las
BURRELL v. MCILROY 11617
Vegas.” One of these informants also told Detective McIlroy
that Burrell was coming back to Las Vegas “at any time with
the cocaine.”
On February 4, 1999, a third informant told Detective
McIlroy that Burrell was back in Las Vegas, that he had been
inside Burrell’s apartment, and had observed Burrell cooking
approximately one ounce of rock cocaine over the stove. The
informant told Detective McIlroy that Burrell possessed a
handgun, which he kept in his bedroom. The informant also
identified Burrell’s car by its license plates and stated that it
was parked outside his apartment at 1750 Karen Avenue.
Detective McIlroy sent Detective Rector to provide surveil-
lance of Burrell’s 1750 Karen Avenue apartment. Detective
Rector confirmed that a car matching those plates was indeed
parked outside of that apartment and communicated this to
Detective McIlroy, who then sought to obtain the search war-
rant.
Before the warrant had issued, Detective Rector continued
to provide surveillance of Burrell’s 1750 Karen Avenue apart-
ment. At some point, Burrell left his apartment at 1750 Karen
Avenue and drove to his other apartment at 1500 Karen Ave-
nue. Detective Rector followed Burrell to the second apart-
ment, where he claims that he then stopped and detained
Burrell after Burrell attempted to exit the vehicle and enter the
apartment.
Burrell, however, alleges that Detective Rector followed
him to the second apartment, stopped Burrell in his car, and
forcibly removed him from the car at gunpoint. Burrell asserts
that Detective Rector handcuffed him, read him his Miranda
rights, and later informed him he was under arrest for suspi-
cion of being under the influence of a controlled substance.
It is undisputed that thereafter the police transported Burrell
back to his 1750 Karen Avenue apartment, where Burrell
refused to allow officers to search that apartment, but he
11618 BURRELL v. MCILROY
agreed to allow them to wait inside the entrance until they
obtained the warrant. After the officers were notified by phone1
that a search warrant had issued, they searched the apartment.
During the search, Detective Rector and another police officer
returned to the 1500 Karen Avenue apartment. Courtney
Johnson, who shared the 1500 Karen Avenue apartment with
Burrell, provided the officers with oral and written consent for
the officers to search the 1500 Karen Avenue apartment.
The search at the 1750 Karen Avenue residence yielded a
.38 caliber revolver and a shotgun, as well as 2.73 grams of
cocaine. The search at the 1500 Karen Avenue apartment led
to the recovery of two scales commonly used to weigh narcot-
ics for sale, a Mosberg 12 gauge shotgun, a yellow bag filled
with shotgun shells, and two boxes of .38 caliber bullets,
which were similar to the bullets used in the gun recovered at
the 1750 Karen Avenue apartment. Burrell was charged with
two counts of being a felon in possession of a firearm and for
possession of cocaine with intent to distribute. Burrell was
indicted by a federal grand jury of being a convicted felon in
possession of a firearm on May 13, 1999.
On December 8, 1999, Burrell sued the detectives under 42
U.S.C. § 1983 for violating his Fourth Amendment rights.
The district court granted the officers’ motion for summary
judgment, finding that the officers had probable cause and did
not use excessive force in arresting Burrell, and that the
searches of his two apartments were reasonable under the
Fourth Amendment. Burrell timely appealed to this court.
II
Burrell first argues that the district court erred in granting
Detective Rector’s motion for summary judgment. He con-
tends that Detective Rector used excessive force and falsely
1
Burrell contends that he had to wait two or three hours from the time
that he was allegedly arrested to the time that the search was completed.
BURRELL v. MCILROY 11619
arrested him outside the 1500 Karen Avenue apartment. In its
briefs, the government disputed whether the encounter was an
arrest, but conceded at oral argument that, if the encounter
was an arrest, Detective Rector lacked probable cause to
arrest Burrell.
[1] Assessing the evidence in a manner most favorable to
Burrell, see Behrens v. Pelletier, 516 U.S. 299, 309 (1996),
this encounter was an arrest. Burrell was removed from his
car at gunpoint, handcuffed, Mirandized, and told that he was
under arrest. Under our case law, this confluence of circum-
stances leads us to conclude that he in fact was under arrest.
See Rhode v. City of Roseburg, 137 F.3d 1142, 1144 (9th Cir.
