United States v. Carlos Williams ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1930
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Carlos Williams, *
*
Defendant - Appellant. *
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Submitted: October 21, 1997
Filed: March 20, 1998
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Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.
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LOKEN, Circuit Judge.
After conditionally pleading guilty to possession with intent to distribute crack
cocaine, see 21 U.S.C. § 841(a)(1), Carlos Williams appeals the denial of his motion
to suppress narcotics seized during a warrantless search. Reviewing the district
court’s1 Fourth Amendment conclusions of law de novo, see United States v. Martinez,
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The HONORABLE MICHAEL J. MELLOY, Chief Judge of the United States
District Court for the Northern District of Iowa, adopting the Report and
Recommendation of the HONORABLE JOHN A. JARVEY, United States Magistrate
Judge for the Northern District of Iowa.
78 F.3d 399, 401 (8th Cir. 1996), we conclude the police had reasonable suspicion of
drug trafficking to conduct an investigative stop of the car in which Williams was a
passenger, and that they acquired probable cause to arrest Williams and seize the
cocaine during a protective pat-down search. We therefore affirm.
At the suppression hearing, Officer Dominic Wibe testified that he served as
spotter for the Cedar Rapids Police Department’s street interdiction detail on the
evening of June 20, 1995. Using high-powered binoculars from an elevated position
about seventy-five yards away, Officer Wibe observed the front of the CIO Tavern,
located in an area where citizens had complained of drug trafficking. At 9:15 p.m.,
Wibe saw Charles Cook and Williams park a car in front of the tavern and go inside.
Minutes later, Perry Harris and George Ratliff arrived in a second car and parked in
front of the tavern. Harris entered the bar and soon returned to speak with Ratliff, who
was now standing outside the car. Ratliff handed Harris money, and Harris re-entered
the tavern. Cook soon exited the tavern, spoke to Ratliff, and went to his car.
Williams followed Cook out of the tavern and approached Ratliff, and Harris came out
and joined them. Williams took some items from his right front pants pocket and held
them out to Ratliff, who selected from the offering. Williams returned the remaining
items to his pocket, while Ratliff and Harris looked at what Ratliff had selected. All
four then drove away in the two vehicles.
Officer Wibe, an experienced narcotics officer who had once attempted to
purchase narcotics from Williams while working under cover, testified that he was
“100 percent certain” that this ten-minute sequence of events was an illegal drug
transaction. Wibe inferred that Harris had acted as intermediary because Ratliff did not
know Williams and Cook well enough to buy from them directly, that Harris had
delivered Ratliff’s money to Williams or Cook in the tavern, and that Williams had
completed the exchange by offering Ratliff a choice of the illegal drugs Williams was
carrying in his pants pocket. Wibe immediately radioed fellow officers that he had just
observed a drug transaction and that the passenger in Cook’s car was likely carrying
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narcotics in his pants pocket. Wibe provided license plate numbers, described the cars
and the clothing worn by their occupants, and directed that the two cars be stopped.
Officer Scott Syverson, the other government witness at the suppression hearing,
testified that he and Officer McDaniel received Wibe’s radio transmission and stopped
the car driven by Cook. Syverson approached passenger Williams and reviewed the
identification he provided. Syverson told Williams the reason for the stop and asked
him to exit the car. Syverson radioed Wibe, who confirmed that Williams was the right
person to be questioned about the events Wibe had observed. Syverson then patted
Williams down for weapons. When Syverson felt a bulge in the pants pocket where
Wibe said narcotics would likely be found, Syverson reached in that pocket, removed
crack cocaine, powder cocaine, and marijuana from the pocket, and arrested Williams.
This prosecution followed.
On appeal, Williams first argues that Officer Wibe lacked probable cause to
order the stop of the car in which Williams was riding because Wibe could not see well
enough -- by street light, from a distance, and through binoculars -- to determine that
Williams, Ratliff, Harris, and Cook were engaged in an illegal drug transaction.
However, the issue at this point in the scenario is whether Wibe saw enough to form
a reasonable, articulable suspicion that criminal activity was afoot, thereby justifying
an investigative stop of the car. See Terry v. Ohio, 392 U.S. 1, 25-31 (1968). Wibe’s
decision to order an investigative stop was unquestionably justified. Wibe observed
behavior consistent with his knowledge of illegal narcotics street sales outside a tavern
in a suspected drug trafficking area, and the behavior involved Williams, whom Wibe
had suspected of drug trafficking in the past. Although the interplay could have been
innocent, Wibe had reasonable suspicion that both Williams and Ratliff left this scene
with drugs in their possession, evidence of criminal activity that might be uncovered
by a prompt investigative stop of the highly mobile participants. Officer Wibe violated
no Fourth Amendment rights by directing an investigative stop of the two cars.
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The scene now shifts to Officer Syverson’s discovery of the incriminating
narcotics in Williams’s pants pocket. Syverson was of course entitled to rely on
information provided by Officer Wibe in stopping the car in which Williams was riding.
See United States v. Robinson, 119 F.3d 663, 666-67 (8th Cir. 1996); United States v.
Riley, 927 F.2d 1045, 1048-49 (8th Cir. 1991). Once an investigative stop has been
initiated, a police officer who has reason to believe that the person stopped may be
armed and dangerous may conduct a pat-down search for weapons to protect officer
safety. See Adams v. Williams, 407 U.S. 143, 146 (1972); United States v. Menard,
95 F.3d 9, 11 (8th Cir. 1996), and cases cited. In this case, Williams concedes that
Officer Syverson’s decision to conduct a pat-down search was reasonable.
Williams argues, however, that Officer Syverson exceeded the permissible scope
of a pat-down search when he removed the bulge from Williams’s pocket. We
disagree. When an officer discovers contraband during the course of a legitimate Terry
search, “the Fourth Amendment does not require its suppression.” Michigan v. Long,
463 U.S. 1032, 1050 (1983). Typically, such discoveries are made when contraband
comes into plain view of the officer conducting a protective search. But the principle
is not limited to what can be seen. “If a police officer lawfully pats down a suspect’s
outer clothing and feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of the suspect’s privacy beyond that
already authorized by the officer’s search for weapons.” Minnesota v. Dickerson, 113
S. Ct. 2130, 2137 (1993); see United States v. Craft, 30 F.3d 1044 (8th Cir. 1994);
United States v. Hughes, 15 F.3d 798, 802 (8th Cir. 1994). Here, Williams argues that
Syverson went too far because the incriminating nature of the bulge in Williams’s pants
pocket was not “immediately apparent.” But that ignores the very basis for the Terry
stop -- the fact that Officer Wibe had seen Williams put what Wibe reasonably believed
to be illegal narcotics in that very pocket only minutes before the stop. Based upon the
information Wibe had supplied, the reasonable suspicion that justified an investigative
stop rose to probable cause when Officer Syverson felt the confirming bulge in
Williams’s pocket. See United States v. Rogers, 129 F.3d 76, 80 (2d Cir.
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1997) (immediately apparent under Dickerson means “anytime in the course of a search
conducted within the bounds of Terry”). Therefore, Syverson lawfully arrested
Williams and removed the incriminating evidence from his pocket incident to that
arrest, and Williams’s motion to suppress was properly denied. See United States v.
Turpin, 920 F.2d 1377, 1386 (8th Cir. 1990) (substantially contemporaneous search
may precede arrest so long as probable cause to arrest existed before the search), cert.
denied, 499 U.S. 953 (1991).
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS EIGHTH CIRCUIT.
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