United States Court of Appeals
For the Eighth Circuit
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No. 19-3735
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Terrance S. Harvey
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 15, 2021
Filed: June 11, 2021
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Before LOKEN, GRASZ, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
After entering a conditional plea of guilty to a felon-in-possession violation of
18 U.S.C. § 922(g), Terrance Harvey appeals the denial of his motion to suppress.
See Fed. R. Crim. P. 11(a)(2). The issues turn on whether police had reasonable
suspicion to stop Harvey and his companion and to conduct a protective pat down
search for weapons. “We review determinations of reasonable suspicion de novo,
taking care both to review findings of historical fact only for clear error and to give
due weight to inferences drawn from those facts by . . . local law enforcement
officers.” United States v. Davison, 808 F.3d 325, 329 (8th Cir. 2015), quoting
Ornelas v. United States, 517 U.S. 690, 699 (1996). We affirm.
I.
We recite the facts as found by the district court1 after a suppression hearing
at which the only witness was Gordon Abraham, Chief of Police of Pleasant Valley,
Missouri, a town northeast of Kansas City. On September 4, 2018, Kyle Gabauer and
Tiffani Miller were at the home of Sharon McKinzie at 6308 Ravenna Road. After
they left, McKinzie had difficulty finding her car keys. When she found the keys and
looked in the vehicle, McKinzie discovered two handguns were missing. Gabauer
and Miller returned to the residence on September 5, and a physical altercation
ensued. McKinzie called the police. When they arrived, Gabauer and Miller were
gone. McKinzie told police she believed Gabauer had stolen two handguns that she
described. Police officers including Chief Abraham searched the area but did not find
Gabauer or Miller. Gabauer was arrested on September 6 and booked for an
unrelated attempted burglary at a location between the McKinzie residence and a
nearby Phillips 66 gas station that was out of business.
McKinzie again called police on September 7 and told responding officers that
Gabauer and a Hispanic male wearing dark clothing had come to her house and left
on foot. She called the police because she did not want them there. She believed
Gabauer had been given a no-trespass warning, but the police learned no trespass
warning had been given. Monitoring this call, Chief Abraham issued a radio alert for
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri, adopting the Report and Recommendation of the Honorable
Lajuana M. Counts, United States Magistrate Judge for the Western District of
Missouri.
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an area check, reporting a disturbance at the McKinizie home, a previous disturbance
there that involved stolen firearms, and the subjects were possibly armed.
Chief Abraham responded to the area and began searching for the two men.
Five minutes after the 911 call, Police Officer Brooks radioed that he observed two
men wearing dark clothing walking across the lot of the Phillips 66 gas station, less
than two blocks from the McKinzie residence. Chief Abraham was nearby, saw the
two men, and pulled into the gas station parking lot. He testified that he exited his
vehicle, identified himself, advised the men to show their hands, and said he was
going to pat them down. He believed they were possibly armed because one of the
men was Gabauer who was allegedly involved in the recent theft of two firearms from
the McKinzie residence. Abraham had a general description of Gabauer but did not
know what he looked like; the two men were similar in race, age, size, and clothing.
Before conducting a pat down, Chief Abraham asked the men if they were
armed. One -- later identified as Harvey -- said he had a gun in his front pocket.
Chief Abraham retrieved the firearm, a Taurus, Model 85, .38 caliber revolver that
Harvey was later charged with unlawfully possessing. Officer Brooks contacted the
McKenzie residence. One resident came to the parking lot with paperwork
confirming that the Taurus revolver was one of the stolen firearms. A third officer
frisked the second man, -- later identified as Gabauer -- finding a pellet gun that
resembled a handgun. After dispatch advised Chief Abraham that Harvey had
outstanding warrants and that both men were felons, Harvey and Gabauer were
arrested for theft and unlawful possession.
