UNITED STATES of America, Appellee, v. Isaac Eugene BARLOW, Appellant, 308 F.3d 895

BYE, Circuit Judge. Following a conditional plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922, Isaac E. Barlow appeals the district court’s denial of his motion to suppress evidence seized during an investigatory stop of a car in which he was a passenger. Barlow contends that the detention of the car unlawfully exceeded the scope of the stop. For reasons stated below, we vacate the order denying the renewed motion to suppress evidence and remand for further proceedings.

I Between the early morning hours of 12:00 a.m. and 12:30 a.m. on July 28, 1997, Minneapolis Police Officer Kim Hedberg observed a Geo Tracker pass by as he exited a parking lot. The record indicates the occupants of the Tracker glanced at Officer Hedberg and were startled and surprised to see him. Officer Hedberg was in uniform and in a marked patrol car. The Tracker increased its speed and made a quick left turn in what appeared to be an attempt to evade Officer Hedberg. Officer Hedberg followed the Tracker into an alley and observed it pull over and park.

Officer Hedberg saw two passengers, both black males, exit the Tracker and walk in the direction of a private residence. Officer Hedberg drove by the Tracker. He noticed the driver was white with brown or blonde hair, but could not determine the driver’s gender. Officer Hedberg then came upon the two men who had just exited the vehicle. He asked them whether they lived in that residence. They said they did, however, he did not see them enter it. Officer Hedberg did not ask any additional questions and exited the alley.

He ran a computer check on the registration on the Tracker, whereupon he discovered the owner of the Tracker, a male, had an outstanding misdemeanor warrant. Officer Hedberg decided to investigate whether the owner of the Tracker was present in the vehicle, so he returned to the alley. In so doing, Officer Hedberg observed the Tracker in motion, and also noticed that the same two men who had previously exited it, and who had told Officer Hedberg that they were headed toward their residence, were back in the Tracker. Officer Hedberg activated his light bar and initiated a stop.

He approached the Tracker and discovered that the driver was a female. Officer Hedberg asked the driver for her license and she responded she did not have it with her. He then asked the driver to accompany him to his patrol car while he ran a computer check on her license. While in the patrol car, the driver told Officer Hedberg that she knew the identity of the passenger seated in front, but she did not know the identity of the passenger seated in back. Officer Hedberg returned to the Tracker to identify the passengers. When he approached the Tracker, he initially asked the passengers where they lived.

The responses they provided conflicted with their earlier statements they had provided while in the alley. Both passengers were requested to exit the Tracker and produce identification. As soon as Barlow exited the Tracker, Officer Hedberg conducted a pat-down search for weapons and felt bullets in Barlow’s back pocket. He removed the bullets from Barlow’s pocket, placed him in handcuffs and in the patrol car. Thereafter, Officer Hedberg shined a flashlight into the Tracker, where, in plain view, he saw a firearm on the floor in the back seat where Barlow had been seated.

Officer Hedberg seized the firearm and placed Barlow under arrest. II Barlow concedes that the underlying basis for stopping the Tracker was valid. See United States v. Cortez, 449 U.S. 411, 417 n. 2, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (“[A]n officer may stop and question a person if there are reasonable grounds to believe that person is wanted for past criminal conduct”).

But he contends that the officer exceeded the purpose of stopping the car — to determine whether the Tracker’s owner, the subject of the outstanding warrant, was present in the car— and thus the seizure was illegal and the evidence obtained was tainted by that illegality. Barlow filed two motions to suppress the evidence. His original motion to suppress was referred to a magistrate judge for a report and recommendation. The magistrate judge held an evidentiary hearing and ultimately recommended that Barlow’s motion be denied.

Barlow raised certain objections, but after conducting a de novo review, the district court likewise denied Barlow’s motion to suppress. Subsequently, during his plea hearing, Barlow renewed his motion to suppress, after the district court allowed him to make Defendant’s Exhibit 10 part of the court’s record. The district court, once again, denied Barlow’s motion to suppress. In order to review the district court’s judgment in full, we must review the original motion to suppress and the renewed motion to suppress separately.

