Burrell v. McIlroy

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN BURRELL, 

Plaintiff-Appellant, No. 02-15114

v.

 D.C. No.

CV-99-01612-KJD

MIKE MCILROY, GLEN C. RECTOR,

JEFF THORPE, OPINION

Defendants-Appellees.



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

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.

13455

13458 BURRELL v. MCILROY

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.

BURRELL v. MCILROY 13459

OPINION

CALLAHAN, Circuit Judge:

Stephen Burrell (Burrell) appeals the district court’s grant

of summary judgment on behalf of various detectives of the

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.

13460 BURRELL v. MCILROY

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

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

BURRELL v. MCILROY 13461

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

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 shot gun 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.

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.

13462 BURRELL v. MCILROY

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

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] We hold that, assuming without deciding that the

encounter was an arrest and the police lacked probable cause

to arrest Burrell at that time, 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. See Gra-

ham v. Connor, 490 U.S. 386, 396-97 (1989) (“The calculus

of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judg-

ments — in circumstances that are tense, uncertain, and rap-

idly evolving — about the amount of force that is necessary

in a particular situation.”); see also Saucier v. Katz, 533 U.S.

194, 202 (2001) (“If the law did not put the officer on notice

that his conduct would be clearly unlawful, summary judg-

ment based on qualified immunity is appropriate.”).

[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

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

BURRELL v. MCILROY 13463

by Acri v. Varian Assocs., Inc., 114 F.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

that a dealer in narcotics might be armed.”); see also Cun-

ningham v. Gates, 229 F.3d 1271, 1290 (9th Cir. 2000) (“A

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).

13464 BURRELL v. MCILROY

police officer’s right to make an arrest necessarily includes

the right to use some degree of force.”).4

[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.

4

In addition, it is undisputed that the officers were preparing to execute

a search at Burrell’s 1750 Karen Avenue apartment, which was only a

couple blocks away. Under the controlling law at the time of the incident,

an officer could reasonably have believed that he was authorized to detain

such a dangerous individual who remained in close proximity to his resi-

dence, where a search warrant was about to be executed, in order to pro-

tect his safety and the safety of his fellow officers. See Michigan v.

Summers, 452 U.S. 692 (1981) (upholding the constitutionality of the

detention of a person who was descending the front steps of a home as

officers approached to search the residence); see also Muehler v. Mena,

125 S. Ct. 1465, 1469 (2005) (reaffirming the validity of Summers and

noting that “minimizing the risk of harm to officers” is a substantial justi-

fication for detaining an occupant during a search.). As the officers had

received information that there were weapons in the apartment and knew

that there might be a slight delay in the search, with the proliferation of

cellular phones, Burrell’s removal from the curtilage of the apartment did

not ameliorate Detective Rector’s concern for his fellow officers.

BURRELL v. MCILROY 13465

The parties dispute whether detectives of the Las Vegas

Metropolitan Police Department are, in fact, federal officers

who are subject to this rule. Even assuming that the detectives

were subject to this requirement, the clearly established law

at the time of the search would not have put a reasonable offi-

cer on notice of a potential constitutional violation. See Sau-

cier, 533 U.S. at 202.5

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 Bumper v. North Carolina, 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

5

The incidents that form the basis for this action took place on February

4, 1999. This court’s opinion in Gantt, holding that the federal rules

require a search warrant to be delivered before a search is commenced,

was not filed until June 7, 1999. Prior to Gantt, the prevailing law of the

circuit was that the failure to serve a warrant at the outset of a search did

not always violate the Fourth Amendment. See United States v. Woodring,

444 F.2d 749 (9th Cir. 1971); Nordelli v. United States, 24 F.2d 665 (9th

Cir. 1928).

13466 BURRELL v. MCILROY

apartment, there is nothing in the record that indicates that

Detective Rector was aware of Johnson’s misinterpretation.6

Thus, a reasonable officer in his position would not have been

on notice that Johnson’s consent was in any way involuntary.

[8] 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 suspi-

cion 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).

[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, Senior Circuit Judge, dissenting:

I respectfully dissent from the majority’s holding that

Detective Rector is entitled to qualified immunity. The major-

ity assumes, without deciding, that Burrell can establish a

6

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 13467

Fourth Amendment violation. Given the uncontroverted facts

in the record, I would hold that Burrell has in fact established

a Fourth Amendment violation by the initial warrantless arrest

by Detective Rector in the absence of probable cause, which,

as defendants conceded at oral argument, was lacking up until

the moment officers discovered a weapon in Burrell’s apart-

ment. I would also hold that no reasonable officer in Detec-

tive Rector’s position could have believed that he could

properly arrest Burrell without probable cause, or that a deten-

tion, much less an arrest, could otherwise be justified as inci-

dent to a search under Michigan v. Summers, 452 U.S. 692

(1981), where a search warrant had not yet been issued.1

The defendants do not controvert that Detective Rector

ordered Burrell to get out of his car at gunpoint, forced him

face-down to the ground at gunpoint, handcuffed him, placed

him in a police car while Burrell’s car was searched and, that

1

The district court below held that Rector effected an arrest that was jus-

tified under Michigan v. Summers. It is undisputed that the detectives in

this case had not yet obtained a search warrant to search Burrell’s home

at the time Detective Rector seized Mr. Burrell at gunpoint. Michigan v.

