On Nov. 20, Carl Roy Burleson pleaded guilty to charges of felon in possession of a firearm in Las Cruces Federal Court. The guilty plea followed a three-year-long court battle and appeals process after his arrest on May 2, 2008.
The final ruling was published on Sept. 12, 2011, when the Federal Tenth Circuit Court of Appeals decided in the United States v. Burleson that the Roswell Police Department had not violated Burleson’s Fourth Amendment rights.
Burleson was stopped, in what is known as a Terry Stop, shortly before midnight. Officer Jeff Kuepfer decided to question Burleson and two companions as they exited the alley and began walking in the middle of the street. One of the three was carrying a pit bull without a leash.
A Terry Stop is a pedestrian stop. The name stems from the 1968 decision when United States Supreme Court ruled in Terry versus Ohio that an individual’s Fourth Amendment rights prohibiting unreasonable searches and seizures are not violated when a police officer stops a suspect on the street and frisks him as long as the police officer has a reasonable suspicion of a potential crime and a reasonable belief that the person “may be armed and presently dangerous.”
Chief Al Solis explained that the Terry Stop ruling stated that the stop only required reasonable suspicion and not probable cause, “The court upheld the arrest.”
In the May 2008 arrest, Officer Kuepfer chose to stop the individuals based on the fact that they were carrying a dog, which was older than a puppy. The RPD had received a series of reports of dog thefts in the city. In addition, the pedestrians were walking in the middle of the street, a violation of a New Mexico statute and city ordinance. Officer Kuepfer believed that further investigation was necessary due to increased criminal activity in the neighborhood.
Burleson informed Kuepfer that he had a gun. With notice of a outstanding warrant, Kuepfer had probable cause for arrest.
Kuepfer handcuffed Burleson and located two handguns and ammunition on his person. Since he had a previous felony conviction, Burleson was indicted for federal weapons violations.
His attorney filed a motion to suppress, due to an alleged violation of his client’s Fourth Amendment rights. The Fifth District Court agreed with Burleson’s attorney and suppressed the guns charges.
The government chose to challenge the District Court decision and filed an appeal with the Federal Tenth Circuit Court. After reviewing the evidence, the Circuit Court noted that one type of seizure is an investigatory stop in which “a police officer may in appropriate circumstances … approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. The court also noted that the stop must not exceed a reasonable time frame or duration required to complete the stop.
The Tenth Circuit acknowledged in the context of a traffic stop “while an investigative detention is ongoing,” an officer may obtain an individual’s name to check outstanding warrants. The court then examined if officers can run warrant checks during pedestrian stops. The Tenth Circuit court concluded that the same conditions which allow a warrant check during a traffic stop also pertained to pedestrian stop.
Regarding the pedestrian law violation the court of appeals held that it is reasonable for an officer in that situation to assess the circumstances and then decide whether to issue written traffic citations.
The court also decided that the stop was not “completed” simply because the officer told Burleson and his companions that they were not allowed to walk in the street. The court recognized that there was another purpose to the stop, to investigate whether the men had stolen the dog. Thus, they concluded the stop was reasonable, not only to ask questions, but also to obtain their names and confirm their identities in case the dog was later reported stolen.
The stop was documented as lasting between three and five minutes The court held that this is well within a reasonable time frame for this type of stop.
The Circuit Court also ruled that the officer was justified running a warrants check. Dispatch confirmed that there was an outstanding warrant for Burleson. In fact, he had five separate convictions on previous felony charges ranging from commercial burglary, possession of a controlled substance, possession of a stolen vehicle, escape from custody, felon in possession of a firearm to commerce in fire arms.