United States v. Gregory Roggeman ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-1738
___________
United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Gregory Roggeman, *
*
Appellee. *
___________
Submitted: October 2, 2001
Filed: February 1, 2002
___________
Before BOWMAN, HEANEY, and BYE, Circuit Judges.
___________
BOWMAN, Circuit Judge.
The United States appeals the District Court's grant of defendant Gregory
Roggeman's motion to suppress all evidence seized from his person, pickup truck, and
residence. A pat-down search of a bulge in Roggeman's right-front pants pocket
during a routine traffic stop led to a state trooper's initial seizure of marijuana and
drug paraphernalia. The government argues that the trooper's pat-down was justified
by reasonable suspicion that Roggeman was presently armed and dangerous and that
the District Court thus erred in concluding that the pat-down violated the Fourth
Amendment. We agree and therefore reverse and remand for further proceedings.
I.
Just before midnight on September 7, 2000, Gregory Roggeman was driving
his pickup truck near his home in Mason City, Iowa. Iowa State Trooper Ryan Moore
pulled up behind Roggeman's truck at a stop sign. When Roggeman accelerated away
from the stop sign, Trooper Moore noticed the truck making unusually loud exhaust
noises. He pulled Roggeman over to investigate a possible muffler violation.1
Roggeman was the only person in the truck; Trooper Moore was alone as well. The
trooper walked up to the truck's driver's-side door and asked Roggeman through his
open window for his driver's license. The trooper informed Roggeman that he had
been stopped for having a faulty muffler. Roggeman admitted that the truck's muffler
had a hole in it and told the trooper that he was heading home from a shop where he
had been working on the truck.
Trooper Moore told Roggeman that he intended to issue him a warning for his
muffler violation. He then requested that Roggeman "come back and have a seat in
the patrol car." Tr. of Videotape. Trooper Moore testified at the suppression hearing
that he makes it part of his "normal routine" to ask motorists to whom he intends to
issue a citation or warning to come back to his patrol car. Tr. at 12. Almost
immediately after the trooper asked Roggeman to exit his truck, the trooper started
asking Roggeman whether he had any weapons. Roggeman said he did not.
The parties dispute, and the record does not make clear, the precise sequence
of events from the time Trooper Moore asked Roggeman to come back to his patrol
1
The record includes an audio videotape that a recording device in the trooper's
patrol car made of the encounter. The recording begins just before the trooper pulls
over Roggeman's truck and continues throughout the duration of the disputed pat-
down search. The tape was admitted into evidence at the suppression hearing, and
the transcript (with unnumbered pages) that the District Court made of the audio
portion of the tape is included in the record on appeal.
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car to the time the trooper first patted Roggeman down. Significant disagreement
also exists as to the number of pat-downs to which Trooper Moore subjected
Roggeman.2 Trooper Moore's testimony, however, was unequivocal and
uncontradicted that his observation of the bulge in Roggeman's right-front pants
pocket took place before he performed the pat-down. Moreover, the District Court
adopted the magistrate judge's finding that the trooper "did, in fact, see the bulge
before he patted Roggeman's pocket." United States v. Roggeman, No. CR00-3046-
MWB, at 12 (N.D. Iowa Jan. 30, 2001) (Report and Recommendation).
Most of the light on the scene came from the patrol car's headlights and
spotlight, but the trooper also had a flashlight in his hand. Trooper Moore ran the
beam of the flashlight over the door of the truck as Roggeman began opening it.
Although the District Court and the magistrate judge do not mention it, it is readily
apparent from the videotape that the trooper then ran his flashlight's beam over the
front of Roggeman's torso and legs as he stepped from the truck. As Roggeman set
foot on the ground and turned to walk toward the patrol car, the trooper shone the
flashlight directly on both of Roggeman's front pants pockets.
The exact chronology again is unclear, but within several seconds after
Roggeman opened his truck's door, Trooper Moore saw the bulge in Roggeman's
2
The District Court and magistrate judge did not make an express finding on
this question. The magistrate judge's report seems to find implicitly that Trooper
Moore conducted at least two pat-downs of Roggeman's right-front pants pocket
before Roggeman got into the trooper's patrol car, see United States v. Roggeman,
No. CR00-3046-MWB, at 4-5 (N.D. Iowa Jan. 30, 2001) (Report and
Recommendation); however, both Trooper Moore's testimony and the videotape of
the incident are ambiguous regarding whether, after Roggeman exited his truck but
before he got into the patrol car, Trooper Moore patted him down only once or more
than once. The parties' attorneys did not fully develop the trooper's testimony on this
issue. (The government's brief inexplicably suggests that the number is three. See
Br. of Appellant at 3.)
