United States v. Holmes ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4871
BENJAMIN NELSON HOLMES,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Senior District Judge.
(CR-01-121)
Argued: May 7, 2004
Decided: July 21, 2004
Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Wilkinson and Judge Shedd joined.
COUNSEL
ARGUED: Joshua Snow Kendrick, DEBRA CHAPMAN, P.A.,
Columbia, South Carolina, for Appellant. Thomas Ernest Booth,
Criminal Division, Appellate Section, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
Debra Y. Chapman, Columbia, South Carolina, for Appellant. J.
Strom Thurmond, Jr., United States Attorney, Columbia, South Caro-
lina, Alfred W. Bethea, Jr., Assistant United States Attorney, Flor-
ence, South Carolina, for Appellee.
2 UNITED STATES v. HOLMES
OPINION
LUTTIG, Circuit Judge:
Appellant, Benjamin Holmes, was convicted by a jury on two fel-
ony counts of being a felon in possession of a weapon, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e). The evidence at trial demon-
strated that Holmes, who had prior felony convictions, unlawfully
possessed a firearm on two separate dates in 2000. Holmes’ primary
claim on appeal is that the district court erred in concluding that,
under Michigan v. Long, 463 U.S. 1032 (1983), the January 2000 pro-
tective search of his vehicle for weapons was reasonable under the
Fourth Amendment and, as a consequence, in denying his motion to
suppress the pistol and corresponding ammunition that the search
uncovered. We affirm.
I.
A.
In the late 1990s, South Carolina Law Enforcement Division
("SLED") agents were investigating a series of armed robberies of
drug dealers in the state. Informants had provided SLED agents with
the aliases for at least three of the suspected robbers: "Six," "Troop,"
and "Turbo," and warrants were issued for their arrest. SLED had cor-
rectly identified Leroy Blanding as "Turbo" and Terry Pressly as
"Troop," but incorrectly believed that Calvin Pearson was "Six." In
reality, Pearson went by the name of "Slim"; "Six" was actually the
appellant, Holmes. Consistent with this mistaken identification, the
warrant for Pearson’s arrest listed crimes that Holmes, the real "Six,"
was believed to have committed. Based on their past activities, "Six,"
"Troop," and "Turbo" were "definitely considered to be armed and
dangerous." J.A. 91.
Because of the risk that the men could present to officers who were
unaware of their backgrounds, in late 1999 or early 2000 SLED
agents put together a packet on the men for distribution to local police
departments to inform local officers that these men were armed and
possibly dangerous and to aid in their identification. The packet
UNITED STATES v. HOLMES 3
focused on the three men for whom SLED believed they knew real
identities ("Six," "Troop," and "Turbo"), but also advised that there
were others in their gang whom the informants could not identify. The
packet included outstanding warrants, criminal histories, street names,
and pictures, of all three men, and cautioned that when approached,
the men might be armed and dangerous. Holmes was not named in the
packet.
In addition to distributing the packet, SLED agents also discussed
the robberies, in person, with local departments, including the Myrtle
Beach police department. During these discussions, SLED agents not
only verbally related the information already in the packet, but also
related the additional facts that the men were known to travel in a
green Lincoln Navigator and, when in Myrtle Beach, were known to
associate with Timothy Gadsen — a local drug dealer who "liked to
carry guns [and was] known to be bad." J.A. 56.
B.
The first of Holmes’ two felon-in-possession convictions stemmed
from the events of January 21, 2000. On that date, a confidential
informant told Myrtle Beach police that "Six," "Troop," and "Gadsen"
had arrived at a local apartment complex in a dark-green Navigator.
Officer Starr of the Myrtle Beach police had received reliable infor-
mation from this informant in the past, and SLED Agent Knowles
also credited the informant’s tip because of the connection between
Gadsen and the gang.
Local and state officers in the area conferred and decided to set up
surveillance of the apartment, which soon corroborated the Naviga-
tor’s presence. The officers wanted to try to execute the arrest war-
rants for Pearson and Pressly (i.e., "Six" and "Troop," respectively)
but, believing that an arrest at the apartment complex would be too
dangerous, decided to stop them in the Navigator once the men chose
to leave. Hours later (around 10:00 p.m.), officers finally observed
two men (later discovered to be Holmes and Nathan Singleton) take
off in the Navigator. But because it was "pretty dark" outside, the
officers could not make out individual faces. J.A. 87. The darkness
also prevented the officers from seeing that a third person, Gadsen,
had also left in the Navigator. Officers followed the car to the Jet Age
4 UNITED STATES v. HOLMES
Café, a local nightclub, where the two men briefly went inside. Again,
the officers did not see Gadsen exit the Navigator.