Harvey was indicted for unlawful possession of the Taurus firearm in violation
of 18 U.S.C. § 922(g). He filed a motion to suppress the firearm and statements he
made to police about the firearm, alleging police lacked reasonable suspicion for a
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Terry2 stop and frisk. Asked on direct and cross exam at the hearing why he stopped
the two men and said he would pat them down, Chief Abraham explained that he
believed one of the two men was Gabauer; that he wanted to serve a no trespassing
notice on Gabauer because he had been involved in a prior disturbance at the
McKinzie residence and the residents did not want him there; and that Gabauer was
a suspect in the recent theft of firearms at the residence.
The Magistrate Judge issued a Report and Recommendation that the motion to
suppress be denied. Regarding the investigative Terry stop, the court “finds that
Chief Abraham had a reasonable, articulable suspicion that criminal activity may be
afoot given the allegations that Gabauer was involved in the theft of two firearms
from 6308 Ravena on September 4, an altercation with the residents of 6308 Ravena
on September 5, an arrest for attempted first-degree burglary at a nearby location of
September 6, and an unwelcome return to 6308 Ravena on September 7, which
resulted in another 911 call.” Regarding the frisk, the court found that Chief
Abraham “had a credible concern for officer safety” because this series of events gave
the officers “reason to believe that one or both of the subjects might be armed and
dangerous.” The district court adopted the Report and Recommendation and denied
the motion suppress. Harvey then entered a conditional guilty plea. The district court
sentenced him to 63 months imprisonment.
II.
On appeal, Harvey argues the district court erred in denying his motion to
suppress because the police “had no objective basis to believe he was engaged in
criminal activity or was armed and dangerous.” “A police officer may briefly stop an
individual to make reasonable inquiries when the officer has reasonable suspicion that
criminal activity may be afoot.” Davison, 808 F.3d at 329, citing Terry, 392 U.S. at
2
Terry v. Ohio, 392 U.S. 1 (1968).
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30. “The officer may make a protective pat-down search if he has a reasonable,
articulable suspicion that the person may be armed and presently dangerous.” Id.,
citing Terry, 392 U.S. at 30.
A.The Stop. As the district court recognized, a Terry stop is justified only
when the officer points to “specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion.” Id., citing
Terry, 392 U.S. at 21. “A reviewing court must look at the totality of the
circumstances, allowing 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 well elude an untrained person.” Id., citing United States
v. Arvizu, 532 U.S. 266, 273 (2002).
Harvey argues the police had no reasonable suspicion because (i) no crime
occurred while he and Gabauer were at the McKinizie residence on September 7; (ii)
even if he and Gabauer were trespassing at the McKinzie residence, a completed
trespass cannot give rise to reasonable suspicion, citing United States v. Hughes, 517
F.3d 1013 (8th Cir. 2008); (iii) any suspicion that Gabauer was involved in stealing
firearms on September 4 dissipated when he was arrested for an unrelated attempted-
burglary and released on September 6; and (iv) even if police had reasonable
suspicion to stop Gabauer, they did not have reasonable suspicion to stop Harvey.
These arguments disregard the governing Fourth Amendment standard:
The fatal flaw in [Harvey’s] approach is that he challenges the
sufficiency of each [reasonable suspicion] factor in isolation from the
rest. The totality-of-the-circumstances test ‘precludes this sort of divide
and conquer analysis.’ An officer may have reasonable suspicion to
conduct a Terry stop based on a combination of factors even where no
single factor, considered alone, would justify a stop.
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United States v. Quinn, 812 F.3d 694, 698 (8th Cir. 2016) (quotations and citations
omitted). Here, Chief Abraham explained he had several reasons to stop Gabauer:
(1) Gabauer had been involved in a prior physical altercation at the McKinzie
residence, (2) Gabauer was suspected of recently stealing firearms at that residence,
and (3) Abraham wanted to give Gabauer a no trespass warning that he was not
wanted at that residence.