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right-front pants pocket. Trooper Moore testified that during his initial pat-down of
the pocket he immediately recognized that the cause of the bulge was a plastic or
"cellophane" bag (which, when removed from Roggeman's pocket, was found to
contain the marijuana) and a marijuana pipe. Specifically, approximately 4.7 grams
of marijuana, a marijuana pipe, and a lighter were fetched from Roggeman's pocket.3
After the trooper seized the contents of Roggeman's pocket, Roggeman and the
trooper sat in the patrol car while the trooper wrote citations for the marijuana and
marijuana pipe. By then, the trooper apparently had decided not to arrest Roggeman
but only to conduct a complete pat-down search of Roggeman's person and then to
search his truck before sending him on his way. While conducting these additional
searches, Trooper Moore found more marijuana, a white powdery substance that he
concluded was methamphetamine, and a bottle of inositol powder, an agent
commonly used for diluting or "cutting" methamphetamine. He then arrested
Roggeman. When officers carried out a search warrant at Roggeman's residence the
next day, they found more marijuana, more drug paraphernalia, and an SKS assault
rifle.
On October 26, 2000, a federal grand jury returned an indictment against
Roggeman charging him with two counts: possessing methamphetamine with the
intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(C) (1994 & Supp. V 1999), and
being a convicted felon and unlawful user of a controlled substance in possession of
a firearm, see 18 U.S.C. § 922(g)(1), (g)(3) (1994). After conducting an evidentiary
hearing on Roggeman's motion to suppress, a magistrate judge filed a report
recommending that the District Court grant the motion. Roggeman did not contest
the legitimacy of the initial traffic stop, but the magistrate judge concluded that the
3
Although the record suggests that Roggeman removed the marijuana and
marijuana pipe from his pocket himself and then surrendered it to the trooper, the
government apparently waived any argument it may have had that, from a Fourth
Amendment standpoint, this surrender was voluntary. See Tr. at 75-77.
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state trooper's pat-down search of Roggeman for weapons after the initial stop
violated his Fourth Amendment rights. The government filed several objections to
the factual findings and legal conclusions supporting the magistrate judge's report and
recommendation.
After conducting a de novo review of the record, the District Court adopted the
report and recommendation with little modification. The court concluded that the pat-
down search violated the Fourth Amendment because, when the trooper patted
Roggeman down, he did not have a reasonable, articulable suspicion that Roggeman
might be armed and dangerous. The court ordered that the marijuana and marijuana
pipe the trooper seized during the pat-down search be suppressed. It also ordered the
suppression of all evidence seized as a result of searches subsequent to the pat-down
as the "fruit of the poisonous tree." We reverse because we conclude that the pat-
down was justified by reasonable suspicion.
II.
This appeal turns upon whether Trooper Moore's pat-down of Roggeman's
right-front pants pocket was justified by reasonable suspicion.4 The determination
of whether a protective pat-down search for weapons was supported by reasonable
suspicion is a mixed question of law and fact, which we review de novo. See Ornelas
4
In addition to his argument that the pat-down was not justified by reasonable
suspicion, Roggeman argued in his motion to suppress that the pat-down was
unconstitutional because the trooper's subsequent seizure of the contraband in
Roggeman's right-front pants pocket did not conform to the standards of the "plain
feel" doctrine. See Minnesota v. Dickerson, 508 U.S. 366 (1993). After determining
that the initial pat-down itself violated the Fourth Amendment, the magistrate judge's
report concluded that this determination obviated any need to reach the "plain feel"
issue. The District Court did not modify this conclusion, and neither party briefed
Roggeman's "plain feel" argument on appeal. Since the issue is not before us, we do
not address it.
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v. United States, 517 U.S. 690, 696, 699 (1996). We review the material findings of
historical fact for clear error and "give due weight to inferences drawn from those
facts" by the district court. Id. at 699.
The Fourth Amendment forbids searches and seizures that are unreasonable,
Terry v. Ohio, 392 U.S. 1, 9 (1967), and "generally requires police to secure a warrant
before conducting a search." Maryland v. Dyson, 527 U.S. 465, 466 (1999). A law-
enforcement officer is nevertheless justified in making a limited, warrantless search
for the protection of himself or others nearby in order to discover weapons if he has
a reasonable, articulable suspicion that the person may be armed and presently
dangerous. Terry, 392 U.S. at 30. Because the "sole justification" for such a search
is the protection of the officer and others, its scope must be confined to a search
reasonably designed to discover concealed weapons. Id. at 29; see also Adams v.