Holmes and Singleton eventually left the caf), leaving (unbe-
knownst to the officers) Gadsen behind, and drove away in the Navi-
gator. Five or six police cruisers followed and, shortly thereafter,
stopped the SUV. When confronting the SUV and its occupants, the
officers used "felony stop" tactics, which are designed to protect the
officers and the public in situations where officers believe that a vehi-
cle’s passengers may be armed and dangerous. Following these tac-
tics, Corporal Hull first ordered the vehicle’s occupants to throw the
car keys out the window and to exit the vehicle through the driver’s
side doors. After Holmes and Singleton stepped out, Hull then
directed them to back away, one after the other, from the vehicle with
their hands above their heads. Eventually, the two men were hand-
cuffed behind their backs, frisked, and secured in caged, locked patrol
cars, at least twenty feet away from the Navigator.
As soon as the suspects were secured, officers approached the Nav-
igator to determine whether there were any weapons or other persons
hidden inside. Officer Starr conducted a protective search of the Navi-
gator’s passenger compartment, during which he found a "rare" 9mm
Daewoo pistol in the center console and corresponding ammunition
in the glove compartment, both of which he seized. The search was
completed no more than two minutes after the suspects were placed
in the cruiser.
After discovering this evidence, the officers obtained the suspects’
identification, which they then checked through the National Crime
Information Center ("NCIC"). It is unclear how long the identification
process took in this case, but testimony at the suppression hearing
established that such searches normally take 5-15 minutes to com-
plete. Eventually, the officers concluded that neither Pearson nor
Pressly was among the suspects in custody, whom the officers con-
firmed were actually Holmes and Singleton.
The NCIC check failed to turn up any outstanding arrest warrants
for either man, but did indicate that Holmes was a prior felon. While
Singleton was released, the officers arrested Holmes for unlawfully
possessing the Daewoo.
UNITED STATES v. HOLMES 5
The second of Holmes’ convictions was based on the events of July
10, 2001, after an officer noticed Holmes sitting in his Navigator in
front of a convenience store, and attempted to arrest him. After a short
chase, Holmes abandoned the Navigator and fled on foot. The Navi-
gator was impounded and, days later during an inventory search of the
vehicle, police found a stolen Keltec 9mm pistol under the driver’s
seat.
C.
Prior to trial, Holmes moved to suppress the evidence seized during
the January 2000 encounter as the product of an illegal search. The
district court held a hearing on the motion in which it heard extensive
testimony from several of the officers involved in that encounter, but
ultimately denied the motion. The case then went to trial, where the
jury convicted Holmes on both counts. As a career offender with at
least three convictions for violent felonies or serious drug offenses,
Holmes was sentenced to 260 months in prison.
II.
In reviewing Holmes’ challenge to the district court’s denial of his
motion to suppress, we "review[ ] questions of law de novo and find-
ings of [historical] fact and reasonable inferences drawn from those
findings for clear error." United States v. Hill, 322 F.3d 301, 304 (4th
Cir. 2003) (citation omitted). Absent clear error, and to the extent
consistent with the district court’s findings and credibility determina-
tions, we construe the evidence adduced at the suppression hearing in
the light most favorable to the government. See United States v. Per-
kins, 363 F.3d 317, 320 (4th Cir. 2004). As explained below, the dis-
trict court did not err in denying the motion to suppress.1
1
Holmes also claims that the district court improperly admitted evi-
dence of prior bad acts for which he had not been charged, in contraven-
tion of Federal Rule of Evidence 404(b). Over Holmes’ objection, the
district court admitted evidence that Holmes had used a Daewoo or an
unknown pistol in several past robberies, which tended to rebut Holmes’
contention that he did not knowingly possess either pistol that was found
by the police. The court appeared to conclude that this evidence was "in-
trinsic" to the charged offenses, and thus was not subject to Rule 404(b).
6 UNITED STATES v. HOLMES
A.
The primary basis for the district court’s ruling was its finding that
the officers who were present during the January 2000 protective
search of Holmes’ SUV possessed a reasonable belief that Holmes
and his passenger may have been dangerous and could have "gained
immediate control of the weapons" inside the Navigator, within the
intendment of Michigan v. Long, 463 U.S. 1032 (1983). See id. at
1049. The court supported that conclusion with specific findings
regarding the facts that "one of the officers who stopped [Holmes]
and his vehicle and subsequently" searched it "would believe existed
at the time and place in question." J.A. 112.
Those findings, and where specific findings are lacking, the rele-
vant testimony from the suppression hearing, show the following.
