United States v. David Eugene Murphy ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-1579
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
David Eugene Murphy, *
*
Appellant. *
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Submitted: June 12, 2001
Filed: August 16, 2001
___________
Before MORRIS SHEPPARD ARNOLD and RICHARD S. ARNOLD, Circuit
Judges, and TUNHEIM,1 District Judge.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
David Murphy was convicted of possessing methamphetamine with the intent
to distribute it, see 21 U.S.C. § 841(a)(1), based on a plastic bag of methamphetamine
that the police found in his possession after they arrested him for providing false
identification during a traffic stop. Mr. Murphy moved to suppress the drug evidence
because, he maintained, he never would have been arrested, and the drugs would not
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, sitting by designation.
have been found, but for an unlawful traffic stop and an unlawful search of his wallet
conducted by Captain James Wobschall of the Hampton Police Department. The
district court2 concluded that both the traffic stop and the search were valid.
On appeal, Mr. Murphy maintains that Captain Wobschall's search of his wallet
was unlawful. He also argues, for the first time, that Captain Wobschall did not have
a legally sufficient reason to perform a pat-down search of his person during the traffic
stop. We disagree and affirm the judgment of the district court.
I.
After Captain Wobschall stopped Mr. Murphy's vehicle, he asked for and
received consent from Mr. Murphy to search it. At the same time, he informed
Mr. Murphy that he was going to conduct a pat-down search of Mr. Murphy's person
to ensure that Mr. Murphy did not have any weapons. This pat-down search allowed
Captain Wobschall to find Mr. Murphy's wallet and discover his identity, a revelation
that, in turn, provided the grounds for Mr. Murphy's arrest. Mr. Murphy now contends
that the pat-down search was unlawful, and that any evidence found as a consequence
of the search should have been suppressed. Because he failed to make this objection
at trial, we review this matter for plain error. See United States v. Brown, 203 F.3d
557, 558 (8th Cir. 2000) (per curiam).
On plain-error review, we will reverse only if there is an error that is obvious and
that affects a defendant's substantial rights. See United States v. Campa-Fabela, 210
F.3d 837, 840 (8th Cir. 2000), cert. denied, 121 S. Ct. 1739 (2001). In this case, we
do not think that there was any error, plain or otherwise, with regard to the district
court's decision to permit the use of evidence found subsequent to Captain Wobschall's
pat-down search. The justification for a pat-down search is to ensure the safety of a
2
The Honorable Mark W. Bennett, Chief Judge, United States District Court for
the Northern District of Iowa.
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law enforcement officer. See United States v. Gray, 213 F.3d 998, 1000 (8th Cir.
2000); see also United States v. Thomas, 249 F.3d 725, 729-30 (8th Cir. 2001). A
pat-down search, therefore, is constitutional when a law enforcement officer "observes
unusual conduct which leads him reasonably to conclude in light of his experience that
criminal activity may be afoot and that the persons with whom he is dealing may be
armed and presently dangerous," Terry v. Ohio, 392 U.S. 1, 30 (1968).
The facts found by the district court in this case were sufficient to give
Captain Wobschall a legal basis for conducting a pat-down search. As the record
indicates, when Captain Wobschall elected to conduct the pat-down search, it was
2:45 a.m., and he knew that he was dealing with a single male who was driving a
vehicle that was registered in a woman's name; he also noticed that the vehicle was
displaying an out-of-area license plate. By this time, furthermore, Mr. Murphy had
asserted to Captain Wobschall that he did not possess a driver's license or any other
proof of identification. Captain Wobschall therefore had no way to determine the
identity of the person with whom he was dealing and whether Mr. Murphy was a
criminal and might be dangerous. We think that these facts, taken collectively, amount
to unusual conduct that allowed Captain Wobschall, with his 23 years of experience as
a law enforcement officer, to conclude reasonably that Mr. Murphy might have been
engaged in a crime and might pose a danger to a law enforcement officer's safety. See
United States v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000), cert. denied, 121 S. Ct.
199 (2000). We thus reject Mr. Murphy's argument on this point.
II.
While conducting the pat-down search, Captain Wobschall noticed a wallet in
Mr. Murphy's back pants pocket. He asked Mr. Murphy about the wallet, and
Mr. Murphy voluntarily showed it to him, stating that it contained only pictures and no
document of identification. Captain Wobschall discerned what looked like a driver's
license or identification card protruding from the wallet, however, and he seized the
wallet for a search. Mr. Murphy maintains that this seizure was unconstitutional.
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A law enforcement officer is permitted "to seize evidence without a warrant
when the initial intrusion is lawful, the discovery of the evidence is inadvertent, and the
incriminating nature of the evidence is immediately apparent," United States v. Raines,
243 F.3d 419, 422 (8th Cir. 2001), cert. denied, 121 S. Ct. 2231 (2001); see also
United States v. Weinbender, 109 F.3d 1327, 1330 (8th Cir. 1997). Because
Mr. Murphy voluntarily showed his wallet to Captain Wobschall, he cannot, and does
not, argue that Captain Wobschall's discovery of his driver's license was the result of
an unlawful intrusion or that the discovery was deliberate. Mr. Murphy contends
instead that the fact that his driver's license was visibly protruding from his wallet was
not sufficiently incriminating to warrant Captain Wobschall's seizure.
We disagree and think that the driver's license, visible from a glance at
Mr. Murphy's wallet, was, in the context of this case, sufficiently incriminating to allow
Captain Wobschall to seize it. To satisfy the "immediately apparent" standard, Raines,
243 F.3d at 422, it is not necessary that a law enforcement officer know with certainty
that an item is contraband or evidence of a crime. See United States v. Garner, 907
F.2d 60, 62 (8th Cir. 1990), cert. denied, 498 U.S. 1068 (1991). Rather, all that is
required is " 'probable cause to associate the property with criminal activity,' " Texas
v. Brown, 460 U.S. 730, 741-42 (1983) (plurality opinion), quoting Payton v. New
York, 445 U.S. 573, 587 (1980).
In this case, seeing Mr. Murphy's driver's license in the wallet would have
immediately alerted Captain Wobschall to the possibility that criminal activity was
occurring, because at the beginning of the traffic stop Mr. Murphy told
Captain Wobschall that he did not have a driver's license or any other form of
identification on his person. Upon noticing that Mr. Murphy did in fact possess a
driver's license, it was immediately apparent to Captain Wobschall that Mr. Murphy
had violated Iowa Code § 321.174.3 by not displaying his driver's license to the police.
Captain Wobschall also could have had probable cause to believe that, based on " 'the
facts available to a reasonably cautious man,' " United States v. Hatten, 68 F.3d 257,
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261 (8th Cir. 1995), cert. denied, 516 U.S. 1150 (1996), quoting Garner, 907 F.2d at
62, Mr. Murphy was violating Iowa Code § 718.6.3 by providing the police with false
information about his identity. Our conclusion is buttressed by the fact that
Captain Wobschall was a veteran law enforcement officer with extensive experience
in recognizing criminal acts. See Garner, 907 F.2d at 62. We therefore hold that
Captain Wobschall had an adequate reason to seize Mr. Murphy's wallet.
III.
For the reasons indicated, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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