Williams, 407 U.S. 143, 146 (1972) ("So long as the officer is entitled to make a
forcible stop, and has reason to believe that the suspect is armed and dangerous, he
may conduct a weapons search limited in scope to this protective purpose."). Courts
are required to apply an objective test to resolve the question whether reasonable,
articulable suspicion justified a protective search. Terry, 392 U.S. at 22 (explaining
that a test based on an officer's subjective, good-faith belief that the person is armed
is an insufficient constitutional safeguard, for it would subjugate Fourth Amendment
protections to the good faith of law-enforcement officers). Under this objective
standard, the "officer need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man in the circumstances would be warranted
in the belief that his safety or that of others was in danger." Id. at 27.
The level of suspicion necessary to constitute reasonable suspicion that will,
in turn, justify a protective pat-down search "is considerably less than proof of
wrongdoing by a preponderance of the evidence" and "is obviously less demanding
than that for probable cause." United States v. Sokolow, 490 U.S. 1, 7 (1989).
Nevertheless, the Fourth Amendment requires "some minimal level of objective
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justification." Id.; accord Terry, 392 U.S. at 27 ("[I]n determining whether the officer
acted reasonably in such circumstances, due weight must be given, not to his inchoate
and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences
which he is entitled to draw from the facts in light of his experience.").
Reasonable suspicion is not a "finely-tuned" or bright-line standard; each case
involving a determination of reasonable suspicion must be decided on its own facts.
Ornelas, 517 U.S. at 696; Terry, 392 U.S. at 29 ("[T]he limitations which the Fourth
Amendment places upon a protective seizure and search for weapons . . . will have
to be developed in the concrete factual circumstances of individual cases."); cf.
United States v. Cortez, 449 U.S. 411, 417 (1981) ("Terms like 'articulable reasons'
and 'founded suspicion' are not self-defining; they fall short of providing clear
guidance dispositive of the myriad factual situations that arise."). In order to
determine whether the facts and circumstances surrounding a Terry search and seizure
give rise to reasonable suspicion, "the totality of the circumstances—the whole
picture—must be taken into account." Cortez, 449 U.S. at 417.
Here, the evidence supports a conclusion that Trooper Moore's initial pat-down
search was justified by reasonable, articulable suspicion. Trooper Moore was alone,
he stopped Roggeman late at night, and the scene of the stop was poorly lit. These
facts go to officer safety, the seminal justification for the Supreme Court's
development of the Terry stop. The Court explained in Terry that the great risks that
investigatory detentions present to officer safety tip the scales balancing the
government's interest in protecting law-enforcement officers against the individual's
right to personal security in favor of finding limited, protective searches to be
constitutional. See 392 U.S. at 22-27. In its previous decisions, this Court has
concluded that the fact that a suspect was detained late at night by a lone officer in
a poorly lit area adds to the reasonableness of an officer's conclusion that the person
he has detained should be frisked for weapons. See United States v. Douglas, 964
F.2d 738, 740-41 (8th Cir. 1992); United States v. Buchannon, 878 F.2d 1065, 1067
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(8th Cir. 1989) (concluding that, in addition to the fact that appellant was a large man
wearing a long winter coat which might have concealed a weapon, the fact that the
officer was alone lent support to a finding of objective reasonable suspicion); cf.
United States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989) (explaining that the
facts that the "'hour was late, the street was dark, the officer was alone, and the
suspected crime was a burglary, a felony that often involves the use of weapons'"
supported its conclusion that the officer's stop and frisk of the defendant was
supported by reasonable suspicion (quoting United States v. Moore, 817 F.2d 1105,
1108 (4th Cir.), cert. denied, 484 U.S. 965 (1987))). While the District Court
minimized the significance of these facts, they nevertheless are present and lend some
support to the conclusion that the pat-down of Roggeman was objectively reasonable.
We also note that, rather than applying the totality-of-the-circumstances test required
by Terry, the District Court considered these facts in isolation without incorporating
its finding that Trooper Moore had seen the bulge in Roggeman's pocket before
performing the pat-down. See United States v. Roggeman, No. CR00-3046, at 14-16
(N.D. Iowa Feb. 28, 2001) (Memorandum Opinion and Order).
