United States v. Banshee , 85 F.3d 571 ( 1996 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-8492
D.C. Docket No. CR294-52-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARY LEE BANSHEE, a/k/a Mary Lee Johnson,
Defendant-Appellant,
Appeal from the United States District Court
for the Middle District of Georgia
(June 18, 1996)
As Amended July 12, 1996
Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit
Judge, and MILLS*, District Judge.
___________________
*Honorable Richard Mills, U.S. District Judge for the
Central District of Illinois, sitting by designation.
REVISED OPINION
RICHARD MILLS, District Judge:
Motion to suppress.
Denied below.
Appealed.
We affirm.
I. FACTS
Following a jury trial in which she was convicted of
Possession with Intent to Distribute Cocaine (21 U.S.C. §
841(a)(1)) and violating the Travel Act (18 U.S.C. §
1952(a)(3), Mary Lee Banshee was sentenced to 97 months
imprisonment. The only issue on appeal is whether the
district court properly denied a motion to suppress cocaine
found during a search. Although for different reasons than
those employed by the district court, we conclude the search
was lawful.
At approximately 5:00 a.m. on July 31, 1994, Mary Lee
Banshee and Lee Ann Johnson were passengers in a rented car
being driven by Kenneth Parker northbound on I-95 in Camden
County, Georgia. Because the car was being operated with the
high-beam lights on when there was traffic in the southbound
lane, Deputy Sheriff William Todd stopped the vehicle. The
traffic stop was both video and audio taped.1
When he stopped the car, Deputy Todd approached and told
1
We commend the use of video tape by police officers. It
is a great benefit to the community, the courts, and the police.
Parker to get out of the car. Once Parker got out, Deputy
Todd asked him for his license. Parker failed to present a
license but said he lived in South Carolina and had a license
from the District of Columbia. Parker also told Deputy Todd
that he and his passengers were enroute from a vacation in
Miami, Florida and that his girl friend, Banshee, had rented
the car.
While a second officer instituted a computer records
check, Deputy Todd approached Banshee who was in the passenger
seat. In response to Deputy Todd's questions, Banshee stated
that a friend had rented the car and that they were returning
from Orlando, Florida where they had gone to Disney World.
Banshee indicated that Orlando was as far south as the trio
had traveled.
The computer check revealed that Parker did not have a
license from either South Carolina or from the District of
Columbia--although the problem may have been with Parker's
first name. Nevertheless, Deputy Todd only issued a warning
ticket, instructed Parker that someone else would have to
drive, and told Parker he was free to go.
Before Parker could leave, however, Deputy Todd asked
Parker for consent to search the car. Parker gave his
consent. Thereafter, Parker was quickly frisked and Deputy
Todd approached the passengers. Johnson exited the vehicle
first. When she did, Deputy Todd asked her if she had any
weapons. Johnson replied that she did not. Deputy Todd then
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directed her, without conducting a frisk, to wait behind the
car with Parker.
Deputy Todd then told Banshee to get out of the car.
When Banshee got out, Deputy Todd noticed a bulge in her
midsection and asked her if she had any weapons or "anything"
on her person. Banshee replied that she did not. Deputy Todd
then asked her to "turn around and let me see." When she did,
Deputy Todd asked: "you ain't got nothing stuck here?" In
response, Banshee stated that she was pregnant.
Deputy Todd then remarked to the other officer: "if they
got anything she got it on her--she's saying she's pregnant.
She, She got it on her . . . I can see it, she got it on her.
Go ahead start searching [the car]." Thereafter, without
frisking Banshee, Deputy Todd directed her to the rear of the
rented vehicle and Deputy Todd got in his car.
Once in his car, Deputy Todd got on the radio and asked
for a female officer to conduct a search. In so doing, he
stated: "man, I think I got another one here, uh, concealed
though to where I'm not going to be able to get to it without
a female." No female officers, however, were available.
Deputy Todd then exited his vehicle and performed a pat-down
of Banshee's mid-section. After doing so, he directed Parker
and Johnson to get on the ground and he handcuffed Banshee.
Once she was handcuffed, Deputy Todd asked Banshee what
she was concealing. Banshee replied that it was something her
boy friend had given her. Deputy Todd then removed one of
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Banshee's hands from the handcuffs and told her to put the
package that she was concealing on the hood of the police car.
Deputy Todd then again handcuffed Banshee and proceeded to
open the package which was wrapped in tape. The package
field-tested positive for cocaine and was eventually found to
contain 728.7 grams of cocaine.
