United States v. Baker ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-40576
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNALDO BAKER,
Defendant-Appellant.
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Appeal from the United States District Court for the
Eastern District of Texas
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(March 1, 1995)
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Arnaldo Baker (Baker) appeals the district
court's denial of his motion to suppress evidence seized from his
vehicle. We affirm.
Facts and Proceedings Below
On the morning of July 30, 1993, Beaumont police officers
David Froman (Froman) and Gerald LaChance (LaChance) were
patrolling Interstate 10 in Beaumont, Texas. The officers
positioned their patrol car in the median between the eastbound and
westbound traffic lanes. At approximately 9:21 a.m., Froman
observed a white Dodge proceeding east on the highway and noticed
that the passenger was not wearing a seat belt as required by Texas
law. As the officers were pulling the Dodge over to investigate
the possible seat belt violation, they noticed another vehicle
approaching at a high rate of speed. At this point, LaChance
motioned to the second vehicle to pull over as well. Froman
approached the driver's side of the Dodge, and La Chance went to
speak with the driver of the second vehicle.
Froman asked Baker, the driver of the Dodge, to get out of the
car and accompany him to the patrol car. Froman observed that
Baker appeared to be extremely nervous. Baker told Froman that he
and his wife were returning to Georgia from California, that they
had left Los Angeles the previous day at 7:00 a.m., and that they
had stayed overnight at a motel on the west side of Houston.
Froman considered it unlikely that Baker could have driven such a
distance in the time he claimed. Froman then approached the
passenger side of the vehicle to obtain Baker's wife's driver's
license and to speak with her about the seat belt violation.
Froman noticed that Baker's wife also appeared to be extremely
nervous. She told Froman that she and her husband had spent two
weeks in San Antonio and were returning to Georgia. While he was
speaking to Baker's wife, Froman observed a box of .9 millimeter
bullets on the left front floorboard of the car. Froman then asked
her where the pistol was, and she replied that she did not know.
Froman interpreted her response to mean that there was a pistol in
the car.
Froman asked Baker's wife to get out of the car so he could
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search the front seat area for the pistol. At the suppression
hearing, Froman testified that he did this "in the interest of
officer safety." As Baker's wife got out of the car, Froman
noticed that she had been sitting with her feet on a package that
was on the right front floorboard of the car. When he reached down
to move the package so that he could look under the front seat, he
smelled the odor of marihuana and could see what appeared to him to
be a brick of marihuana inside the open-ended package.1 Froman
then signalled to LaChance that he had found narcotics in Baker's
vehicle. Approximately three to four minutes had then elapsed
from the time the Bakers were initially pulled over for the seat
belt violation. The Bakers were then arrested. As he was being
patted down for weapons, Baker told LaChance that there was a gun
on the back seat of the car. LaChance conducted an inventory
search of the car at the narcotics station and found a .9
millimeter pistol and a small additional amount of marihuana.
On September 16, 1993, a federal grand jury returned a three-
count indictment against Baker and his wife, charging them with
conspiracy to distribute and possess with intent to distribute
marihuana in violation of 21 U.S.C. § 846 (Count I), possession of
marihuana with intent to distribute in violation of 21 U.S.C. §
841(a)(1) (Count II), and using or carrying a firearm during a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count
III). Baker filed a motion to suppress the evidence seized from
his automobile. After the district court denied his motion to
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Subsequent laboratory analysis confirmed that this package
contained a 5.5 pound brick of marihuana.
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suppress, Baker entered a conditional guilty plea to Count III,
reserving his right to appeal the district court's denial of his
motion to suppress. On June 15, 1994, the district court sentenced
Baker to 60 months of imprisonment and 3 years of supervised
release and imposed a $50 special assessment. Baker filed a timely
notice of appeal.
Discussion
Baker contends that the district court erred in denying his
motion to suppress evidence. In reviewing a district court's
ruling on a motion to suppress, we review questions of law de novo.
United States v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984). We
consider the evidence in the light most favorable to the prevailing
party and accept the district court's factual findings unless
clearly erroneous or influenced by an incorrect view of the law.