Even if, therefore, we were to agree with the District Court's minimization of
the legal significance of the fact that Trooper Moore was alone, the hour was late, and
the lighting so poor the trooper felt a need to use a flashlight to obtain a good view
of Roggeman, our determination that Trooper Moore's protective pat-down was
justified by reasonable suspicion receives strong support from the District Court's
own finding that the trooper observed the bulge in Roggeman's right-front pocket
before he patted down that pocket. When determining whether the totality of the
circumstances gave rise to reasonable suspicion justifying a protective Terry search,
both this Court and our sister circuits consider a law-enforcement officer's
observation of a bulge to be a substantial factor. See, e.g., United States v. Baker, 78
F.3d 135, 137 (4th Cir. 1996); United States v. Brooks, 2 F.3d 838, 842 (8th Cir.
1993), cert. denied, 510 U.S. 1137 (1994); United States v. $84,000 United States
Currency, 717 F.2d 1090, 1098-99 (7th Cir. 1983), cert. denied, 469 U.S. 836 (1984);
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cf. United States v. Elsoffer, 671 F.2d 1294, 1299 (11th Cir. 1982) (concluding that
unusual shape, size, and position of bulge on suspect's person "alone provided not
only reasonable suspicion but also probable cause" for his arrest).
Indeed, the facts and circumstances surrounding the protective pat-down search
of the motorist in Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam), bear
such striking resemblance to the facts of this case that Mimms would seem to require
our reversal of the District Court's order. The Court in Mimms was called upon to
decide two main questions: whether directing a motorist stopped for a minor traffic
violation to step out of his vehicle was a constitutionally permissible seizure, and,
more importantly for our analysis, whether patting down the motorist because of a
bulge in his jacket was infirm under the Fourth Amendment. The two police officers
in Mimms pulled over an automobile for a routine traffic violation (having an expired
license tag). Despite concededly having "no reason to suspect foul play from the
particular driver at the time of the stop," id. at 109, one officer asked the driver to step
out of the vehicle. The officer then noticed "a large bulge" under the motorist's sports
jacket. Id. at 107. The officer frisked the driver out of concern that the bulge might
be a weapon and seized a loaded handgun from his waistband.
The Supreme Court first concluded that under Terry the officer's seizure of the
motorist by ordering him to exit his vehicle did not violate the Fourth Amendment,
then treated the question of the propriety of the pat-down as a rather straightforward
application of Terry as well. In deciding this second question, the Court summarily
concluded that the pat-down search precipitated by the officer's observation of the
bulge under the driver's jacket was a reasonable search under the Fourth Amendment.
There was, the Court stated, "little question the officer was justified" under the
standard enunciated in Terry. Id. at 112. "The bulge in the jacket permitted the
officer to conclude that Mimms was armed and thus posed a serious and present
danger to the safety of the officer. In these circumstances, any man of 'reasonable
caution' would likely have conducted the 'pat-down.'" Id.
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The similarities between the facts in the instant case and the facts in Mimms
are readily apparent. Like the officers in Mimms, Trooper Moore stopped Roggeman
for a minor traffic violation. Like them, he asked Roggeman to step out of his vehicle
before having any reason to believe Roggeman might be armed and dangerous or
involved in any sort of criminal activity. Then, after Roggeman began exiting his
vehicle, but before the initial pat-down, Trooper Moore, using his flashlight, observed
the bulge in Roggeman's right-front pocket. The bulge under the driver's sports jacket
in Mimms was described as being "large." 434 U.S. at 107. Trooper Moore testified
that the size and the shape of the bulge in Roggeman's pocket were factors that made
him concerned that it might be a weapon. Tr. at 30-31, 39.
The District Court found that "Trooper Moore did not consider the bulge in
defendant Roggeman's pants pocket to have been possibly made by a weapon" when
he conducted the initial pat-down. United States v. Roggeman, No. CR00-3046, at
12. Though we believe that as a matter of law this finding would not preclude a
determination that the pat-down was objectively reasonable,5 in fact the finding is
5
As we have noted, we apply an objective test to determine whether a
protective pat-down is supported by reasonable suspicion. Terry v. Ohio, 392 U.S.
1, 21-22 (1967). Such an objective inquiry does not, however, require us to ignore
all evidence of Trooper Moore's thought processes at the time he patted down
Roggeman. When conducting our objective, reasonable-suspicion analysis, we are
required to put ourselves, as best we can, into the shoes of the officer who actually
performed the protective search. Id. at 27, 30. Trooper Moore's conclusions during
the initial moments of his stop of Roggeman are at least some evidence of what a
reasonable officer in Trooper Moore's position would have inferred from the facts and
circumstances of the encounter. See Ornelas v. United States, 517 U.S. 690, 699
(1996) (explaining that, even though reasonable-suspicion and probable-cause
determinations should be reviewed de novo, law-enforcement officers' inferences,
drawn from the facts presented to them, are not irrelevant but should be accorded
"due weight"). The Supreme Court's analysis of the reasonable suspicion supporting
the officers' search and seizure in United States v. Cortez, 449 U.S. 411 (1981),
makes it plain that an officer's conclusions drawn from the facts he encounters are a
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clearly erroneous. We are firmly convinced that this finding regarding Trooper
Moore's state of mind at the time he patted down Roggeman cannot be upheld on this
record read as a whole. See Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)
legitimate subject of inquiry. See id. at 418-21 (considering logical inferences that
border patrol officers drew from facts known to them prior to a Terry stop and
concluding that those inferences contributed to the legal justification for the stop);
accord Terry, 392 U.S. at 21.
