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United States v. Polite

United States Court of Appeals, Eighth Circuit

December 6, 2018

United States of America Plaintiff-Appellee
v.
Darnell Polite Defendant-Appellant

          Submitted: October 24, 2018

          Appeal from United States District Court for the District of Nebraska - Omaha

          Before ERICKSON, BEAM, and GRASZ, Circuit Judges.

          ERICKSON, Circuit Judge.

         Darnell Polite pled guilty in district court[1] to being an unlawful user of a controlled substance in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3). As a condition of his guilty plea, Polite reserved the right to argue on appeal that law enforcement officers violated his Fourth Amendment rights by performing a Terry stop without reasonable suspicion and arresting him without probable cause, and that all evidence obtained and statements made by Polite following his detention should be suppressed. We find law enforcement officers had reasonable suspicion to conduct a Terry stop and Polite's arrest was supported by probable cause. We affirm.

         I. Background

         At 10:30 p.m. on Halloween in 2016, while on routine patrol, two City of Omaha Police Department gang-unit officers saw a group of approximately 20 individuals standing in a parking lot and the adjacent sidewalk next to an apartment building. Officers were aware of the increasing presence of Crips gang members, including the 40th Ave., Hilltop, and 44th Ave. Crips, in this area. The apartment manager had requested increased police presence because of crime and gang activity occurring around the apartment complex. This area had been the location of narcotics and firearms investigations as well as homicides.

         Upon seeing this group of people loitering about, City of Omaha police officers Mike Sundermeier ("Officer Sundermeier") and David Preston, Jr. ("Officer Preston") stopped the unmarked Dodge Magnum that they were driving while on patrol. They recognized some of those present as 40th Ave. and 44th Ave. Crips gang members. The officers were dressed in jeans and tactical vests marked with "Police" on both sides. The Dodge's red and blue lights were activated, at which point the group began to head in different directions, some fleeing and some stopping to talk to Officer Preston.

         Officer Sundermeier, from a distance of about 30 feet away, saw Polite kneel down for approximately one second behind a parked blue Chevrolet Impala. As Polite knelt behind the Impala, Officer Sundermeier testified that he heard an object hit the ground, which he described as a "metallic thump . . . metal-on-metal." Almost immediately after hearing the first sound, Officer Sundermeier testified that he heard another object hit the ground a short distance away from where four other group members were standing. He estimated that distance as about 40 feet away and described the second sound as metal or something heavy hitting the ground.

         Officer Sundermeier detained Polite, believing he had just discarded a firearm. He handcuffed Polite and confiscated a cell phone that had been in Polite's possession. Officer Sundermeier then moved to the front of the Impala where Officer Sundermeier had seen Polite kneeling. Officer Sundermeier found a Makarov 9mm semi-automatic pistol in the grass between the sidewalk and the building. A second firearm wrapped in a blue bandana, which was not part of the charge in this case, was found in the location where Officer Sundermeier had testified that he heard the second sound of something hitting the ground. Thus, two firearms were recovered at the scene and Officer Sundermeier testified he heard both of them hit the ground. Officer Preston, 10 to 20 feet closer to Polite, heard neither of the firearms hit the ground.

         Officer Sundermeier testified that on the night in question he recognized Polite from prior contacts. He testified that he knew Polite was under the age of 21 and that Polite had previously told him that he was a 40th Ave. Crips gang member.

         Polite was transported to Central Headquarters to be interviewed. Once at the station, Polite was placed in an interrogation room and informed of his Miranda rights. Officer Preston questioned Polite for less than an hour. During questioning, Polite denied possession and knowledge of the 9mm handgun. He consented in writing to the collection of a DNA sample and to a search of his cell phone. Polite voluntarily provided the passcode for his cell phone. Among the phone's contents were photographs of the recovered 9mm handgun and marijuana. Polite eventually admitted to being a gang member and a marijuana user.

         Polite was charged with possession of a firearm while being an unlawful user of, or addicted to, a controlled substance, in violation of 18 U.S.C. § 922(g)(3). Polite moved to suppress any statements he made and any evidence obtained from a buccal swab and the search of his cell phone on the grounds that he had been unlawfully detained without reasonable suspicion and arrested without probable cause. The magistrate judge held an evidentiary hearing and issued findings and a recommendation that Polite's motion be denied. The district judge overruled Polite's objections, adopted the magistrate judge's findings, and denied Polite's motion to suppress. Following the district court's denial of his motion to suppress, Polite entered a conditional guilty plea, reserving a right to appeal the denial of his motion to suppress. The court sentenced Polite to time served. This appeal followed.

         II.Discus ...


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