United States v. Stephen E. Plummer ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2951
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Stephen E. Plummer, *
*
Appellant. *
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Submitted: March 14, 2005
Filed: June 2, 2005
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Before MORRIS SHEPPARD ARNOLD, BOWMAN, and GRUENDER, Circuit
Judges.
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GRUENDER, Circuit Judge.
Stephen Plummer entered a conditional plea of guilty to one count of
possessing a firearm during and in relation to a drug trafficking crime, in violation of
18 U.S.C. § 924(c). He entered the conditional guilty plea after the district court
denied his motion to suppress evidence and statements obtained as a result of a
warrantless search of his car.1 On appeal, Plummer argues that the district court erred
in denying his motion to suppress. We affirm.
I. BACKGROUND
On March 25, 2003, Corporal John A. Sampietro, Jr. of the Missouri State
Highway Patrol received a dispatch report that an ambulance crew was following a
small car with a single occupant–a white male–traveling westbound on U.S. Highway
60. It was reported that the driver of the car, later identified as Plummer, was driving
erratically from lane to lane and appeared to be smoking a marijuana cigarette. As
he was driving east on Highway 60, Trooper Sampietro located a car fitting the
description in the report heading west on Highway 60 with an ambulance following
behind. Trooper Sampietro crossed the highway and began heading west. Plummer
then turned into the parking lot of a convenience store on Highway 60 and parked
behind the store. Trooper Sampietro pulled in behind Plummer’s car in the parking
lot. The ambulance crew indicated to Trooper Sampietro that he had correctly
identified the car.
As Plummer walked toward the store entrance, Trooper Sampietro got out of
his patrol car, identified himself as a highway patrol officer, and asked Plummer for
his license. Without saying anything, Plummer got back into his car and leaned
toward the passenger’s seat. At that point, Trooper Sampietro saw a rifle lying across
the passenger’s seat and told Plummer to get out of the car. Plummer complied, and
Trooper Sampietro told Plummer that he needed to see his driver’s license. Again,
without saying anything, Plummer reached into the car toward the passenger’s seat
1
The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable James
C. England, United States Magistrate Judge for the Western District of Missouri. The
Honorable Richard E. Dorr, United States District Judge for the Western District of
Missouri, accepted Plummer’s conditional guilty plea and sentenced him.
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where the rifle was lying. Trooper Sampietro drew his service weapon, pointed it at
Plummer, and told him to get out of the car and not to get back in. Plummer replied
that he was trying to get his driver’s license. Trooper Sampietro told Plummer not to
get back in the car because there was a weapon in the car. Plummer responded that
the rifle was not loaded.
After Plummer got out of the car, Trooper Sampietro reholstered his weapon
and called for back-up officers. He took the rifle from the passenger’s seat and
discovered it was loaded. After the back-up officers arrived, Trooper Sampietro made
a protective search of the car, checking for additional weapons.2 He found a utility
knife in a storage compartment on the driver’s-side door and a machete and a set of
digital scales on the back seat. Trooper Sampietro noticed white residue and “green
material” consistent with marijuana residue on the scales and utility knife. Trooper
Sampietro arrested Plummer, handcuffed him, read him his Miranda rights, and
conducted a thorough search of his car.
Underneath the front passenger’s seat, Trooper Sampietro found a Colgate
shaving cream can with a false bottom. He unscrewed the can and found several bags
containing methamphetamine and marijuana. He also found scorched aluminum foil
and $1,700 in cash in Plummer’s pocket. Plummer told Trooper Sampietro that he
had the cash because he was in financial difficulty. On the way to jail, Plummer
admitted that he had been smoking marijuana while driving. Plummer also told
Trooper Sampietro that he had a history of drug use and that he was back on drugs
because of a disagreement with his girlfriend.
2
The record is unclear as to Plummer’s exact location while Trooper Sampietro
waited for back-up and while he conducted a protective search of Plummer’s car.
However, we do know that Plummer was not handcuffed during that time. As noted
below, he was not handcuffed until after he was arrested.
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II. DISCUSSION
On appeal, Plummer only challenges Trooper Sampietro’s initial search of his
car for additional weapons. Plummer does not challenge either Trooper Sampietro’s
initial investigative stop based on the report of the ambulance crew or Trooper
Sampietro’s more thorough search of the car and search of his person after finding the
machete, utility knife and scales. Plummer’s only argument is that the district court
erred in denying his suppression motion because Trooper Sampietro’s initial search
of the car was not based on officer safety, and therefore, all of the evidence
subsequently obtained was “fruit of the poisonous tree” seized in violation of his
Fourth Amendment rights. “When reviewing a denial of a motion to suppress, we
examine the factual findings underlying the district court’s conclusion for clear error
and review de novo the ultimate question of whether the fourth amendment has been
violated.” United States v. Terry, 400 F.3d 575, 579 (8th Cir. 2005).