The ultimate test, of course, is not what the searching officer actually believed
but what a hypothetical officer in exactly the same circumstances reasonably could
have believed. The Supreme Court in Whren v. United States, 517 U.S. 806 (1996),
for example, ruled that an officer's "[s]ubjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis." Id. at 813. Whren and other Supreme
Court cases with related holdings stand for the proposition that under Fourth
Amendment analysis it is of no consequence "that the motivation for the search did
not coincide with the legal justification" for the search. Scott v. United States, 436
U.S. 128, 138 (1978); cf. Graham v. Connor, 490 U.S. 386, 397 (1989) ("An officer's
evil intentions will not make a Fourth Amendment violation out of an objectively
reasonable use of force . . . ."); United States v. Villamonte-Marquez, 462 U.S. 579,
584 n.3 (1983). These cases thus foreclose argument by a criminal defendant that an
otherwise-justified search and seizure violates the Fourth Amendment because the
legal justification—such as the probable cause arising from a minor traffic violation
and justifying a traffic stop—was simply a pretext for law-enforcement officers to
investigate their hunches regarding criminal activities unrelated to that legal
justification.
But, for the reasons we already have explained, we are satisfied that in
determining whether the pat-down of Roggeman's pocket was supported by an
objectively reasonable, articulable suspicion, the objective approach the Supreme
Court has mandated does not make it irrelevant for us to inquire whether at the time
of the pat-down Trooper Moore in fact suspected that Roggeman might be armed and
dangerous. We emphasize the obvious: at the very least, it would militate against a
conclusion that a search was supported by an objectively reasonable, articulable
suspicion if in fact the searching officer, based upon his training, knowledge, and
evaluation of the circumstances, did not believe it was possible that a bulge in the
defendant's clothing was caused by a weapon, yet proceeded to search the defendant.
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(explaining that a district court's finding of fact is not clearly erroneous if it is
"plausible in light of the record viewed in its entirety").
Although the District Court and magistrate judge did not agree with some of
Trooper Moore's conclusions from the facts and circumstances of the traffic stop and
protective pat-down, neither one found or even suggested that Trooper Moore was not
a credible witness. During Trooper Moore's testimony at the suppression hearing, the
magistrate judge asked him directly about his state of mind at the time he patted
Roggeman down. Trooper Moore's testimony was unequivocal throughout this line
of questioning that he believed the bulge could have been caused by a weapon.
THE COURT: Now, when you saw that bulge in the pocket, what went
through your mind?
THE WITNESS: It could be a possible weapon. I was definitely
concerned about what it was.
THE COURT: What kind of weapon?
THE WITNESS: Be it a gun, a small caliber handgun in the pocket.
THE COURT: It was of a size that would have been consistent in your
mind with a small caliber handgun?
THE WITNESS: Yes, sir.
...
THE COURT: I will just ask you. Did you also think that it might be
drugs when you saw the bulge in the pocket?
TROOPER MOORE: I -- No, I didn't, Your Honor.
THE COURT: So you thought weapon before drugs?
TROOPER MOORE: Yes, sir.
Tr. at 36, 40. The government's attorney did not fully develop Trooper Moore's
testimony on this issue during direct examination, but on re-direct the trooper again
testified that the bulge caused him to be concerned that Roggeman might be armed.
Trooper Moore was concerned because of both the fact of and size of the bulge.
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[Mr. Williams:] So when he told you he didn't have any weapons, knives
or anything like that on his person, did that alleviate all of the concern
you had about whether he had a weapon in his pocket?
[Trooper Moore:] No, it did not.
...
[Q.] Did you have any concern about whether he had a weapon in his
right pocket?
[A.] Yes, I did.
Q. And what was that based on?
A. Based upon the bulge and the size of the bulge in his pocket.
Tr. at 30-31.