In doing so, we review for clear error the facts supporting a district court’s denial of a motion to suppress, and review de novo the legal conclusions based upon those facts. See United States v. Perez, 200 F.3d 576, 579 (8th Cir.2000) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). A. Original Motion to Suppress In adopting the magistrate judge’s report and recommendation, the district court found the initial stop of the Tracker to be valid based on the officer’s reasonable suspicion that the occupants of the vehicle had been engaged in criminal activity.

See Terry v. Ohio, 392 U.S. 1, 25-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The district court also found the police officer justifiably expanded the scope of the investigation beyond the misdemeanor warrant which was the purpose of the initial stop. Barlow argues that Officer Hedberg should have terminated the stop before asking the driver a single question. According to Barlow, Officer Hedberg knew the subject of the misdemeanor warrant (the Tracker’s owner) was a white male. Yet Officer Hedberg had observed the Tracker’s driver as being a white woman and its passengers being black males.

Barlow argues that because Officer Hed-berg had no reason to suspect that any of the Tracker’s occupants was the subject of the warrant, he lacked justification for asking questions and prolonging the stop. Barlow’s argument hinges upon his contention that Officer Hedberg knew both the gender and the race of the Tracker’s owner when he executed the stop. The evidence, however, fails to substantiate Barlow’s contention. The evidence presented to the magistrate judge at the hearing indicated that Officer Hedberg knew only the gender of the Tracker’s owner.

During the evidentiary hearing, Officer Hedberg testified he knew only the Tracker’s owner was a male. The prosecutor then asked Officer Hedberg whether he knew the owner’s race. His answer was no, and further testified that the computer print-out did not provide the race of the Tracker’s owner; rather, it only provided the gender, hair color and eye color. Barlow’s attorney did not cross-examine Officer Hedberg on this issue, nor was he cross-examined about the contents of the computer print-out.

In fact, the computer print-out, which contained the physical description of the owner, and did include race, was only marked as Defendant’s Exhibit 10 during the evidentiary hearing. It was never admitted into evidence. Defendant’s Exhibit 10, therefore, was not in the record. In the report and recommendation, the magistrate judge noted the dearth of information Officer Hedberg possessed regarding the physical description of the Tracker’s owner, stating: A registration typically reveals a brief description of the owner, however, during his testimony, Officer Hedberg was not asked about that description.

The physical appearance of the owner remains unknown, so the evidence does not disclose whether a reasonable officer would have reached a conclusion as to whether the male passengers might have been the owner of the car and the subject of the warrant. Report & Recommendation 3-4. The magistrate judge ultimately recommended Barlow’s motion to suppress be denied. Barlow did not object to the magistrate judge’s aforementioned factual finding.

Thus, while we normally review for clear error the facts supporting a district court’s denial of a motion to suppress, the factual findings here will be reviewed only for plain error, because Barlow failed to object to this factual finding. See United States v. Looking, 156 F.3d 803, 809 (8th Cir.1998). Because the record was devoid of any evidence suggesting, much less demonstrating, Officer Hedberg knew the race of the owner when he stopped the Tracker, we cannot say the district court plainly erred. Barlow never raised nor argued the race issue.

Consequently, since there was no evidence upon which the magistrate judge or the district court could possibly have found that Officer Hedberg knew the race of the owner when he stopped the Tracker, the district court did not err in finding Officer Hedberg had reasonable suspicion to believe the Tracker’s owner may have been present as a passenger. B. Renewed Motion to Suppress At his plea hearing, Barlow requested permission to make Defendant’s Exhibit 10 part of the record.

Barlow’s attorney informed the district court the magistrate judge had essentially been presented with the contents of Defendant’s Exhibit 10 through testimony, and therefore the exhibit itself should be added to the record to assist in Barlow’s eventual appeal. With the assurance of Barlow’s attorney that the addition of the exhibit would not prompt a remand on appeal, the district court received Exhibit 10 into the record. The government did not object to Defendant’s Exhibit 10 being made part of the record. Barlow then sought to renew his motion to suppress evidence.