1998) (holding restraint of suspects “necessarily crossed the
line from investigatory stop to arrest because both were told
that they were under arrest”); Allen v. City of Portland, 73
F.3d 232, 236 (9th Cir. 1995) (holding that a police officer’s
statement to a suspect that she was “under arrest” helped to
create sense of restraint necessary to effect an arrest); United
States v. Del Vizo, 918 F.2d 821, 824 (9th Cir. 1990) (holding
the combination of the police’s order to exit vehicle, hand-
cuffing, and brandishing of weapons created an arrest);
United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1295
(9th Cir. 1988) (holding an arrest occurred based on detention
at gunpoint by police officers who stated they were making an
arrest and gave Miranda rights). Given the government’s con-
cession that it lacked probable cause, the arrest was unconsti-
tutional. Nonetheless, we hold that a reasonable officer in
Detective Rector’s position would have believed that he had
probable cause to arrest Burrell and to use force in doing so.
[2] The particularized facts known by the officers at the
time of the encounter amply show that a reasonable officer in
Detective Rector’s position could have believed that he was
authorized to use force to take Burrell into custody. See Reyn-
olds v. San Diego County, 84 F.3d 1162, 1170 (9th Cir. 1996)
(“The inquiry is not whether another reasonable or more rea-
sonable interpretation of events can be constructed . . . after
11620 BURRELL v. MCILROY
the fact. . . . Rather, the issue is whether a reasonable officer
could have believed that his conduct was justified.”) (internal
quotations and citations omitted), overruled on other grounds
by Acri v. Varian Assocs., Inc., 114 .3d 999 (9th Cir. 1997)
(en banc).2
[3] At the time of the encounter, the officers were aware
that Burrell was a felon who had recently confessed to shoot-
ing his former girlfriend, and that it was highly likely that he
continued to deal drugs and possess firearms.3 Several infor-
mants had recently stated that Burrell had just returned from
purchasing cocaine in California. Indeed, one of these infor-
mants had reported that he had seen Burrell cooking crack on
the stove that very day (when the informant contacted the
detective), and that Burrell still kept a gun in the bedroom of
his apartment.
[4] There was no reason to think that the gun in the bed-
room was the only firearm that Burrell possessed, or that he
did not carry it, or other weapons, when he was outside the
apartment. When a drug dealer has shot someone and contin-
ues to commit the crime of possessing a firearm, the police
may be permitted to act on the assumption that he may be
armed and dangerous. See United States v. Post, 607 F.2d
847, 851 (9th Cir. 1979) (“It is not unreasonable to suspect
2
Because the detectives were working in close concert, a court may con-
sider the collective knowledge of these detectives in considering their
beliefs concerning probable cause or reasonable suspicion. See United
States v. Bernard, 623 F.2d 551, 561 (9th Cir. 1979) (reasoning that “the
officers involved were working in close concert with each other and the
knowledge of one of them was the knowledge of all”) (internal citation
omitted); see also United States v. Del Vizo, 918 F.2d 821, 826 (9th Cir.
1990).
3
Although a prior criminal history cannot alone establish reasonable
suspicion or probable cause to support a detention or an arrest, it is per-
missible to consider such a fact as part of the total calculus of information
in these determinations. See Brinegar v. United States, 338 U.S. 160, 177
(1949).
BURRELL v. MCILROY 11621
that a dealer in narcotics might be armed.”); see also Cun-
ningham v. Gates, 229 F.3d 1271, 1290 (9th Cir. 2000) (“A
police officer’s right to make an arrest necessarily includes
the right to use some degree of force.”).
[5] Thus, under the totality of the circumstances, a reason-
able officer in Detective Rector’s position could have
believed there was probable cause to arrest Burrell and to use
force in doing so. We, therefore, affirm the district court’s
grant of summary judgment on this issue. See McCray v. State
of Illinois, 386 U.S. 300, 304 (1967); see also Draper v.
United States, 358 U.S. 307 (1959).
Burrell next argues that the district court erred in granting
summary judgment to the other detectives as to the search of
the 1750 Karen Avenue apartment. He contends that Fed. R.
