United States v. Baker ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 95-5287
ANTHONY MARCELLUS BAKER,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Peter J. Messitte, District Judge.
(CR-94-361-PJM)
Argued: February 1, 1996
Decided: March 13, 1996
Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Reversed and remanded by published opinion. Judge Wilkins wrote
the opinion, in which Judge Luttig and Judge Motz joined.
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COUNSEL
ARGUED: Sandra Lee Wilkinson, Assistant United States Attorney,
Greenbelt, Maryland, for Appellant. Robert W. Mance, III, Washing-
ton, D.C., for Appellee. ON BRIEF: Lynne A. Battaglia, United
States Attorney, Greenbelt, Maryland, for Appellant.
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OPINION
WILKINS, Circuit Judge:
Anthony Marcellus Baker was indicted for possession of a firearm
by a convicted felon in violation of 18 U.S.C.A.§ 922(g) (West Supp.
1995). Before trial, the district court granted his motion to suppress
the firearm as evidence on the basis that its seizure was the product
of an unreasonable search. We reverse.
I.
While on patrol at approximately 1:20 a.m. on January 25, 1994,
United States Park Police Officer Pope observed four automobiles
that appeared to be travelling together proceed through a red traffic
light in close succession and turn onto the Suitland Parkway in Mary-
land, an area within the jurisdiction of the Park Police. As the officer
began pursuing the vehicles, the driver of the last automobile signifi-
cantly decreased his speed and began swerving back and forth in the
highway in an apparent attempt to prevent the officer from overtaking
the other three vehicles. After another officer responded to his call for
assistance, Officer Pope was able to pass the last automobile and pur-
sue the other three. Although one automobile escaped by turning off
of the Parkway and leaving the jurisdiction of the Park Police, Officer
Pope succeeded in effecting a traffic stop of the two remaining vehi-
cles, the second of which was driven by Baker.
In response to a question from Officer Pope, the driver of the first
automobile related that the four drivers knew each other and were
travelling together. He then moved to Baker's vehicle and repeated
the question. Baker denied knowing the other three drivers. During
this conversation, Officer Pope observed a triangular-shaped bulge
underneath the front of Baker's shirt, near the waistband of his pants.
In order to determine whether Baker was carrying a concealed
weapon, Officer Pope ordered Baker to lift his shirt above the bulge.
Twice, he quickly raised his shirt approximately an inch and then
dropped it, preventing the officer from observing what was concealed
underneath. Finally, Baker lifted his shirt sufficiently to permit Offi-
cer Pope to see a handgun tucked into the waistband of his pants.
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Ordering Baker to raise his hands, Officer Pope drew his weapon
and requested assistance via his radio. After initially complying with
the officer's request, Baker slowly dropped his hands and pushed the
door of the vehicle into Officer Pope, who quickly kicked it shut.
Baker then exited the automobile on the passenger side and moved
toward the rear of the vehicle. He removed the weapon from his
waistband and, after lifting it approximately to shoulder height,
dropped it, turned, and ran. Several months later, he was apprehended
and charged with violating § 922(g).
Baker filed a pretrial motion to suppress the firearm, arguing that
both the traffic stop and the resulting search were unreasonable under
the Fourth Amendment. The district court ruled that the stop was law-
ful, but granted the motion to suppress, concluding that the evidence
was obtained as a result of an unlawful search. It reasoned that Offi-
cer Pope had no justification to believe that Baker was armed and
dangerous* and that even if the officer reasonably could have formed
such a belief, he should have conducted a "patdown frisk" instead of
directing Baker to raise his shirt. The Government appeals. See 18
U.S.C.A. § 3731 (West Supp. 1995).
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*The record is somewhat ambiguous concerning whether the district
court ruled that Officer Pope lacked a reasonable basis to conduct a pro-
tective search. Baker has briefed the issue as though the district court so
ruled, and we view the record as supporting this determination. The dis-
trict court initially stated that it would accept"for the time being" that
the officer possessed a proper basis for a Terry search and that it was
"not deciding today that there was no basis for a Terry search." J.A. 179.
Nevertheless, it later stated:
In this case it was a routine, straightforward traffic stop. There
was nothing--I emphasize nothing--in the defendant's actions
that gave the officer any reason to believe that he was threatened.
A bulge alone will not do it. The fact that it was one o'clock in
the morning will not do it. People carry weapons or don't carry
weapons at one o'clock. No indication that it was a high crime
area. And I cannot find, on the basis of the mere inconsistent sto-
ries given by the two, that that raised the whole transaction to the
level of articulable suspicion to permit the kind of intrusion that
went on here.
J.A. 185.
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II.