II. DISTRICT COURT FINDINGS
After Banshee timely moved to suppress the cocaine, a
hearing was held before United States Magistrate Judge James
E. Graham. Following the hearing, Magistrate Judge Graham
issued a very detailed 22-page recommendation to the district
court. The basis of the recommendation was that: (1) the stop
was not pretextual; (2) the scope of the stop was permissible;
(3) consent to search the car was given; (4) the pat-down
search of Banshee was proper under Terry v. Ohio, 392 U.S. 1
(1968); (5) Deputy Todd was entitled to seize the cocaine
package because he believed the package was contraband; (6)
the detention was proper under Terry; and (7) the search of
the package was lawful because when Deputy Todd opened the
package there was probable cause to arrest Banshee. The
district court accepted the recommendation and denied the
motion to suppress.
On appeal, Banshee contends that the stop was pretextual
and that Deputy Todd lacked reasonable suspicion much less
probable cause to detain, frisk, and search her.
Alternatively, she argues that even if Deputy Todd had a
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reasonable suspicion, the stop elevated into an unlawful
arrest, and the search exceeded anything permitted under
Terry. Finally, she maintains that the warrantless search of
the package was impermissible.
III. ANALYSIS
We review whether there was reasonable suspicion and
probable cause de novo. Ornelas v. United States, 116 S. Ct.
1657 (1996).
After carefully reviewing the record, we find that the
findings adopted by the district court on the issues of the
alleged pretextual stop and the search of the cocaine package,
after it was on the hood of the car, are fully supported by
the record and the law. Accordingly, those two issues do not
need additional discussion.
The Terry related issues are more problematic.
Nevertheless, because we find that Deputy Todd had probable
cause to conduct a search and that exigent circumstances
existed, whether or not the frisk and ensuing search were
justifiable pursuant to Terry need not be addressed.
"When the police possess probable cause to conduct a
search, but because of exigent circumstances, do not have time
to obtain a warrant, they may search without a warrant."
United States v. Juarez, 573 F.2d 267, 274 (5th Cir.), cert.
denied, 439 U.S. 915 (1978). The rule applies equally to
searches of person and property. See Schmerber v. California,
384 U.S. 757 (1966) (applying rule to a person).
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In this case, based upon the inconsistent statements and
the bulge in Banshee's mid-section, we find that Deputy Todd
had probable cause to believe a search would uncover evidence
of a crime. See United States v. Thorton, 733 F.2d 121, 127-
28 (D.C.Cir. 1984) (discussing what constitutes probable cause
in this context). We also find that there were exigent
circumstances excusing the need for a warrant. See Juarez,
573 F.2d at 275 (finding exigent circumstances when a detained
suspect might have left with the contraband if police would
have waited to secure a warrant).
Specifically, Deputy Todd had the option of either
letting Banshee go or detaining her for a prolonged period of
time while he secured a warrant. Accordingly, under the
circumstances, the frisk was much less an intrusion than a
prolonged detention. See WAYNE R. LaFAVE, SEARCH AND SEIZURE
§ 6.5(c) (1994) ("[w]here, for example, only a very limited
search into a specific location is needed, it may be that an
immediate but warrantless search of that place is so clearly
a lesser intrusion that it may be undertaken in lieu of
impoundment of the premises until a warrant can be
obtained.").
Accordingly, we hold that Deputy Todd had probable
cause to conduct a search and that exigent circumstances
excused the need to get a warrant.
We also conclude that the search could be considered a
lawful search incident to an arrest. Specifically, we find
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that the bulge in Banshee's mid-section, coupled with the
inconsistent statements, were sufficient grounds for Deputy
Todd to conclude that Banshee was committing a crime. See
United States v. Tomaszewski, 833 F.2d 1532, 1535 (11th Cir.
1987) (finding probable cause to arrest based upon bulge in
defendant's clothing); United States v. Elsoffer, 671 F.2d
1294, 1299 (11th Cir. 1982) (same). Moreover, because there
was probable cause for the arrest before the search and the
arrest immediately followed the challenged search, the fact
that Banshee was not under arrest at the time of the search
does not render the search incident to arrest doctrine
inapplicable. Rawlings v. Kentucky, 448 U.S. 98, 111 (1980);
Thorton, 733 F.2d at 128 n9.
IV. CONCLUSION
We find that the search was indeed lawful for the
reasons stated, and therefore affirm the denial of the motion
to suppress.
AFFIRMED.
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