The district court allowed Barlow to renew his motion, and considered it as if Barlow had moved the court to reconsider its earlier ruling. The district court believed the addition of Exhibit 10 to the record did not alter the facts underpinning the original suppression motion because Barlow’s attorney expressly represented that “Judge Mason had before him, in essence, the contents of the exhibit.” Tr. of Plea Hearing 13. Consequently, the district court summarily denied the renewed motion based on this representation.

The contents of Defendant’s Exhibit 10, however, were not before the magistrate judge, and the addition of it to the record does alter the facts underpinning the original suppression motion. We are mindful the district court expressed concern that making Defendant’s Exhibit 10 part of the record would alter the court of appeals’ view of the suppression ruling. Although we sympathize with the district court, and believe the district court should be entitled to rely on an attorney’s representation, we cannot, however, overlook the fact of its existence.

This is especially true because Barlow’s attorney articulated the basis for making the exhibit part of the record, specifically stating that Officer Hedberg knew both the gender and the race of the Tracker’s owner when he effectuated the stop. The exhibit and the argument have been preserved for appeal. Defendant’s Exhibit 10 contains material information which arguably casts doubt on the denial of Barlow’s original motion to suppress. But the district court did not have an adequate opportunity to consider the exhibit, and to correct any mistake if one was made in the first instance. Cf. United States v.

Longmire, 761 F.2d 411, 420-21 (7th Cir.1985) (“Unless the district court is given an opportunity to correct the error, an appellate court cannot review evidence presented at trial which casts doubt upon a pre-trial suppression motion.”); Masiello v. United States, 304 F.2d 399, 400-02 (D.C.Cir.1962) (vacating the judgment and remanding because the evidence that might support the trial judge’s determination emerged after the conclusion of the suppression hearing (during the trial) and conflicted directly with testimony adduced at the pretrial hearing).

In fact, the district court was deprived of the opportunity to consider Defendant’s Exhibit 10 because of the attorney’s representation, as evidenced by its

summary denial of Barlow’s renewed motion to suppress. III. Neither the magistrate judge nor the district court made a credibility finding concerning Officer Hedberg’s testimony as it pertains to the issue of race. Defendant’s Exhibit 10 bears directly upon Officer’s Hedberg’s credibility. Therefore, we vacate the district court’s order denying the renewed motion to suppress evidence and remand to allow the district court the opportunity to reconsider Barlow’s renewed motion to suppress evidence in light of Defendant’s Exhibit 10 and all other evidence contained in the record. . The Honorable John M.

Mason, United States Magistrate Judge for the District of Minnesota. . Barlow likely did not object to the magistrate judge's finding because his argument focused on the fact that Officer Hedberg knew the gender of the subject. Barlow argued that once Officer Hedberg knew the driver was not male, the continued detention of the Tracker was unlawful because any reasonable suspicion that supported the initial Terry stop dissipated at that point.

Barlow’s attorney failed to pay heed to Officer Hedberg's testimony that he stopped the Tracker in order to determine whether any of its occupants, not merely the driver, was the subject of the outstanding warrant. See Tr. of Evidentiary Hearing 42. .

The district court stated to Barlow's attorney, "[the] reason I am raising it, is there any question if I accept the plea with this condition in it, the reservation of the right to appeal, that that appeal is going to go down to the Eighth Circuit and the Eighth Circuit is going to say, let’s send it back and see what the district court or the magistrate judge is going to say about that issue now that that exhibit is in? That's the only concern I have.” See Tr. of Plea Hearing 12-13. .

Barlow’s attorney stated "[T]he only information that is relevant to the suppression issue is the fact that on the warrant it does set forth the race of the person who was wanted on the misdemeanor warrant out of, I believe it's Anoka County, is white and so there was the testimony by the officer that the driver of the vehicle was white; couldn’t determine gender. The two passengers were black and I believe that's relevant to the issue under consideration.

And as part of the preservation of rights on appeal, I would renew my motion to suppress based on the fact that at the point the officer realized that the white driver was a woman, that any reasonable suspicions that would support a Terry stop dissipated at that point.” See Tr. of Plea Hearing 11-12.