United States v. Lanford, 838 F.2d 1351, 1354 (5th Cir. 1988).
Baker argues that the officers searched his vehicle in
violation of Terry v. Ohio, 88 S. Ct. 1868 (1968). In Terry, the
Supreme Court held that police officers may detain individuals
briefly on the street, even though there is no probable cause to
arrest them, as long as they have a reasonable suspicion that
criminal activity is afoot. Reasonable suspicion under Terry must
be based on "specific and articulable facts," and the facts must
"be judged against an objective standard." Id. at 1880. The Court
in Terry also held that a police officer who reasonably believes
that he is dealing with armed and dangerous individuals may conduct
a limited protective search for weapons. Id. at 1881. "The
officer need not be absolutely certain that the individual is
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armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
that of others was in danger." Id. at 1883.
In Michigan v. Long, 103 S. Ct. 3469 (1983), the Court applied
the principles of Terry to automobile searches. In Long, two
police officers noticed a vehicle driving erratically and at an
excessive rate of speed in a rural area late at night. After the
officers saw the car swerve into a ditch, they stopped to
investigate. Long, the driver, met the officers at the rear of the
car and "appeared to be under the influence of something." Id. at
3473-74. After the officers repeatedly asked Long for his driver's
license and registration, Long began walking toward the open door
of his vehicle. The officers followed him and observed a hunting
knife on the floorboard of the car. After seeing the knife, the
officers subjected Long to a protective pat down, which revealed no
weapons. At this point, one of the officers remained with Long at
the rear of the vehicle while the other shined his flashlight in
the car to look for other weapons. When the officer noticed
something protruding from under the armrest, he entered the vehicle
and found a pouch containing marihuana. Upholding the validity of
the search, the Court held that "the search of the passenger
compartment of an automobile, limited to those areas in which a
weapon may be placed or hidden, is permissible if the police
officer 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 and the suspect may gain
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immediate control of weapons." Id. at 3481 (quoting Terry, 88
S. Ct. at 1882). See, e.g., United States v. Coleman, 969 F.2d 126,
131 (5th Cir. 1992) (upholding protective search of passenger
compartment of vehicle on the ground that it was reasonable for the
patrol officers to be concerned for their safety); United States v.
Maestas, 941 F.2d 273, 277 (5th Cir. 1991), cert. denied, 112 S. Ct.
909 (1992) (holding that officer had reasonable suspicion to
conduct protective search of the passenger compartment of
defendant's truck).
Baker does not argue, nor could he, that the initial stop of
his vehicle for the seat belt violation was improper. This being
so, it was proper for the officers to order him out of the vehicle
and to briefly question his wife about the seat belt violation.
See Pennsylvania v. Mimms, 98 S. Ct. 330, 333 (1977) (holding that
it is constitutionally permissible for a police officer to order
the driver to get out of the vehicle when done incident to a lawful
traffic stop). Instead, Baker argues that the search of his
vehicle was unreasonable under Terry and Long because the officers
had no subjective fear that Baker possessed any weapons or was
dangerous. In support of his argument, Baker relies on the
decisions of two of our sister circuits. United States v. Lott,
870 F.2d 778, 783-84 (1st Cir. 1989) ("Although Terry and Long
speak in terms of an objective test (``reasonableness') for
determining the validity of an officer's frisk for weapons, we do
not read those cases as permitting a frisk where, although the
circumstances might pass an objective test, the officers in the
field were not actually concerned for their safety."); United
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States v. Prim, 698 F.2d 972, 975 (9th Cir. 1983) ("Although the
existence of reasonable suspicion or probable cause is judicially
viewed under an objective standard, it is a standard applied to the
actual and/or perceived belief of the law enforcement officer as he
either stops and detains or engages in search and seizure."). This
Court, however, has never held that an officer's objectively
reasonable concern for safety does not justify a protective Terry
pat down for weapons where the officer has no actual fear for his
safety. See, e.g., United States v. Michelletti, 13 F.3d 838, 842
(5th Cir. 1994) (en banc) (upholding officer's Terry frisk under an
objective reasonableness standard, notwithstanding his testimony on
cross-examination at the suppression hearing that he had no
specific reason to believe that the defendant was armed); United
States v. Tharpe, 536 F.2d 1098, 1101 (5th Cir. 1976) (en banc)
("We know of no legal requirement that a policeman must feel
``scared' by the threat of danger."). See also United States v.