While the magistrate judge's comments during the suppression hearing are not
evidence, we note here that his stated observations during the government's cross-
examination of Roggeman are consistent with our conclusion that an officer with
Trooper Moore's background and experience would have had a reasonable suspicion
that Roggeman might be armed and dangerous. During one segment of the hearing,
Roggeman attempted to demonstrate for the magistrate judge that the contents of his
pocket on the night of his arrest would not have produced a visible bulge. Tr. at 45-
49, 59-61. Instead of using the actual marijuana pipe, however, Roggeman used a
bolt which he repeatedly represented to the magistrate judge was the same size as the
pipe seized from his pocket. Tr. at 46, 60. Upon viewing this bolt, the magistrate
judge had, he said,
no doubt that something the size of what you are displaying [the bolt],
which is supposedly the size of the marijuana pipe, could be a weapon.
It could be a knife. If the officer were able to observe that from the
pocket, th[en] he would have justification to Terry search [sic].
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Tr. at 53-54. He therefore cut off a line of questioning in which the government was
attempting to establish that the size of the items in Roggeman's pocket was consistent
with the size of a weapon. Id.
When the magistrate judge later examined the pipe actually seized from
Roggeman, he found that the stem of the pipe was larger than the shaft of the bolt
used in the courtroom demonstration and that the diameter of the pipe's bowl was
almost twice the diameter of the bolt's head. Roggeman, No. CR00-3046-MWB, at
9-10. Although the magistrate judge's report expressed doubt that the size of the
bulge would have been as large as the trooper described (i.e., a bulge sticking out
"approximately 2 or 3 inches," Tr. at 22-23), the report also found that "[i]t clearly
would have been easier than it appeared in the courtroom demonstration for Trooper
Moore to see that Roggeman had something in his pocket." Roggeman, No. CR00-
3046-MWB, at 10.
The District Court cited two passages from the transcript of Roggeman's
counsel's cross-examination of Trooper Moore to support its finding that the trooper,
before patting down Roggeman, did not believe that he might be armed. Our review
of the entirety of Trooper Moore's testimony, as well as of the entirety of the record,
see Anderson, 470 U.S. at 573, leads us to conclude that in these two passages
Trooper Moore was disclaiming that he had possessed actual knowledge that the
bulge was a weapon. He was not disclaiming that he had been suspicious that a
weapon might be causing the bulge. In the first passage the District Court cited,6
6
Counsel for Roggeman questioned Trooper Moore:
Q. And tell us, if you would, what reason there was that you believed
this object you have now described was a weapon in that right front
pocket.
A. I didn't know what the object was. I wanted to know because it
was dark and it is hard to visually observe what things are in the dark.
Q. Okay. So is it -- Would your testimony be -- Would I be correct
if I said your testimony was you had no reason to believe it was a
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Roggeman's counsel asked the trooper for the reasons that he had "believed" that
what he saw was a weapon. Tr. at 23. Trooper Moore's immediate reply was that he
did not "know" what the object in Roggeman's pocket was. Id. Similarly, in the
second passage cited by the District Court,7 Roggeman's counsel again elicited the
weapon, but you were curious as to what it was? Would that be fair?
A. Yes, sir.
Tr. at 23.
7
Roggeman's counsel again questioned the trooper:
Q. Trooper Moore, you said he got out of the car and he had a bulge
in his pocket and you described it. What made you think it was a
weapon?
A. Just I guess it was concealed in his pocket. I was curious as to
what it was.
Q. I understand you were curious. But it just as well could have been
a billfold? Yes?
A. It wasn't the shape of a billfold.
Q. Well, could have been [sic] a hockey puck?
A. Yes, sir.
Q. Could have been [sic] a cigarette lighter?
A. Yes, sir.
Q. And so my question is: He gets out of the car, you see this bulge.
Again, I'll ask you, give me one reason that you thought this was a
weapon. Just one.
A. Based upon my training, the way it looked in his pocket, it
possibly could have been a weapon.
Q. Okay. How did it look like a weapon when you saw a bulge in his
pocket? How did it look like a weapon?
A. Just the shape of the object, it made me curious as to what it was.
Q. Okay. So it didn't look like a weapon, the shape of it made you
curious?