Crim. P. 41(d) requires federal officers, absent exigent cir-
cumstances, to deliver a warrant at the outset of a search. See
United States v. Gantt, 194 F.3d 987, 1004 (9th Cir. 1999);
Ramirez v. Butte-Silver Bow, 298 F.3d 1022, 1027 (9th Cir.
2002), affirmed Groh v. Ramirez, 540 U.S. 551 (2004). Bur-
rell contends that the officers violated his Fourth Amendment
rights when they commenced the search after receiving tele-
phonic confirmation, but prior to the physical delivery, of the
warrant.
The parties dispute whether Rule 41 applies to the search
conducted by detectives of the Las Vegas Metropolitan Police
Department because the search was “federal in character.”
United States v. Palmer, 3 F.3d 300, 303 (9th Cir. 1993). Our
review of the record fails to reveal that federal officers were
so involved in the investigation and search so as to render it
“federal in character.” Moreover, even if Rule 41 were appli-
cable to the search, at the time of the search the failure to
serve a warrant at the outset of a search was not a clearly
established violation of the constitution. See United States v.
Woodring, 444 F.2d 749 (9th Cir. 1971); Katz v. United
States, 389 U.S. 347, 356 n. 16 (1967); Nordelli v. United
11622 BURRELL v. MCILROY
States, 24 F.2d 665 (9th Cir. 1928). Our decision in Gantt,
194 F.3d 987, on which Burrell relies, was not decided until
six months after the search in this case. Accordingly, Burrell
has not shown that the failure to deliver a warrant at the outset
of the search was a constitutional violation. See Saucier, 533
U.S. at 201.
Finally, Burrell contends that the officers illegally searched
his 1500 Karen Avenue property because the officers coerced
Johnson into giving her consent to the search. Johnson stated
in a May 9, 2001, affidavit that she consented only after offi-
cers informed her that a search warrant for the 1500 Karen
Avenue apartment was on the way, and that she could get into
trouble if they later found contraband on the premises.
[6] Burrell argues that United States v. Bumper, 391 U.S.
543, 548 (1968), is controlling. In Bumper, law enforcement
officials gained entrance to a residence by falsely asserting
they had a warrant to search, and the court found no consent.
Bumper, however, states that consent is invalid where it is
only given as a submission to legal authority. Here, by con-
trast, there is no indication that Rector made any indication
that he had immediate authority to search the apartment with-
out first obtaining Johnson’s consent.
[7] Although the record suggests that Johnson may have
misunderstood Detective Rector’s statement that the detec-
tives were awaiting a search warrant for the 1750 Karen Ave-
nue apartment as referring to the 1500 Karen Avenue
apartment, there is nothing in the record that indicates that
Detective Rector was aware of Johnson’s misinterpretation.4
4
In her April 6, 1999 grand jury testimony, Johnson testified:
[D]etectives knocked on the door and asked me . . . if they could
come in and talk to me and possibly search the house for any type
of weapons or narcotics or a safe. And then I was, like, sure. . . .
They said they had just left [the 1750 Karen Avenue apartment]
but were waiting for a search warrant and, you know, if I didn’t
have a problem with them coming in and searching and I told
them I didn’t have a problem with them coming in because there
shouldn’t have been something in the house.
BURRELL v. MCILROY 11623
Thus, a reasonable officer in his position would not have been
on notice that Johnson’s consent was in any way involuntary.
[8] Furthermore, the fact that an officer states that a search
warrant is on the way is but one factor to consider amidst the
totality of the circumstances. See United States v. Castillo,
866 F.2d 1071, 1082 (9th Cir. 1988). Here, the police made
no threat of violence or false charges against Johnson, and she
twice consented — both orally and in writing — to the search
of the apartment. The fact that Johnson may have consented
to avoid casting suspicion on herself if contraband was found
on the premises does not vitiate her consent. See United States
v. Agosto, 502 F.2d 612, 614 (9th Cir. 1974); see also United
States v. Culp, 472 F.2d 459, 462 n.1 (8th Cir. 1973) (“Many
cases imply that where law enforcement officers indicate only
that they will attempt to obtain or are getting a warrant that
such a statement cannot serve to vitiate an otherwise consen-
sual search.”) (emphasis added).
[9] Thus, on the facts of this case, the district court did not
err in finding that the detectives were entitled to qualified
immunity on this issue.
III
Accordingly, the district court’s grant of summary judg-
ment on behalf of the detectives is AFFIRMED.
