Eighth Circuit: Warrantless Seizure of Handgun Not Permitted under Plain View Doctrine
by Mark Wilson
The United States Court of Appeals for the Eighth Circuit held that the warrantless seizure of a handgun did not fall within the Plain View exception and was thus an illegal seizure.
Looking for a person of interest, undercover Independence, Missouri police officer Loran Freeman entered Freaks Tattoo Shop, believing the person worked there. Employee Joseph Lewis was sitting at the reception desk in a common area inside the front door. Freeman did not see the person of interest, so he looked around for about 10 minutes and left.
A few minutes later, Freeman returned with detective Aaron Gietzen. They did not have a warrant. A customer was seated in the common area, but nobody was at the reception desk. The detectives rang a bell on the desk, but no one answered. The customer said Lewis was in the back of the shop. Just behind the reception desk, an open doorway led to a work area. No signs indicated that it was a restricted area. Freeman knocked on the door frame for two or three minutes, asking if anyone was there, and identifying himself and Gietzen. When nobody answered, Gietzen entered the work area and knocked on a closed door to a back room. Lewis answered and joined the detectives in the work area.
The detectives introduced themselves, said they wanted to talk about the person of interest, and asked if it was okay to talk there. Lewis said it was. Gietzen noticed a handgun in a nylon holster on a shelf in the work area. He removed the gun from the holster to see if it was loaded. Lewis then admitted that he was a felon. The detectives did not know he was a felon until then. They took the gun when they left.
Lewis was charged with felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The trial court denied his motion to suppress the gun, and Lewis pleaded guilty. He reserved the right to appeal the denial of his motion to suppress.
The Eighth Circuit reversed, holding that “the Government failed to carry its burden to show the initial warrantless seizure of the handgun was permitted.”
The Court found that the Plain View exception did not authorize the initial seizure because “at the moment Detective Gietzen seized the handgun, he did not have probable cause to associate it with criminal activity.” The incriminating nature of the gun only became immediately apparent when Lewis admitted he was a felon “after the seizure,” the Court stated.
Likewise, officer safety concerns did not justify seizure of the gun. “A reasonable officer could not draw specific reasonable inferences from these facts to justify seizure of the handgun,” the Court concluded. “The detectives did not suspect Lewis or the customer of any wrongdoing, nor did Lewis or the customer engage in any activity indicating they posed a threat…. Their unparticularized suspicion that Lewis or the customer might spontaneously shoot them does not support a reasonable belief that their safety was in danger.”
The Eighth Circuit reversed the denial of Lewis’ motion to suppress and remanded for proceedings consistent with its opinion. See: United States v. Lewis, 864 F.3d 937 (8th Cir. 2017).
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