A. Yes, sir.
Q. And so you have no reason to conclude that it is a weapon other
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trooper's testimony that the bulge could have been made by objects other than a
weapon and that he had been "curious" as to what was causing the bulge. Focusing
on these statements, the District Court concluded that "Trooper Moore was acting on
nothing but a 'hunch' or subjective belief unsupported by objective facts." Roggeman,
No. CR00-3046, at 13-14. We are firmly convinced that this is not a conclusion that
a reasonable reading of the Trooper's testimony can support. Though Trooper Moore
never stated that he was certain that Roggeman was armed, throughout his testimony
he continued to assert that he had suspected that Roggeman might have a weapon in
his pocket and to explain the rational basis supporting this suspicion. See, e.g., Tr.
at 39 ("Q. . . . 'How did it look like a weapon?' A. 'Just the shape of the object, it
made me curious as to what it was.'"). For a protective pat-down search to be
justified, it is not necessary that the officer have been absolutely certain that the
suspect was armed. Terry, 392 U.S. at 27. All the Fourth Amendment requires is
objectively reasonable suspicion. The trooper's testimony in the portions of his cross-
examination relied upon by the District Court in no way detracts from his consistent
testimony that he had been concerned that Roggeman might have a weapon in his
pocket.
Trooper Moore's explanation of his reasons for believing a weapon might be
causing the bulge in Roggeman's pocket was not particularly articulate, but the
trooper never backed away from the thrust of his entire testimony: that upon seeing
the bulge in Roggeman's pocket, he was concerned that Roggeman might be carrying
a weapon. Terry does not require the law-enforcement officer performing the search
to state the reasons justifying the search articulately, only that such reasons be
articulable. See United States v. Tharpe, 536 F.2d 1098, 1101 (5th Cir. 1976) (en
banc) ("Terry cannot be read to condemn a pat-down search because it was made by
than he has got an object in his pocket, am I right?
A. That's correct. Yes.
Tr. at 39-40.
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an inarticulate policeman . . . , so long as it is clear that he was aware of specific facts
which would warrant a reasonable person to believe he was in danger."), overruled
in part on other grounds, United States v. Causey, 834 F.2d 1179 (5th Cir. 1987) (en
banc). Here, the facts and circumstances would have justified a reasonable officer in
believing that the bulge might be a weapon, and that is all that Terry and its progeny
require.
Because the initial pat-down was limited to the right-front-pocket area where
Trooper Moore saw the bulge, the search was reasonable in scope, and for the reasons
we already have given, was supported by an objectively reasonable, articulable
suspicion that the bulge might have been caused by a weapon in Roggeman's pocket.
Accordingly, the search and the resulting seizure of evidence were reasonable, and
none of Roggeman's Fourth Amendment rights were violated.
III.
For the reasons stated, the District Court's order granting Roggeman's motion
to suppress all the seized evidence is reversed, and the case is remanded for further
proceedings consistent with this opinion.
HEANEY, Circuit Judge, dissenting.
I agree with the majority’s conclusion that all relevant circumstances must be
considered when determining whether Trooper Moore had a reasonable suspicion to
pat-down Roggeman’s right-front pants pocket. Moreover, because I am convinced
that this is precisely what the district court did in suppressing the fruits of the search,
I would affirm.
The district court determined that the circumstances surrounding Trooper
Moore’s pat-down search did not provide reasonable, articulable suspicion to justify
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the search. At the suppression hearing, Trooper Moore failed to provide any
information that would justify rejecting this assessment. When Roggeman was
stopped, the scene of the stop was poorly lit, and Trooper Moore testified that he
could not see the bulge in Roggeman’s pants clearly enough to suspect that it was a
weapon. Specifically, when Trooper Moore was asked why he believed Roggeman
had a weapon in his right front pocket, he replied as follows:
A: I didn’t know what the object was. I wanted to know because it
was dark and it is hard to visually observe what things are in the dark.
Q: Okay. So . . . [w]ould I be correct if I said your testimony was
that you had no reason to believe it was a weapon, but you were curious
as to what it was? Would that be fair?
A: Yes, sir.
Transcript at p. 23.
Later, when Trooper Moore was asked why he thought the bulge in
Roggeman’s pocket might be a weapon, he responded: “[I]t was concealed in his
pocket. I was curious as to what it was.” Id. at 39. Thereafter, Trooper Moore
admitted that the only reason he suspected Roggeman of carrying a weapon was
because he had an object in his pocket. Id. at 40.
The majority has thoroughly reviewed Trooper Moore’s testimony, and has
determined that Trooper Moore unequivocally testified that he believed the bulge in
Roggeman’s pocket might have been a weapon. I must respectfully disagree with the
majority’s assessment of the testimony. At various times during his testimony,
Trooper Moore indicated that the size and shape of the bulge in Roggeman’s pocket
led him to conclude that the bulge might be a weapon. Yet, at other times, Trooper
Moore indicated that he couldn’t clearly see the bulge, and that he had no reason to
suspect that a weapon was present. Even when asked directly, Trooper Moore failed
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to indicate why the size and shape of the bulge led him to conclude it could have been
a weapon, other than to vaguely assert that his training and experience led him to
conclude that it “possibly could” be a weapon. Tr. at 39-40. Despite the uncertain
nature of Trooper Moore’s testimony, the majority asserts that he “was unequivocal
that he believed the bulge could have been caused by a weapon” and that any
statements indicating otherwise were meant to “disclaim[] that he had possessed
actual knowledge that the bulge was a weapon.” I cannot accept the majority’s
analysis. Trooper Moore’s testimony, when read as a whole, was equivocal. At times
Trooper Moore stated that he believed Roggeman might be armed, while at other
times he indicated that he did not have any reason to believe that Roggeman was
armed, and that he was merely curious as to what was in Roggeman’s pants.