In Terry v. Ohio, 392 U.S. 1, 24 (1968), the Supreme Court held that a police
officer may conduct a protective search for weapons if the officer has an articulable
suspicion that an individual is armed and dangerous. See United States v. Shranklen,
315 F.3d 959, 961 (8th Cir. 2003). Terry involved the pat-down search of an
individual and not the search of a vehicle, but “its principle (officer safety searches)
was eventually extended to include vehicle searches.” United States v. Rowland, 341
F.3d 774, 783 (8th Cir. 2003) (citing Michigan v. Long, 463 U.S. 1032, 1049 (1983)).
In Long, the Supreme Court noted that “roadside encounters between police and
suspects are especially hazardous,” and held that a limited search of the passenger
compartment of a vehicle “is permissible if the police officer possesses a reasonable
belief . . . that the suspect is dangerous and the suspect may gain immediate control
of weapons.” Long, 463 U.S. at 1049. “The sole justification of the search . . . is the
protection of police officers and others nearby . . . .” Id. n.14 (quoting Terry, 392
U.S. at 29).
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The test for reasonableness is an objective one. United States v. Cummins, 920
F.2d 498, 502 (8th Cir. 1990). In the Eighth Circuit, the validity of a protective
search “does not depend upon the searching officer actually fearing the suspect is
dangerous; rather, such a search is valid if a hypothetical officer in the same
circumstances could reasonably believe the suspect is dangerous.” Rowland, 341
F.3d at 783 (citing United States v. Wald, 216 F.3d 1222, 1227 (10th Cir. 2000),
which notes that the circuits are split on the issue of whether a particular officer’s
actual motivation is relevant to the reasonableness analysis); see Cummins, 920 F.2d
at 502 (applying this Circuit’s objective reasonableness standard in a protective
search case, the Court noted that “our conclusion is not changed by [the officer’s]
testimony that he had no subjective fear that [the defendants] were armed.”).
As noted above, Plummer’s only argument on appeal is that Trooper
Sampietro’s initial search of the car for additional weapons was not a permissible
protective search because it was not based on officer safety. More specifically, he
contends that Trooper Sampietro could not have been concerned for his safety
because by the time he conducted the search, he had reholstered his gun and back-up
officers had arrived at the scene. Plummer’s argument improperly focuses on whether
Trooper Sampietro was actually motivated by concern for his own personal safety
when he searched Plummer’s car for additional weapons. Plummer’s argument has
no merit because, as we discussed above, a police officer’s subjective motivation is
irrelevant to our Circuit’s objective reasonableness analysis.
Based on the “specific and articulable facts” surrounding Trooper Sampietro’s
search of Plummer’s car for additional weapons and the “rational inferences from
those facts,” we conclude that the search was reasonably warranted. See Long, 463
U.S. at 1049 (quoting Terry, 392 U.S. at 21). Plummer twice reached toward the rifle
on the passenger’s seat of his car without explaining to Trooper Sampietro what he
was doing. He also lied to Trooper Sampietro about the rifle not being loaded. In
addition, based on the report of the ambulance crew, Trooper Sampietro was dealing
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with an individual who may have been on drugs. A hypothetical officer in the same
situation as Trooper Sampietro could reasonably believe that Plummer was dangerous
and that there may have been additional weapons in the car over which Plummer
could have gained immediate control if he were to break away from police control or
if he were permitted to re-enter his car. See id. at 1051-52.
The legal discovery of the machete and the utility knife and digital scales with
white and green residue supported Trooper Sampietro’s warrantless search of the
remainder of Plummer’s car under the “automobile exception” to the Fourth
Amendment’s warrant requirement. See Rowland, 341 F.3d at 784 (noting that the
“automobile exception” applies where police officers have probable cause to believe
a vehicle contains contraband or other evidence of a crime before they search).
Trooper Sampietro’s more thorough search of Plummer’s car and his search of
Plummer’s person also constituted a valid search incident to arrest. See United States
v. Poggemiller, 375 F.3d 686 (8th Cir. 2004); United States v. Pratt, 355 F.3d 1119,
1124 (8th Cir. 2004) (“The search of an arrestee’s person has long been upheld as
reasonable under the Fourth Amendment . . . .”).
III. CONCLUSION
For the reasons discussed above, we affirm the district court’s denial of
Plummer’s suppression motion and affirm Plummer’s conviction.
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