Turning to Harvey’s specific arguments, the fact that Chief Abraham had no
reason to suspect that Harvey and Gabauer committed a crime at the McKinizie
residence on September 7 is of little if any relevance. It is well settled “that, if police
have a reasonable suspicion, grounded in specific and articulable facts, that a person
they encounter was involved in or is wanted in connection with a completed felony,
then a Terry stop may be made to investigate that suspicion.” United States v.
Hensley, 469 U.S. 221, 229 (1985). Abraham had reason to suspect Gabauer
committed a felony on September 4, stealing two firearms at that residence. The fact
that Gabauer was booked and released on September 6 for another felony, attempted
burglary at a nearby location, did not “dissipate” Abraham’s reasonable suspicion to
stop Gabauer for brief investigative inquiry; two felonies in three days provided
increased reason to investigate a common suspect. Harvey cites no authority for the
proposition that an arrest for an unrelated crime dissipates suspicion about that
individual’s involvement in a prior crime in the same vicinity.
Harvey’s focus on the trespass aspect of this incident is likewise out of focus.
In Hughes, we concluded that an “an anonymous complaint” about “suspicious parties
on the property,” standing alone, did not justify stopping and frisking three
individuals at a public bus stop. 517 F.3d at 1015, 1017-1019. But Chief Abraham
did not stop Gabauer for having completed a trespassing crime. He stopped Gabauer
to serve a trespass warning on a person who had just made a third unwelcome visit
to a residence in four days, resulting in a reported theft, a physical altercation the next
day, two prior 911 calls to the police, and the residents stating they did not want him
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there. Under Missouri law, first degree trespass requires proof of prior notice, see
Mo. Rev. Stat. § 569.140, and an officer’s oral warning, if ignored, can establish
probable cause for a later arrest. See State v. Hogue, 501 S.W.3d 53, 56-57 (Mo.
App. 2016); cf. United States v. Hawkins, 830 F.3d 742, 746 (8th Cir. 2016). Thus,
Chief Abraham’s reasonable basis to serve Gabauer a trespass notice added to the
totality of circumstances making the Terry stop reasonable. Hughes is not to the
contrary. See 517 F.3d at 1018.
Harvey’s contention that Chief Abraham had no suspicion to stop him even if
the stop of Gabauer was warranted is without merit. “The simultaneous stopping of
multiple suspects for a one-person crime may sometimes be justified by the virtual
certainty that the perpetrator is a member of that group and that means of singling him
out will soon be available.” United States v. Sykes, 914 F.3d 615, 618 (8th Cir.)
(quotations omitted), cert. denied, 140 S. Ct. 136 (2019).
B. The Frisk. Harvey argues that Chief Abraham had no reasonable suspicion
that Harvey was armed and dangerous. Like the district court, we disagree. “In the
case of the self-protective search for weapons, an officer must be able to point to
particular facts from which he reasonably inferred that the individual was armed and
dangerous.” Davison, 808 F.3d at 330. Here, as previously discussed, police
suspected Gabauer had stolen two firearms from the McKinzie residence three days
prior to the Terry stop. Abraham also knew that Gabauer was involved in a physical
altercation when he returned to that residence the next day, was suspected of an
attempted-burglary at a near-by residence the following day, and made an unwelcome
return to the same residence that prompted the stop. In reviewing the totality of these
circumstances, we must allow Abraham, an officer with forty years experience, to
draw on this experience and training to make inferences from and deductions about
whether there was reasonable suspicion that one or both of these suspects may be
armed and dangerous.
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Moreover, Chief Abraham did not simply conduct a physical frisk or pat down
search. He first asked Harvey and Gabauer if they were armed. Harvey admitted he
was, and Abraham, without a frisk or pat down, retrieved the firearm Harvey was
subsequently charged with unlawfully possessing. In the district court, Harvey also
challenged the subsequent frisk of both men and their arrest after police ascertained
that Harvey had outstanding warrants and both men were felons. But the district
court’s rejection of these challenges is not at issue on appeal.
For the foregoing reasons, the district court properly denied Harvey’s motion
to suppress. Accordingly, the judgment of the district court is affirmed.
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