OAKES, Circuit Judge, dissenting:
I respectfully dissent from the majority’s holding that “a
reasonable officer in Detective Rector’s position would have
believed that he had probable cause to arrest Burrell and to
use force in doing so.” Majority Op. at 11619. My dissent is
based on the following reasoning.
11624 BURRELL v. MCILROY
Not one of the defendants’ submissions forming the record
on this appeal contains a sworn statement or assertion by
defendants that they had specific information, as the cases
require, that Burrell was personally armed when he was
approached by Detective Rector. Defendants assert, in lieu of
the argument based upon Michigan v. Summers advanced in
the district court, that the facts supporting their yet-
unapproved application for the search warrant, alone and
without the need for any other suspicion-engendering event,
provided legal justification for the arrest tactics used in seiz-
ing Burrell. The record, however, is devoid of any particular-
ized facts or objective bases justifying the type of seizure
effected here.1
Furthermore, while defendants’ counsel contended at oral
argument that the officers believed Burrell to be armed, coun-
sel’s argument does not constitute record evidence of the spe-
cific “information” which the cases cited in Washington v.
Lambert require. Likewise, it is inappropriate for an appellate
court to assume or infer purported beliefs not actually articu-
lated in the record, particularly where defendants have been
represented by counsel from the beginning of this litigation
and have had the opportunity to introduce evidentiary material
supporting their motions for summary judgment below.2
1
The affidavit in support of the warrant states only that an informant
reported that Burrell had a handgun “which he keeps in the bedroom.”
This is hardly information that would warrant a full-scale, forceful arrest.
2
While Burrell has been very ably represented on this appeal by
appointed counsel from the law firm Kirkland & Ellis LLP, it should be
noted that Burrell was proceeding as an incarcerated pro se litigant at the
time the district court entertained the parties’ cross-motions for summary
judgment. The record in this case does not contain any form of the
required notice to incarcerated pro se litigants regarding the requirements
and consequences of a summary judgment motion, whether given by the
district court or by defendants. In Klingele v. Eikenberry, 849 F.2d 409
(9th Cir. 1988), the 9th Circuit held that a failure to give adequate notice
to an incarcerated pro se litigant was reversible error affecting the pro se
litigant’s substantial rights, without engaging in a harmless error analysis.
See also Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) (re-
affirming Klingele, but holding that the notice, which had theretofore been
required to issue from the district court, may be issued by the summary
judgment movant).
BURRELL v. MCILROY 11625
Nevertheless, the majority holds that Detective Rector had
arguable justification for the seizure and is, therefore, entitled
to qualified immunity. Since it is clear from the record that
Burrell was arrested without probable cause, Detective Rector
can only be entitled to qualified immunity if a reasonable offi-
cer in his position would have an arguable basis to believe
probable cause existed to arrest Burrell. The defendants have
not identified any specific facts in the record which could
form the basis for an objectively reasonable belief that proba-
ble cause existed for an arrest. Moreover, on appeal, the
defendants have limited their argument to the vague claim
that there was “at least a colorable basis for Detective Rector
to believe there was probable cause for an arrest prior to the
execution of the search warrant” because he “constitutionally
relied upon facts yielded from Detective McIlroy’s investiga-
tion and his own observations during the surveillance to reach
this conclusion.” Def. Br. at 23. However, there is nothing in
Detective McIlroy’s arrest report, or in any of the documents
forming the record on this appeal, that indicates that the offi-
cers had particularized information that Burrell was person-
ally armed at the time of the arrest by Detective Rector and
prior to the search. In short, the record on this motion for
summary judgment merely shows that, at most, the detectives
suspected that the search of Burrell’s apartment might reveal
incriminating evidence. This alone is insufficient to establish
either actual, or an arguably and objectively reasonable belief
in, probable cause to arrest Burrell prior to the execution of
the search.
Therefore, I would reverse the district court’s grant of sum-
mary judgment for Detective Rector and would remand for
further proceedings on Burrell’s claim based upon his uncon-
stitutional seizure. At minimum, the fact that the record is
devoid of any sworn statements or any factual submissions by
the defendants that could support a finding of qualified immu-
nity warrants remand for expansion of the record and for con-
sideration by the district court of qualified immunity in the
first instance.