Summers does not provide for a limited detention, much less an arrest,

absent a search warrant. Even if a search warrant had been obtained at the

time of the seizure, I am not aware of any authority that has extended

Michigan v. Summers to authorize the arrest of persons associated with the

premises to be searched when such persons are neither on nor near the

premises, for purposes of conveying them to the situs of the search. It is

notable that defendants did not cite to Michigan v. Summers in their appel-

late briefs, nor do they now argue that the district court’s grant of sum-

mary judgment should be upheld on this ground. Nevertheless, the

majority suggests that Rector’s actions could somehow have been justified

under Michigan v. Summers because such preemptive action would have

minimized risk to the officers sometime in the future when they succeeded

in obtaining a warrant to search the premises. A reasonable officer in Rec-

tor’s position, however, should have known that Michigan v. Summers

does not purport to justify any such detention or arrest, whatever the cir-

cumstances, absent the existence of a search warrant. Here, the search

warrant had not yet been issued, and any reasonable officer should have

known that, absent a search warrant, a stop requires reasonable suspicion

and an arrest requires probable cause.

13468 BURRELL v. MCILROY

search proving fruitless, then transported him, still in hand-

cuffs, to 1750 Karen Avenue to await the grant of the search

warrant application. Moreover, defendants do not dispute that

Detective Rector Mirandized Burrell sometime before the

search of either of Burrell’s apartments began. According to

the arrest report in the record, and in conformity with Detec-

tive Rector’s trial testimony in the state court criminal pro-

ceedings, Detective Rector Mirandized Burrell some time

before Rector left to seek consent to search the second apart-

ment at 1500 Karen, and therefore necessarily did so before

the search warrant for 1750 Karen had been issued, and

before the search of either apartment began. According to the

same arrest report, after the searches of the apartments each

revealed a weapon, Detective McIlroy arrested Burrell, charg-

ing him with weapons counts. Burrell does not dispute the

existence of probable cause for this second arrest following

the discovery of weapons. Burrell, whose fingerprints did not

appear on either of the weapons recovered, and who shared

his apartments with other occupants, was tried and acquitted

of the federal weapons charges arising from both of the Feb-

ruary 4 searches.

Although defendants have argued, for the first time on

appeal, that the initial seizure by Detective Rector was an

investigatory stop, the seizure in this case was conducted in

a manner indistinguishable from a full-scale formal arrest. See

Washington v. Lambert, 98 F.3d 1181,1188-89 (9th Cir.

1996). None of the special circumstances in which courts

have found that aggressive police action or especially intru-

sive means of effecting a stop may be justified, without con-

verting the seizure into an arrest, are present here. See id. at

1189 (“our cases make clear that we have only allowed the

use of especially intrusive means of effecting a stop in special

circumstances, such as 1) where the suspect is uncooperative

or takes action at the scene that raises a reasonable possibility

of danger or flight; 2) where the police have information that

the suspect is currently armed; 3) where the stop closely fol-

lows a violent crime; and 4) where the police have informa-

BURRELL v. MCILROY 13469

tion that a crime that may involve violence is about to occur”)

(footnotes omitted). 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 arrest tactics in seizing Burrell.

The record, however, is devoid of any particularized facts or

objective bases justifying the type of seizure effected here.2

While defendants’ counsel contended at oral argument that

the officers believed Burrell to be armed, counsel’s argument

does not constitute record evidence of the specific “informa-

tion” which the cases cited in Washington v. Lambert require,

and it is nevertheless inappropriate for an appellate court to

assume or infer purported beliefs not actually articulated in

the record, particularly where defendants have been repre-

sented by counsel from the beginning of this litigation and

have had the opportunity to introduce evidentiary material

supporting their motions for summary judgment below.3 In

2

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 arrest.

3

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).

13470 BURRELL v. MCILROY

any case, notwithstanding defendants’ arguments, the only

reasonable conclusion to be drawn from the undisputed facts

in the record is that Mr. Burrell was formally arrested when

he first encountered Detective Rector.

The majority nevertheless holds that Detective Rector had

arguable justification for the seizure and is therefore entitled

to qualified immunity. Because it is clear from the record that

Mr. Burrell was arrested without probable cause, Detective

Rector can only be entitled to qualified immunity if a reason-

able officer in his position would have an arguable basis to

believe probable cause existed to arrest Burrell. Again, the

defendants also have not identified any specific facts in the

record which could form the basis for an objectively reason-

able belief that probable cause existed for an arrest, and they

have limited their argument on appeal 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 exe-

cution 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. 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 officers had

particularized information that Burrell was personally armed

at the time of the seizure by Detective Rector and prior to the

search. The record on this motion for summary judgment, in

short, merely shows that the detectives at most 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.

I would therefore reverse the district court’s grant of sum-

mary judgment for Detective Rector and remand for further

proceedings on Burrell’s claim based upon his unconstitu-

tional seizure. At minimum, the fact that the record is devoid

of any sworn statements or factual submissions by the defen-

BURRELL v. MCILROY 13471

dants that could support a finding of qualified immunity war-

rants remand for expansion of the record and to allow the

district court to consider qualified immunity in the first

instance.