Based on the tip from the confidential informant, the officers reason-
ably believed that "Six" was in the Navigator when it was stopped
that night. But because of the erroneous information in the SLED
report and warrants, the officers on the scene incorrectly thought that
"Six" was Pearson, not Holmes, and thus reasonably believed that
Pearson was in the Navigator. Despite this "obvious" case of "mis-
taken identity," the officers were well aware of Pearson’s (in reality
Holmes’) outstanding warrants for armed robbery, malicious injury,
and first degree burglary. J.A. 112. Moreover, the officers did not
merely know of the "specifics" of the crimes for which Pearson’s
arrest was sought, but also knew from their talks with SLED agents
that "Six" was a known member of a gang that robbed drug dealers
— persons who, the court explicitly noted, often handle large amounts
of money and are themselves armed and dangerous — at gunpoint,
and that the gang members were using drugs themselves. The officers
also were aware that the gang’s robberies included home invasions in
which the men would often beat, and on multiple occasions even
shoot at, their victims. And the officers knew that the gang had been
involved in "other crimes of violence" as well. J.A. 113.
We have considered Holmes’ contention, but conclude that the district
court did not commit reversible error. See United States v. Chin, 83 F.3d
83, 87 (4th Cir. 1996); United States v. Rock, 282 F.3d 548, 551 (8th Cir.
2002).
UNITED STATES v. HOLMES 7
Given the facts of which the officers were aware, the district court
concluded that the officers "should have believed that there was
someone in that vehicle who was armed and dangerous, someone who
likely had weapons and likely would use those weapons in a violent
way if they were confronted." J.A. 113. Moreover, the officers rea-
sonably believed that search of the Navigator was necessary to pre-
vent the detainees — or any other persons hidden in the Navigator —
from gaining control of a weapon in the SUV’s passenger compart-
ment. While recognizing the suspects’ conditions of confinement at
the time of the search, the district court noted that Singleton was not
arrested, and had the Navigator not been searched when it was, he
could have retrieved a weapon from within after he was released.
Accordingly, the court concluded that, "under the facts found to exist
in this case," the protective search of the Navigator was permissible.
J.A. 112-16.
B.
While it is often stated that warrantless searches are presumptively
unreasonable under the Fourth Amendment, the Supreme Court has
delineated several well-established exceptions to that principle.
Among the most important of these exceptions, at least from the per-
spective of law-enforcement-officer safety, is the "stop and frisk"
doctrine first enunciated by the Supreme Court in Terry v. Ohio, 392
U.S. 1 (1968). There, the Court "held that a police officer needs nei-
ther probable cause nor a warrant to conduct a brief investigatory stop
of an individual if he has a reasonable suspicion that ‘criminal activity
may be afoot.’" United States v. Brown, 334 F.3d 1161, 1164 (D.C.
Cir. 2003) (quoting Terry, 392 U.S. at 30). Moreover, if the officer
has a "reasonable fear for his own and others’ safety" based on an
articulable suspicion that the suspect may be "armed and presently
dangerous," the officer may conduct a protective search of, i.e., frisk,
the outer layers of the suspect’s clothing for weapons. Terry, 392 U.S.
at 30-31.
In several cases that find particular relevance here, the Court has
built upon Terry’s principles, extending them to protective searches
in other contexts, in light of "the paramount interest in officer safety
and the extraordinary risks to which law enforcement officials are
exposed during [investigatory, or Terry,] detentions." United States v.
8 UNITED STATES v. HOLMES
Stanfield, 109 F.3d 976, 979-80 (4th Cir. 1997) (tracing the develop-
ment of the Supreme Court’s protective search cases).
In 1969, the Court — "relying explicitly on Terry" and "expressly
recogniz[ing] that suspects may injure police officers and others by
virtue of their access to weapons, even though they might not them-
selves be armed," Long, 463 U.S. at 1048, held in Chimel v. Califor-
nia, 395 U.S. 752, that the reasonable scope of a search incident to
a lawful arrest extends beyond the arrestee’s person to include "the
area ‘within his immediate control’ — construing that phrase to mean
the area from within which he might gain possession of a weapon or
destructible evidence." Id. at 763.
Little more than a decade later in New York v. Belton, 453 U.S. 454
(1981), however, the Court felt compelled to address the difficulties
inherent in applying Chimel when vehicles are involved, noting that
lower courts "ha[d] found no workable definition of ‘the area within
the immediate control of the arrestee’ when that area arguably
includes the interior of an automobile and the arrestee is its recent
occupant." Id. at 460. Accordingly, Belton held that "when a police-
man has made a lawful custodial arrest of the occupant of an automo-
bile, he may, as a contemporaneous incident of that arrest, search the
passenger compartment of that automobile." Id. (citations omitted).