Therefore, there is no reason to conclude that the district court’s analysis of the
import of this testimony was clearly erroneous.
In my view, the passages cited above represent the crux of Trooper Moore’s
testimony: it was dark; Trooper Moore saw a small bulge in Roggeman’s pants
pocket; he didn’t know what the bulge was; he was curious because it theoretically
could have been a weapon; but, he did not observe anything specific to cause him to
suspect that the bulge was being created by a weapon.
The Supreme Court has made clear that an officer’s “reasonable belief” that a
suspect is armed and dangerous must be based on “specific and articulable” facts
before he conducts a pat-down search. Terry v. Ohio, 392 U.S. 1, 21 (1968). None
of the cases cited by the majority, including Mimms, indicate that the presence of a
small amorphous bulge in the front pocket of a pair of pants, alone, provides
reasonable suspicion that a suspect is armed. Cf. Pennsylvania v. Mimms, 434 U.S.
106, 107 (1977) (noting that a large bulge in jacket of a suspect permitted an officer
to conclude that the suspect was armed, justifying a pat-down search); United States
v. Baker, 78 F.3d 135, 136-137 (4th Cir. 1996) (noting that an officer had a
reasonable belief that a bulge in a suspect’s waistband could have been made by a
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weapon when the officer clearly observed a “triangular shaped bulge underneath
the front of [the suspect’s] shirt, near the waistband of his pants”) (emphasis
added); United States v. Brooks, 2 F.3d 838, 841-842 (8th Cir. 1993)(holding that
officers had a reasonable, particularized suspicion to conduct a pat-down search when
they observed a noticeable bulge in the right front pants pocket of an individual who
was suspected of participating in a recent armed robbery); United States v.
$84,000 United States Currency, 717 F.2d 1090, 1097-1099 (7th Cir. 1983) (holding
that a pat-down search was justified when officers observed a bulge in the top of a
suspect’s boot because the bulge was in area where “weapons are often secreted;” the
suspect’s appearance and conduct conformed with a DEA drug courier profile; the
suspect exhibited “furtive and anxious movement” throughout an airport terminal;
and the officers were alone with the suspect and his accomplice in a “compact, dark
non-public area illuminated only by ‘Exit’ signs”); United States v. Elsoffer, 671 F.2d
1294, 1295, 1299 (11th Cir. 1982) (holding that officers had probable cause to arrest
an individual in an airport because the individual had a bulge “shaped like a good-
sized softbound book on the front of [his] trousers from waistline to crotch”).
The facts of the cases cited above are distinguishable from the facts of this
case. The bulge in Roggeman’s pants was small, and located in his front pocket, not
in an area where a gun would commonly be concealed, such as the waistband of his
pants, his jacket, or the top of his boot. Roggeman was not suspected of anything
other than driving a car with a faulty muffler. He was not acting suspiciously. By
itself, the simple observation of the bulge in Roggeman’s pocket did not provide
reasonable suspicion to conduct a pat-down search. Something more was needed, as
almost everyone carries something in their pocket. A subjective suspicion premised
upon a particular officer’s training and experience is not enough. See U.S. v.
Campbell, 843 F.2d 1089, 1093-94 (8th Cir. 1988) (“[O]fficers must be acting on
facts directly relating to the suspect or the suspect’s conduct and not just on a ‘hunch’
or on circumstances which ‘describe a very broad category of predominantly innocent
travelers’”) (citation omitted); Baker, 78 F.3d at 137 (“An officer’s belief must be
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based not on subjective hunches but on information sufficient to cause a reasonably
prudent person under the circumstances to believe that either his safety or that of
others is in danger”) (citations omitted).
Here, the record is devoid of any facts which would suggest to a reasonably
prudent person that the bulge was a concealed weapon. I do not believe that we have
come to the point in this country where simply carrying a small object in one’s pants
pocket should justify being subjected to pat-down searches by law enforcement
personnel. Therefore, I must dissent.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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