Cummins, 920 F.2d 498, 502 (8th Cir. 1990), cert. denied, 112 S. Ct.
429 (1991) ("As we apply an objective standard of reasonableness to
this determination, our conclusion is not changed by [the
officer's] testimony that he had no subjective fear that either
Cummins or Akins were armed."). In Michelletti, we took note of
the officer's testimony that he had no specific reason to believe
that the defendant was armed but went on to find that several other
factors surrounding the encounter satisfied the reasonable
suspicion standard. In the instant case, there was no testimony
that Froman and LaChance did not suspect that weapons were
concealed in Baker's vehicle. In fact, Froman testified at the
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suppression hearing that he searched the car "in the interest of
officer safety." Further, the district court, in its oral ruling
on the motion to suppress, credited Froman's testimony that he
interpreted Baker's wife's comment to mean that there was a gun in
the car. We thus accept the district court's finding that the
officers searched Baker's car because they suspected that it
contained weapons.
United States v. Richards, 967 F.2d 1189, 1193 (8th Cir. 1992)
involved facts similar to those of the instant case. There, a
police officer observed the defendant, Richards, driving
erratically and pulled him over to investigate. After asking
Richards to accompany him to the patrol car, the officer noticed
that he appeared very nervous. Richards explained that he had
recently been released from prison after serving time for burglary.
Another officer approached the car to question Richards's
passenger. As he approached the passenger, the officer noticed a
box of .22 caliber shells on the console inside Richards's car.
After seeing the shells, the officer searched the passenger
compartment of the vehicle for weapons and found a small amount of
marihuana. The officers arrested both Richards and his passenger,
then searched the trunk of his car and found, inter alia,
additional amounts of marihuana and two loaded handguns.
On appeal, Richards argued that the district court should have
suppressed the evidence seized from his car because the warrantless
search was unreasonable. Upholding the validity of the search
under Michigan v. Long, the Eighth Circuit relied on Richards's
nervousness, the .22 caliber shells in the car, and Richards's
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statement that he was a recently released felon. Id. at 93. See
also United States v. Fryer, 974 F.2d 813, 819 (7th Cir. 1992),
cert. denied, 113 S. Ct. 2419 (1993) (holding that late night search
of automobile for weapons after traffic stop in marginally safe
neighborhood was reasonable based on furtive movements between the
driver and passenger); United States v. Coleman, 969 F.2d 126, 131
(5th Cir. 1992) (finding that officer's search of passenger
compartment of defendant's car for weapons was reasonable where
defendant appeared nervous, officer knew the stop was part of a
narcotics investigation, and defendant started to retrieve pouch in
his car which he claimed contained his license).
We have recognized that "[e]ach case involving the
reasonableness of a Terry stop and frisk turns on its own facts."
Michelletti, 13 F.3d at 844. Several facts in the instant case
demonstrate that the officers' search of the passenger compartment
of Baker's car was reasonable under Terry and Long. First, Froman
testified that Baker and his wife both appeared extremely nervous
and gave inconsistent explanations for their trip. Second, Froman
noticed a box of .9 millimeter bullets on the front floorboard of
Baker's car. Finally, when Froman asked Baker's wife where the gun
was, she stated that she did not know, a remark Froman interpreted
to mean that there was a gun in the car. Based on these facts
known to the officers at the time of the search, we hold that their
conduct in searching the passenger compartment of Baker's vehicle
for weapons was reasonable under the objective standard of Terry
and Long.
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Conclusion
For the foregoing reasons, Baker's conviction is
AFFIRMED.
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