Some lower courts had interpreted Belton to require that the
arrestee have been inside the vehicle at the beginning of his encounter
with law enforcement. The Court, however, recently held that it is
immaterial under Belton whether the arrestee "was inside or outside
the car at the moment that the officer first initiated contact with him";
Belton allows for area searches incident to the lawful arrest of a vehi-
cle’s "occupants" and "recent occupants" alike. Thornton v. United
States, 124 S. Ct. 2127, 2131-32 (2004), aff’g 325 F.3d 189 (4th Cir.
2003).
And in Michigan v. Long, 463 U.S. 1032 (1983) — the case most
directly relevant to the issue before us today — the Court, two years
after Belton, applied Terry’s principles, in light of Chimel and Belton,
to address the special "hazards involved in a roadside encounter with
a suspect" who the officer has reason to believe may be armed and
dangerous. See United States v. Baker, 78 F.3d 135, 137 (4th Cir.
UNITED STATES v. HOLMES 9
1996) (quoting Long, 463 U.S. at 1049). The Long Court concluded
that "Terry need not be read as restricting the preventative search to
the person of the detained suspect," and it extended such searches to
the area within which a suspect "would generally have immediate
control, and that could contain a weapon." Long, 463 U.S. at 1047,
1049-50 (emphases added). More specifically, the Court held that a
police officer may conduct a protective search of the passenger com-
partment of a lawfully stopped automobile where the "officer pos-
sesses 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 [a] suspect is danger-
ous and the suspect may gain immediate control of weapons" within
the vehicle. Id. at 1049-50 (quoting Terry, 392 U.S. at 21) (emphasis
added).
In so holding, the Long Court rejected the argument that an officer
has no reasonable basis for believing that a suspect may gain control
of a weapon in his vehicle when the suspect is outside of the vehicle
and under an officer’s "brief control." The Court reasoned that the
suspect (1) could "break away" from the officer and reenter the car,
(2) could be allowed to reenter the car before the Terry stop ended,
or (3) if not arrested, could lawfully reenter his car at the conclusion
of the stop and gain access to any weapons inside while the police are
still nearby. See id. at 1051-52.
C.
As an initial matter, we note that Holmes does not seriously dispute
the constitutionality of the investigatory stop of his vehicle, the proce-
dures used to determine his identity, or the use of felony stop proce-
dures in forcing him from the vehicle. Nor could he.2 And though
2
As to the first two issues, the officers had more than sufficient reason
to think that Pressly and Pearson had arrived at the apartment in a SUV
fitting the description of that in which the gang was known to travel.
Indeed, Holmes was driving that same SUV when he was stopped by the
police. In light of those and other facts, the police were well within their
rights in executing a Terry stop of the Navigator to explore their suspi-
cion that one of the SUV’s occupants might be Pearson or Pressly, in
detaining Holmes and Singleton for time reasonably sufficient to deter-
10 UNITED STATES v. HOLMES
Holmes tries to undercut the factual support for the district court’s
decision, his attempt is ultimately without merit. Our review of the
record reveals ample support for the district court’s findings of fact.3
mine whether that initial suspicion was in fact correct and, if so, to exe-
cute the warrants for those individuals’ arrest. See United States v.
Hensley, 469 U.S. 221, 229 (1985) ("[I]f police have a reasonable suspi-
cion, grounded in specific and articulable facts, that a person they
encounter was involved in or is wanted in connection with a completed
felony, then a Terry stop may be made to investigate that suspicion.");
id. at 235 (Officers stopping "suspects who are reported to be armed and
dangerous" are "authorized to take such steps as [are] reasonably neces-
sary to protect their personal safety . . . during the course of the stop.").
In addition, it was reasonable under these circumstances to use "felony
stop" procedures to subdue the Navigator’s occupants. See United States
v. Navarrete-Barron, 192 F.3d 786, 791 (8th Cir. 1999) (holding that
when officers reasonably suspected that a truck’s occupants "had been or
were engaged in drug trafficking," that the officers approached the truck
with guns drawn for their protection did not constitute an unreasonable
use of force such as would convert the Terry stop into an arrest).
3
In particular, Holmes claims that the record does not support the dis-
trict court’s finding that the officers still reasonably believed that the
Navigator contained the men whom the officers sought to arrest by the
time the protective search commenced. While Holmes grudgingly con-
cedes that "the original information received by law enforcement may
have given law enforcement a reasonable belief they were stopping a
dangerous subject," he contends that any such suspicion ended once the
men exited the vehicle and turned around to face Agent Knowles.
