U.S. v. Wangler ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-1800
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross-Appellant,
versus
LARRY DALE WANGLER,
Defendant-Appellant
Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Texas
(March 18, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
I.
Police stopped Larry Dale Wangler in his car suspecting that
he was carrying cocaine. Noticing a bulge in his front pocket, an
officer frisked him and found a .22 caliber revolver. The police
then arrested Wangler for carrying a concealed weapon and conducted
an inventory search of his car. The search uncovered a firearm
silencer, a quarter pound of cocaine, and documents evidencing drug
trafficking.
Wangler was indicted on three counts: (1) possession with
intent to distribute cocaine in violation of 21 U.S.C. § 841(a);
(2) unlawfully using and carrying a firearm during and in relation
to a drug trafficking crime contrary to 18 U.S.C. § 924(c)(1); and
(3) possession of an unregistered firearm in violation of 26 U.S.C.
§ 5861(d). Wangler moved to suppress this evidence. The district
court denied the motion after a hearing. Wangler pleaded guilty to
Count 2, reserving his right to appeal the motion to suppress. The
district court sentenced Wangler to 60 months in prison, a three-
year term of supervised release, and a mandatory assessment of
$50.00.
Wangler appeals, arguing that the evidence was seized in
violation of the Fourth Amendment and that the court lacked
authority to sentence him to a term of supervised release. We
affirm.
II.
The testimony at the hearing on the motion to suppress showed
the following. In February 1990, the Navarro County Sheriff's
Department raided a pit bulldog fight at the residence of Larry
Meador. Officers arrested 47 people. During the raid, several
people fled. The deputies found five guns and some narcotics
abandoned on the ground. Two of the guns were within 30 feet of a
Dodge Ram Charger registered to Wangler's wife.
One month after the raid, the Sheriff's Department received
information from a confidential informant that Wangler was
delivering substantial amounts of cocaine to Larry Meador in
Navarro County on a regular stop. This informant had provided
information about other criminal activities involving other
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individuals in the past, and the information was independently
verified. The Sheriff's Department had received information from
numerous sources over the last four years that Larry Meador was in
the drug business. For the next two months, the informant
continued to give information about Wangler, Meador, and others.
In the meantime, a second confidential informant began to tell
deputies about Wangler's drug activities. This informant was an
independent source, and like the first informant, had provided
reliable information in the past that lead to the arrest and
prosecution of other individuals. The second informant stated that
Wangler was making a regular stop at Meador's house, and this
informant provided information as to when Wangler was in possession
of cocaine and when he was collecting money.
On October 22, 1990, Deputy Spencer received a telephone call
from the second confidential informant and was told that Wangler
was currently in route to Larry's One-Stop, a convenience store
operated by Meador, with a load of cocaine. The informant further
stated that Wangler would be driving a 1987 Dodge pickup, Texas
313-5LL. After Spencer alerted other deputies and asked their
assistance, he drove to Larry's One-Stop.
When he arrived and parked at a nearby vacant station, he
observed Wangler pumping gas into the Dodge pickup. Moments later,
a Toyota pickup arrived. Spencer could not see who was driving the
Toyota, but he believed it to be Meador's truck, based on his
knowledge of the type of car Meador drove.1 Wangler walked up to
1
In fact, the driver was Josh Meador, Larry Meador's nephew.
3
the Toyota and spoke briefly to the driver, then walked back to his
truck and drove away.
Spencer followed in his unmarked car with other officers close
behind. Spencer believed that Wangler still had the cocaine and
hoped to follow Wangler to the drop point. The deputies saw
Wangler exit highway 31 onto I-45, then take the first exit after
traveling only about a mile and reenter I-45 in the opposite
direction. To Spencer, Wangler appeared to be making a "heat run,"
an attempt to determine whether anyone was following him. At this
point, the deputies decided to stop Wangler.
After pulling him over, Spencer asked Wangler to get out and
go to the back of the pickup. Spencer twice asked for Wangler's
consent to search his truck, and Wangler refused both requests.
Sergeant Mike Cox then walked up and observed what appeared to him
to be a bulge in Wangler's right front pants pocket. Cox asked
Spencer if he had patted Wangler down. When Spencer said he had
not, Cox patted the bulge and felt a hard object. He then reached
into Wangler's pocket and pulled out the .22 caliber revolver.
