United States v. Michael King, Jr. , 332 F. App'x 334 ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 10, 2009
Decided June 16, 2009
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08-4173
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana.
v. No. 1:07-CR-104-TS
MICHAEL A. KING, JR., Theresa L. Springmann,
Defendant-Appellant. Judge.
ORDER
Michael King, Jr. pleaded guilty to possessing a firearm as a felon. See 18 U.S.C.
§ 922(g)(1). Under the plea agreement King reserved his right to appeal the district court’s
denial of his motion to suppress the gun, which was found when the police opened his car
door during a traffic stop. The court sentenced King to 21 months’ imprisonment, and he
now appeals. Because the officers had the requisite reasonable suspicion to open the door,
we affirm the district court’s judgment.
In November 2007, officers Nicholas Lichtsinn and Chris Hoffman, assigned to the
gang unit of the Fort Wayne, Indiana police department, observed a Buick idling outside a
No. 08-4173 Page 2
“known gang member hangout.” While watching the car Officer Lichtsinn saw two people
get into the vehicle and drive off. The officers began following the car, intending to pull it
over if the driver committed a traffic violation.
The violation occurred at approximately 10:30 p.m. as the car came to a stop sign
and the driver began turning eastbound. He did not signal the turn until the car “was in
the process of turning at the intersection,” which violated state law, see Indiana Code § 9-
21-8-25. The officers then initiated the traffic stop with their emergency lights and siren,
and the car pulled over a half-block later. As Officer Lichtsinn approached the passenger’s
side, he noticed the passenger, King, moving his shoulders up and down, possibly placing
something in between the seat and door. The officers agreed that both occupants were
gesturing and shifting more than is typical during a traffic stop.
Officer Hoffman, approaching the driver’s side, observed the driver with his hand
under his right leg. With the driver’s window open, he repeatedly ordered both occupants
to show him their hands. Neither King nor the driver complied. At that point, fearing for
his safety, Officer Lichtsinn opened the passenger door to check for accessible weapons and
saw King’s hand resting on top of a gun nestled between the seat and car door. Officer
Lichtsinn immediately yelled “gun,” securing King’s hands and forcing him out of the car,
while Officer Hoffman put the driver in handcuffs. After determining that King was a
convicted felon, the officers placed him under arrest for unlawfully possessing the gun. See
18 U.S.C. § 922(g)(1).
King responded to the charge with a motion to suppress the firearm. He conceded
that the officers had probable cause to stop the car, but argued that by opening the
passenger door Officer Lichtsinn engaged in an unlawful search of the vehicle. Following a
suppression hearing, the district court found that the totality of the circumstances—travel
from a known gang house, delay before pulling over, the occupants’ unusual movements
after pulling over, and an apparent refusal to obey Officer Hoffman’s commands—justified
the protective search. Soon thereafter King reached a plea agreement with the government,
and the district court sentenced him to 21 months’ imprisonment.
King makes only one argument on appeal. He contends that the court should have
suppressed the gun because the officers had no reasonable basis to conclude that he posed
a threat to their safety when Officer Lichtsinn opened the passenger door. We review a
district court’s legal conclusions on a motion to suppress de novo and its factual findings
for clear error. United States v. Thomas, 512 F.3d 383, 385 (7th Cir. 2008).
At the outset, King rightly does not dispute the constitutionality of the traffic stop.
The officers pulled the car over because, in violation of Indiana state law, the driver failed
No. 08-4173 Page 3
to signal his turn at least 200 feet before the intersection. See Indiana Code § 9-21-8-25.
Because an officer’s subjective motive for a traffic stop is irrelevant to its validity, see Whren
v. United States, 517 U.S. 806, 810-13 (1996); United States v. Figueroa-Espana, 511 F.3d 696, 701
(7th Cir. 2007), the only issue remaining is whether Officer Lichtsinn was justified under
the Fourth Amendment in opening the passenger door to conduct a protective search for
accessible weapons.
The Fourth Amendment’s protection against “unreasonable searches and seizures”
extends to “brief investigatory stops of persons or vehicles.” United States v. Arvizu, 534
U.S. 266, 273 (2002). At the same time, though, we respect “the need for law enforcement
officers to protect themselves and other prospective victims of violence in situations where
they may lack probable cause for an arrest.” Terry v. Ohio, 392 U.S. 1, 24 (1968). Because of
these dangers, an officer may order a vehicle’s occupants out of the car during a routine
traffic stop. See Maryland v. Wilson, 519 U.S. 408, 410 (1997); United States v. Muriel, 418 F.3d
720, 726 (7th Cir. 2005). Alternatively, if the officer has a reasonable suspicion that the
driver or passenger is armed or may be able to gain immediate control of a weapon, he may
conduct a protective search of the passenger compartment for accessible weapons. See, e.g.,
Arizona v. Gant, 129 S. Ct. 1710, 1719-20 (2009); Michigan v. Long, 463 U.S. 1032, 1049-50
(1983); United States v. Arnold, 388 F.3d 237, 239 (7th Cir. 2004). In doing so, the officer must
have “specific, articulable facts which, in combination with inferences to be drawn from
those facts, reasonably warrant the intrusion.” United States v. Fryer, 974 F.2d 813, 819 (7th
Cir. 1992); Long, 463 U.S. at 1049. In assessing the reasonableness of any search, we balance
the degree of the intrusion against the government’s justification for the search. See United
States v. Knights, 534 U.S. 112, 118-19 (2001).
Here, the occupants’ behavior gave Officer Lichtsinn reason to fear for his safety and
authority to open the passenger door to determine if King had a weapon. See United States
v. Whitaker, 546 F.3d 902, 911 (7th Cir. 2008). Before pulling the car over, the officers saw it
leave a “known gang member hangout.” Then, after the stop, both occupants made furtive
gestures and unusual movements consistent with weapons concealment, followed by
multiple refusals to show their hands. All of these factors, combined in their totality,
support the reasonableness of Officer Lichtsinn’s decision to open the car door to conduct a
limited, protective search for an accessible weapon. See Whitaker, 546 F.3d at 911; Arnold,
388 F.3d at 240-41; United States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999); Fryer, 974 F.2d at
819; see also United States v. Washington, 559 F.3d 573, 576-77 (D.C. Cir. 2009). And once he
opened the door, the gun appeared in plain view, entitling him to seize it under the plain-
view doctrine. See United States v. Bruce, 109 F.3d 323, 328 (7th Cir. 1997).
No. 08-4173 Page 4
King responds by arguing that each individual factor does not by itself justify the
intrusion. The proper standard, however, is not whether Officer Lichtsinn’s decision to
open the passenger door to search for an accessible weapon is justified by every single
factor offered in support of the search. Rather, it is whether all of the specific, articulable
bases, taken together, justified his suspicion that King was armed and dangerous, even if
each and every individual factor did not by themselves justify the search. See Long, 463 U.S.
at 1049; Brown, 188 F.3d at 865. Furtive movements consistent with weapons concealment
and disobedience of an officer’s repeated command to show one’s hands justifies a limited,
minimally intrusive search to see if a weapon is evident.
Accordingly, we AFFIRM the judgment of the district court.