According to Holmes, "Knowles testified that, at that time, ‘[Knowles]
knew immediately that the suspects were not the dangerous suspects law
enforcement was seeking.’" Br. of Appellant at 8-9. Apparently relying
on the "collective knowledge" doctrine, Holmes asserts that Knowles’
knowledge is imputable to the other officers so that "law enforcement"
cannot be said to have had sufficient basis to search the Navigator under
Long when the search occurred. See Br. of Appellant at 8-9, 11-12 (citing
United States v. Rosario, 543 F.2d 6, 8 (2d Cir. 1976).
This claim is flawed for several reasons. Contrary to Holmes’ asser-
tions, Knowles actually testified that, when the suspects turned around to
face him, he knew that "one of our main suspects, a guy by the name of
Troop or Pressly, was not located in that vehicle." J.A. 48 (emphasis
UNITED STATES v. HOLMES 11
Holmes’ more substantial challenge to the denial of his motion to
suppress is directed against the district court’s legal conclusions. Spe-
cifically, Holmes contends that, notwithstanding the court’s findings,
the district court erred in concluding that, at the time the Navigator’s
passenger compartment was searched for weapons, and given the cir-
cumstances of the case, the officers had reasonable suspicion that he
and Singleton were dangerous and could gain immediate control of a
weapon therein, as is required by Long. We evaluate each portion of
this claim in turn.
We begin by assessing whether the officers’ belief that Holmes and
Singleton ("the suspects") were dangerous was reasonable. We have
no doubt that it was. As the district court explained, the officers had
substantial reason to believe that one of the two occupants of the Nav-
igator was "Six," a member of a gang whose members had carried out
numerous violent felonies while armed, several of which were the
subject of the arrest warrants that justified the Terry stop of the Navi-
gator. See, e.g., State v. Kyles, 607 A.2d 355, 364-65 (Conn. 1992)
(holding that officers had reasonable suspicion under Terry and Long
added). Knowles later testified that he did not see Gadsen among the
men, either. But Knowles said nothing about whether either of the two
detainees were "Six" or any other person in, or associated with, the gang.
Moreover, whether an officer had reasonable suspicion under Long is an
objective inquiry, tested "in light of the facts and circumstances confront-
ing him at the time." Maryland v. Macon, 472 U.S. 463, 470-71 (1985).
Here, however, there is no evidence that Knowles communicated his dis-
covery to the officers who remained on the scene after he left to look for
"Troop." His discovery therefore did little to detract from the remaining
officers’ reasonable belief that Pearson was among the Navigator’s
occupants.
And even if Knowles’ discovery that "Troop" and Gadsen were not in
the Navigator were imputed to all the officers on the scene, it would not
defeat the case for their reasonable suspicion under Long. In particular,
while the informant told the officers that he saw "Six," "Gadsen," and
"Troop" arrive at the apartment in the Navigator, it is unclear how many
other men were already there. Arguably, when only two men got out at
the "felony stop," the realization that "Troop" or Gadsen was not among
those men would not have precluded the officers from reasonably believ-
ing that Pearson, a/k/a "Six," still was.
12 UNITED STATES v. HOLMES
that at least one of four occupants of a car might have been armed and
dangerous, where occupants were reasonably suspected of being
involved in a recent robbery in which the robber had displayed a
handgun). Admittedly, that suspicion of danger dissipated after the
officers discovered that the two suspects were Holmes and Singleton,
not Pearson (although had the officers known that "Six" was actually
Holmes, their suspicions would have remained justified). But by that
point the search had already been completed, and was not retroac-
tively invalidated by the officers’ subsequent discovery. See Illinois
v. Wardlow, 528 U.S. 119, 126 (2000) ("In allowing [investigatory]
detentions, Terry accepts the risk that officers may stop innocent peo-
ple.").
It was likewise reasonable for the officers to believe that the Navi-
gator’s passenger compartment might contain weapons. The gang was
known to be armed and, as the district court correctly found, the rea-
sonable belief that "Six" (and, for that matter, "Troop" or Gadsen)
was in the Navigator supports a reasonable belief that there was a
weapon inside the Navigator as well.