After arresting Wangler, the officers performed an inventory search
of the car and discovered, among other things, the cocaine.
III.
Wangler argues that both the stop and the frisk were illegal.
An investigatory stop is proper if based on reasonable
suspicion "that criminal activity is afoot." Terry v. Ohio, 392
U.S. 1, 30 (1968). "Reasonable suspicion" is considerably less
than that which is required to show probable cause. United States
4
v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc). To
satisfy the Fourth Amendment, there must be some "minimal level of
objective justification for the officer's actions, measured in
light of the totality of the circumstances." Id. (citing United
States v. Sokolow, 490 U.S. 1, 6-8 (1989)). Moreover, reasonable
suspicion need not be based only on personal observation. If based
on other information, the question becomes whether that information
possesses "an indicia of reliability." Adams v. Williams, 407 U.S.
143, 147 (1972).
We find that the information the deputies relied on possessed
sufficient indicia of reliability and gave them reasonable
suspicion that Wangler was carrying drugs. Authorities first
suspected Wangler was involved in drugs after the raid at Meador's
residence. Thereafter, deputies received information that Wangler
was dealing drugs from two unconnected informants and over an
extended period of time. Finally, Deputy Spencer learned from the
second informant, through the October 22 phone call, that Wangler
was going to Larry's One-Stop to deliver cocaine. This tip was
substantially corroborated by Spencer's observations. Wangler
arrived at the convenience store, in the car described, and met
with someone in a Toyota pickup Spencer believed to be owned by
Meador. Although the information was not correct in every detail,
it was reasonable for the deputies to suspect that Wangler had
cocaine in his truck after he left the store.
Once an individual is lawfully stopped, the police may conduct
a limited protective search for concealed weapons if they
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justifiably believe the individual is armed and presently
dangerous. Terry, 392 U.S. at 24; Williams, 407 U.S. at 146. The
question is whether a reasonably prudent officer could believe,
based on "specific and articulable facts," that his safety or that
of others is in danger. Terry, 392 U.S. at 27; Rideau, 969 F.2d at
1574. We have emphasized that the standard is an objective one and
"[t]he officer's state of mind, or his stated justification for his
actions, is not the focus of our inquiry." Rideau, 969 F.2d at
1574; see also Maryland v. Macon, 472 U.S. 463, 470-71 (1985);
United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en
banc). "We must attempt to put ourselves in the shoes of a
reasonable police officer as he or she approaches a given situation
and assesses the likelihood of danger in a particular context."
Rideau, 969 F.2d at 1574.
Sgt. Cox had reason to believe that Wangler was a drug dealer.
In Sgt. Cox's experience, drug dealers routinely carry weapons.
Cox also knew of the guns found near Wangler's truck at the dog
fight raid. In this context, a reasonable officer would have been
justified in believing that the bulge in Wangler's pocket could
have been a gun. Wangler argues that Cox did not in fact believe
that the bulge was a gun and therefore did not subjectively believe
that he or the other officers were in danger.2 However, as stated,
2
When asked at the suppression hearing what he thought the
bulge was, Cox answered:
I assumed -- you know, when I saw the bulge, you know, I
didn't think whether it was narcotics or what, or whether it
was -- might have been a weapon of some kind, so I patted
his pocket down -- and asked Sergeant Spencer if he had done
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the inquiry is an objective one, and a reasonable officer in Cox's
position was justified in patting down Wangler.
IV.
Wangler argues that because § 924(c)(1) does not authorize a
period of supervised release none may be imposed. We had rendered
conflicting decisions on this point. Compare United States v.
Allison, 953 F.2d 870, 875 (5th Cir. 1992) (holding that supervised
release is not allowed under § 924) with United States v. Van
Nymegen, 910 F.2d 164, 165-67 (5th Cir. 1990) (holding that
supervised release may be imposed pursuant to 18 U.S.C. § 3583
despite a lack of authorization in the statute setting forth the
offense). We have now resolved this conflict in favor of the
earlier precedent. United States v. Langston, No. 92-1528 (5th
Cir. Feb. 19, 1993) (unpublished opinion). Wangler's contention is
therefore foreclosed.
AFFIRMED.
that and when he said no, I said, well, there may be
something in his pocket and felt a very hard feeling object
which, you know, could have been narcotics or something very
soft. It was something very firm so that's why I reached in
his pocket and pulled and felt it and recognized when I saw
it to be a pistol.
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