United States v. Pugh ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40678
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY EARL PUGH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:99-CR-158-ALL)
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March 5, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jeffrey Earl Pugh argues that the district
court erred in denying his motion to suppress evidence seized from
his person following a traffic stop of a vehicle in which he was a
passenger. Pugh argues that the pat-down search of his person for
weapons was not based on a reasonable suspicion and that the
officer engaged in prolonged and repeated searches prior to finding
crack cocaine in his trousers. He insists that the search went
beyond the scope of an investigative stop authorized by Terry v.
Ohio, 392 U.S. 1 (1968).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Viewing the evidence in the light most favorable to the
government, Pugh’s furtive movements while seated in a car that was
being stopped late at night in a high crime area, considered in
conjunction with Pugh’s recent arrest by the same officers for drug
trafficking, constituted articulable facts that were sufficient to
support a reasonable suspicion that the officers’ safety was
endangered. See United States v. Rideau, 969 F.2d 1572, 1575 (5th
Cir. 1992) (en banc); United States v. Garza, 921 F.2d 59, 59-60
(5th Cir. 1991).
If a weapons search is lawfully made pursuant to Terry,
officers may seize nonthreatening contraband detected during the
protective pat-down if the officer is able to ascertain the
identity of the contraband when he initially touches the object.
See Minnesota v. Dickerson, 508 U.S. 366, 373, 375-76 (1993).
The evidence presented by the government reflected that while
conducting the pat-down search of Pugh’s clothing, the officer
touched an obvious bulge in the back of Pugh’s trousers; and, based
on the officer’s experience, he immediately knew that the object
was a lump of crack cocaine. At that point, the officer had
probable cause to believe that Pugh was in possession of
contraband, so he was entitled to make an arrest and seize it. See
United States v. Cooper, 43 F.3d 140, 148 (5th Cir. 1995).
In addition, the search was valid as an incident to Pugh’s
lawful arrest for resisting the search in violation of Texas law.
See Texas Penal Code Ann. § 38.03 (West Supp. 2001); United States
v. Hernandez, 825 F.2d 846, 852 (5th Cir. 1987).
2
The district court did not err in denying the motion to
suppress.
AFFIRMED.
3