Nevertheless, Holmes asserts that the officers lacked reasonable
suspicion that he and Singleton may have been dangerous because,
when the officers stopped them, Holmes and Singleton were not sus-
pected of committing a crime, and thereafter fully cooperated with
police orders. While these facts are certainly relevant to the overall
Long inquiry, we do not believe that they rebut the district court’s
ultimate conclusion in this case.4
Quite simply, reasonable suspicion of a suspect’s dangerousness
need not be based solely on activities observed by the police during
or just before the relevant police encounter, but can be based on the
suspect’s commission of violent crimes in the past — especially when
those crimes indicate a high likelihood that the suspect will be "armed
and dangerous" when encountered in the future. See, e.g., Hensley,
4
Cf. United States v. Holifield, 956 F.2d 665, 668 (7th Cir. 1992)
("[T]he absence of weapons on the persons [of defendant and his passen-
gers], and the fact that there was no further aggressive behavior" after the
initial traffic stop "did not, as a matter of law, make continuing appre-
hension of danger unreasonable.").
UNITED STATES v. HOLMES 13
469 U.S. at 235; supra at 15 n.2. And, of course, a suspect’s coopera-
tion with police officers during a Terry stop does not, by itself, extin-
guish concerns that police may harbor about that suspect’s
dangerousness. The facts of this case are telling in this respect: given
the number of police on the scene and the tactics the officers used,
that Holmes and Pearson cooperated with the police is entirely unsur-
prising. However, a reasonable officer in this situation — knowledge-
able of the suspects’ criminal history and that the gang to which the
suspects belonged was known to be armed — would be aware of the
risk that absent a protective search of the SUV, the suspects might,
as the stop proceeded, seek to take advantage of a gap in the officers’
vigilance. Moreover, as Long provided, a reasonable officer would
also be concerned about the ever-present possibility of violent interac-
tion when the suspects were released at the conclusion of the investi-
gatory stop. See J.A. 70 (testimony of Officer Starr that the officers
did not know at the time of the search whether the suspects would
eventually be allowed to return to their vehicle, and to any weapons
therein). Indeed, it would be affirmatively unreasonable to think that
these individuals were less dangerous than the knife-wielding mari-
juana user in Long itself.
D.
We turn now to Holmes’ more substantial contention: whether the
officers had a reasonable belief that either suspect "[might] gain
immediate control of weapons" within the Navigator given that, at the
time of the search, Holmes and Singleton were handcuffed in the back
of a locked police cruiser, with several armed officers between them
and the Navigator. Holmes essentially contends that, even assuming
that the officers reasonably believed in the potential dangerousness of
the suspects and in the likelihood of a weapon being present in the
vehicle, it nevertheless was inconceivable that the suspects could have
slipped their restraints and escaped from the locked squad car. No
more conceivable, is it, he contends, that, given the substantial police
presence, the suspects could have traversed the twenty or more feet
to the Navigator to retrieve any weapon inside without being captured
or killed.5
5
This claim is supported by the testimony of several officers on the
scene. See, e.g., J.A. 69 (agreeing on cross examination that "there’s no
14 UNITED STATES v. HOLMES
These facts, Holmes claims, make it unreasonable to believe that
he could have "gained immediate control of weapons" inside the Nav-
igator. Long, 463 U.S. at 1049. And while Long denied that an offi-
cer’s "brief control of a Terry suspect in Long’s position" precluded
a conclusion that the suspect may gain immediate access to weapons
in his vehicle, id. at 1051 (second emphasis added), any belief that
Holmes could have realistically done so in this case was plainly
unreasonable. As such, Holmes argues, not only did the Long rule not
apply by its literal terms when Holmes’ Navigator was searched, but
one of that rule’s core justifications was entirely absent.
The premise of this argument may have merit: if there is no reason-
able possibility that a suspect will gain access to the interior of his car
during the period of the seizure or shortly thereafter, i.e., the time
when he would pose a threat to the safety of law enforcement officers
or others, it may be that Long would not permit the officers to conduct
a protective search of the car.6 However, we need not decide whether
way [the suspects in the cruiser] had access to that green Navigator" at
the time of the search); J.A. 82 (agreeing on cross examination that, once
the area was "secured" prior to the search, "that meant neither one of [the
suspects] was going to have access to that Navigator"); cf. Thornton, 124
S. Ct. at 2134 (Scalia, J., concurring in judgment) (rejecting govern-
ment’s argument that, "despite being handcuffed and secured in the back
of a squad car, petitioner might have escaped and retrieved a weapon or
evidence from his vehicle—a theory that calls to mind Judge Goldberg’s
reference to the mythical arrestee ‘possessed of the skill of Houdini and
the strength of Hercules’") (citing United States v. Frick, 490 F.2d 666,
673 (5th Cir. 1973) (opinion concurring in part and dissenting in part)).