The district court was in error in concluding that Officer Pope
lacked a proper basis to conduct a protective search. Because of the
hazards involved in a roadside encounter with a suspect, a law
enforcement officer may conduct a protective search aimed at uncov-
ering concealed weapons after making a proper traffic stop if the offi-
cer "possesses a reasonable belief based on `specific and articulable
facts which, taken together with the rational inferences from those
facts, reasonably warrant' the officer in believing that the suspect is
dangerous." Michigan v. Long, 463 U.S. 1032, 1049 (1983) (quoting
Terry v. Ohio, 392 U.S. 1, 21 (1968)). An officer's belief must be
based not on subjective hunches but on information sufficient to cause
a reasonably prudent person under the circumstances to believe that
either his safety or that of others is in danger. Terry, 392 U.S. at 27;
see also Long, 463 U.S. at 1050; Adams v. Williams, 407 U.S. 143,
146 (1972).
The question of whether Officer Pope possessed a reasonable belief
that Baker was armed and dangerous need not detain us long. Based
on the inordinate risk of danger to law enforcement officers during
traffic stops, observing a bulge that could be made by a weapon in a
suspect's clothing reasonably warrants a belief that the suspect is
potentially dangerous, even if the suspect was stopped only for a
minor violation. Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977)
(per curiam) ("The bulge in the jacket permitted the officer to con-
clude that [the suspect] was armed and thus posed a serious and pres-
ent danger to the safety of the officer."). Accordingly, the district
court erred in concluding that there was no basis on which Officer
Pope reasonably could suspect that Baker was armed and dangerous.
See United States v. Perrin, 45 F.3d 869, 871 (4th Cir.) (determina-
tion of reasonableness of suspicion to support protective search sub-
ject to de novo review), cert. denied, 115 S. Ct. 2287 (1995).
III.
The district court was also in error in concluding that the manner
in which Officer Pope conducted the search of Baker was unreason-
able. Determining the reasonableness of a protective search involves
balancing the officer's interest in self-protection against the intrusion
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on individual rights necessitated by the search. See Long, 463 U.S. at
1046 (citing Terry, 392 U.S. at 21). A police officer's interest in self-
protection arises when he reasonably believes that a suspect is armed
and dangerous; at that point, he has an interest in"taking steps to
assure himself that the person with whom he is dealing is not armed
with a weapon that could unexpectedly and fatally be used against
him." Terry, 392 U.S. at 23. The steps taken by the officer for self-
protection, however, necessarily intrude upon the individual's interest
in personal security, which is protected from unreasonable govern-
mental intrusion by the Fourth Amendment. See id. at 19. To deter-
mine whether the intrusion was reasonable under the Fourth
Amendment, a court must analyze the competing interests of the offi-
cer and the individual. Id. at 20-21; see also Long, 463 U.S. at 1046-
47.
In finding that Officer Pope was restricted to conducting a patdown
frisk, the district court erroneously concluded that a patdown frisk
was the only permissible method of conducting a Terry search. This
reasoning is incorrect because the reasonableness of a protective
search depends on the factual circumstances of each case. See Terry,
392 U.S. at 29; cf. Sibron v. New York, 392 U.S. 40, 59 (1968) ("The
constitutional validity of a warrantless search is pre-eminently the sort
of question which can only be decided in the concrete factual context
of the individual case."). Thus, a patdown frisk is but one example of
how a reasonable protective search may be conducted. Cf. Adams,
407 U.S. at 147-48 (officer acted reasonably under the circumstances
by reaching directly for weapon in waistband of suspect's pants);
United States v. Hill, 545 F.2d 1191, 1193 (9th Cir. 1976) (per
curiam) (officer acted reasonably in lifting shirt of suspect to identify
source of bulge in clothing).
Balancing the officer's interest in self-protection against the result-
ing intrusion upon Baker's personal security, we hold that Officer
Pope's direction was reasonable under the circumstances. Having
formed a reasonable belief that Baker was carrying a weapon, Officer
Pope had an immediate interest in determining whether Baker actu-
ally was armed and, if so, neutralizing any potential threat without
assuming unnecessary risks. See Terry, 392 U.S. at 24. Directing that
he raise his shirt required little movement by Baker and allowed Offi-
cer Pope to immediately determine whether Baker was armed without
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having to come in close contact with him. And, it minimized the risk
that he could draw his weapon before Officer Pope could attempt to
neutralize the potential threat. In comparison, complying with this
direction involved a limited intrusion upon Baker's personal security.
Indeed, this act was less intrusive than the patdown frisk sanctioned
in Terry. The officer avoided the "serious intrusion upon the sanctity
of the person" necessitated by the patdown frisk, which requires the
officer to "feel with sensitive fingers every portion of the prisoner's
body." Terry, 392 U.S. at 17 & n.13. In sum, based on a balancing
of the necessity for the search against the intrusion caused by the
search, directing that Baker raise his shirt constituted a reasonable
search limited to discovering whether he was carrying a concealed
weapon. Cf. id. at 29-30 (applying de novo review to determine the
reasonableness of the method of a protective search).
IV.
For the reasons stated above, we have no difficulty in concluding
that this search was reasonable. Because the district court improperly
granted Baker's motion to suppress, we reverse the decision and
remand to the district court.
REVERSED AND REMANDED
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