6
Long did not clearly hold that the degree of the officers’ control over
the suspect during a protective search of a vehicle is irrelevant to the rea-
sonableness of the officer’s decision to conduct a Terry search. See, e.g.,
4 Wayne R. LaFave, Search & Seizure § 9.5(e), at 290-91 (3d ed. 1996)
(explaining that it is "unclear" whether Long’s holding "encompass[es]
a reasonable judgment about the suspect’s ability in the particular cir-
cumstances to get into the car" or "creates a ‘bright line’" rule). We have
never so held in a published opinion. And although many courts appear
to treat Long as a bright-line rule — implicitly, if not explicitly — courts
are not universal in this belief. See 4 LaFave, supra, § 9.5(e), at 290
n.227, 229 (quoting Hoag v. State, 728 S.W.2d 375 (Tex. Crim. App.
1987), which held that there was "no basis to look in car under Long
where defendant ‘surrounded by police officers with drawn weapons’ at
rear of car").
UNITED STATES v. HOLMES 15
the Court’s decision in Long included this caveat because, under the
facts of this case, we conclude that it was well within the range of rea-
son to believe that, after their release at the conclusion of the stop, the
suspects would have access to the interior of their car. We are also
confident that it was reasonable to think that the suspects’ access, in
combination with their inherent dangerousness, would place the offi-
cers conducting the stop in jeopardy. Thus, regardless of the extent to
which the suspects were incapacitated at the time of the search, the
search of the car was a reasonable measure to protect the safety of the
officers conducting the stop, and, therefore, was permissible under
Long.
In fact, the Long Court justified the search in that case, in part, on
just this basis. Notwithstanding the defendant’s contention that he was
effectively under police control at the time his car was searched, the
Long Court explained that the search was permissible under the
Fourth Amendment because, "[i]n addition [to the possibility of a
suspect’s escape from the ‘brief control of a police officer’] . . . he
will be permitted to reenter his automobile, and he will then have
access to any weapons inside." Long, 463 U.S. at 1051-52. (citations
omitted) (emphases added). The natural reading of this explanation is
that the possibility of the suspect’s return to his vehicle at the conclu-
sion of the Terry stop was an independent reason why the protective
search in Long was reasonable, and thus this possibility is sufficient
even if the suspect could not reasonably reach the automobile during
the search itself.7
7
In fact, that reading seems to be the only way that Long can be
squared with the Court’s decision to offer this "addition[al]" justification.
The two other justifications the Court provided for the reasonableness of
the police officer’s search in that case — the possibilities that, before the
"Terry investigation is over," the suspect may be allowed to reenter the
vehicle or may escape from police control — were based on a temporary
detainee’s ability to return to his vehicle, whether by leave or by force,
during the Terry stop. 463 U.S. at 1051-52. For it to be relevant at all
under Long’s rule that a suspect might also return to his vehicle after the
conclusion of a lawful Terry stop, it must be the case that whether "the
suspect may gain immediate control of weapons" in that vehicle is not
determined by the likelihood that the suspect might actually gain access
to the weapon during the seizure itself, i.e., when the protective search
actually occurs.
16 UNITED STATES v. HOLMES
The sufficiency of this independent justification forecloses
Holmes’ contention that Long requires a reasonable belief that the
suspect may "gain immediate control of weapons" at the time of the
search. Id. at 1049. The "immediate control" language of Long refers
not to whether the searched area is within the control of the detainee
at the time of the search, but rather to the permissible scope of the
"area search" authorized in Long — i.e., those portions of the vehi-
cle’s passenger compartment "where weapons could be placed or hid-
den." 463 U.S. at 1049. That this is so flows inescapably from the
Supreme Court’s conclusion that, even though the defendant in Long
was temporarily under police control at the time of the search, the
protective search was reasonable because of the possibility that the
suspect would return to his vehicle and, at that time, gain control over
any weapons inside.
Accordingly, we hold that where a suspect is an occupant or recent
occupant of a vehicle at the initiation of a Terry stop, and where the
police reasonably believe the suspect may be dangerous and that there
may be readily-accessible weapons in his vehicle, Long authorizes a
protective search of the vehicle for weapons, provided the police har-
bor a reasonable belief that the suspect may gain access to the vehicle
at a time when that access would endanger the safety of the officers
conducting the stop or of others nearby — including the reasonable
belief that the suspect will return to the vehicle following the conclu-
sion of the Terry stop. Under Long, therefore, the protective search
of Holmes’ Navigator permissibly encompassed the entire passenger
compartment of that vehicle where weapons could be found, includ-
ing, of course, "containers" like the center console and glove compart-
ment. See United States v. Milton, 52 F.3d 78, 80 (4th Cir. 1995).
E.
Holmes’ final contention is that the officers acted unconstitution-
ally in not choosing the "more reasonable" alternative of checking the
detainees’ identification to see whether or not one of them was Pear-
son or Pressly before proceeding to search the Navigator. We dis-
agree. The officers’ unrebutted testimony demonstrates that, in
addition to their reasonable fear that other persons might be hidden
inside the SUV, the officers were also concerned — and reasonably
so — that the suspects might have access to guns located therein
UNITED STATES v. HOLMES 17
when the Terry stop was over. See J.A. 69-70. In response to such
reasonable fears during roadside encounters with dangerous suspects,
we do "not require[ ] that officers adopt alternate means to ensure
their safety in order to avoid the intrusion involved in a Terry encoun-
ter," Long, 463 U.S. at 1051, and, where certain law enforcement tac-
tics are themselves legitimate under the circumstances, we "hesitate
to impose [reasonable alternatives] on the law enforcement commu-
nity as a matter of constitutional law," see Stanfield, 109 F.3d at 983.
The availability of a less intrusive alternative does not render unrea-
sonable the officers’ otherwise reasonable decision to search the sus-
pects’ automobile. As we have explained above, the measures taken
by the officers were necessary to satisfy their reasonable fear that
other dangerous persons might be hidden within the SUV8 and, even
8
The record evidence demonstrates that this fear of the officers was
justified. In addition to the substantial possibility in this case that there
was another armed individual in the Navigator when it was stopped, tes-
timony at the sentencing hearing established that the officers’ view into
the Navigator was significantly impaired by the Navigator’s windows,
which although "factory-tinted," were nonetheless "very dark" — "espe-
cially the back three windows." J.A. 104-05. Holmes has provided us
with no reason to discount this assessment, particularly when it accords
with the description given by the vehicle’s manufacturer itself. See Lin-
coln.com, at http://www.lincoln.com/vehicles/interior.asp?sVehi=nav
(last visited June 23, 2004) (explaining under "Solar-tinted windows" tab
that so-called "privacy glass" on the "the rear doors, rear quarter and lift-
gate windows," of the Navigator "offers added privacy for rear passen-
gers while making stored items less visible from outside the vehicle.")
(emphasis added); Navigator Specifications, 2-3, at http://
www.lincoln.com/vehicles/interior.asp?sVehi=nav/nav_specs.pdf (last
modified Nov. 10, 2003) (describing "privacy glass" as a "standard
equipment" with which "all models of the Lincoln Navigator are
equipped"). While the district court did not make specific findings in this
respect, the court requested testimony on the condition of the Navigator’s
windows and expressed its concerns about the reasonable "fear" that the
obscuring effect of the SUV’s tinted windows could have created in
these officers. See J.A. 100; cf. Stanfield, 109 F.3d at 981 ("Indeed, we
can conceive of almost nothing more dangerous to a law enforcement
officer in the context of a traffic stop than approaching an automobile
whose passenger compartment is entirely hidden from the officer’s view
by darkly tinted windows. . . . [H]e does not know whether he is about
18 UNITED STATES v. HOLMES
more importantly, to remove any weapons within the Navigator that,
if the stop did not result in both suspects’ arrests, would be in the
immediate control of one or both of the suspects upon their return to
the vehicle. The Fourth Amendment does not compel the officers to
complete the not-insubstantial process of formally verifying the
detainees’ identifications before undertaking these preventive steps.
See United States v. Johnson, 114 F.3d 435, 440 (4th Cir. 1997)
(explaining that "the determinative issue" for deciding the constitu-
tionality of an (otherwise lawful) delayed search is "whether the time
and distance between elimination of the danger and performance of
the search is unreasonable"); cf. Long, 463 U.S. at 1052 (explaining
that officers acted reasonably "in taking preventive measures to
ensure that there were no other weapons within Long’s immediate
grasp before permitting him to reenter the automobile").
CONCLUSION
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
to encounter a single law-abiding citizen or to be ambushed by a car-full
of armed assailants.") (emphasis in original).
Although Holmes contends that we should discount one of the testify-
ing officers’ assessment of the Navigator’s windows because he only saw
the vehicle at night, that night just happened to be the very one in which
the Navigator was first searched. And that the officers could observe the
"silhouettes" of two individuals (i.e, Holmes and Pearson) in the SUV,
J.A. 65, does not, of course, mean that all of the SUV’s occupants must
have been in a position where their forms could be discerned by the offi-
cers.