United States v. Renard Collier , 419 F. App'x 682 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3144
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Renard T. Collier, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 12, 2011
Filed: June 2, 2011
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Before WOLLMAN and MELLOY, Circuit Judges, and MILLER,1 District Judge.
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PER CURIAM.
Renard Collier pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g), reserving the right to appeal the district court’s2
denial of his motion to suppress evidence. On appeal, Collier renews his claim that
the search that brought the evidence at issue to light violated the Fourth Amendment
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
2
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable John
T. Maughmer, United States Magistrate Judge for the Western District of Missouri.
and the evidence should therefore be suppressed. Concluding that the search was
lawful, we affirm.
I.
On July 30, 2009, Sergeant Eric Stucker of the Kansas City Police Department
(KCPD) worked an overnight patrol shift by himself. Shortly before midnight, he
observed a car enter a parking lot of a gas station. He entered the car’s license plate
on the computer in his patrol car and learned that a male subject with an outstanding
assault warrant was associated with it. He observed two occupants in the vehicle, a
female driver and male passenger, and decided to initiate a traffic stop to determine
whether the individual with the assault warrant was present. He activated the lights
and sirens of his vehicle, at which point a video recorder on his dashboard
automatically activated. As the car pulled to the side, Stucker saw the passenger
“making overt actions . . . leaning toward his left-hand side and possibly leaning his
seat further back.” Tr. Mot. Suppress H’rg, at 7. In Stucker’s experience, such
actions were “consistent with concealing possibly contraband or concealing a weapon
of some sort.” Id. Stucker exited his patrol car and approached the vehicle on the
passenger side. As he drew closer, the occupants came fully into view and Stucker
recognized Collier, the passenger, whom he had previously arrested for a narcotics
violation. At that time, he realized that the male associated with the warrant was not
in the vehicle.
Stucker asked for and obtained the occupants’ identification, then remained on
the passenger side of the car while calling for backup on his radio. Another police
officer arrived on the scene and stationed himself on the passenger side of the vehicle,
while Stucker returned to his car to check the occupants’ information on the police
computer. He determined that neither Collier nor his female companion had
outstanding warrants.
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Stucker returned and instructed the driver to step out of the vehicle. The other
officer remained on the passenger side as Stucker and the driver walked back toward
his police car, whereupon he asked, “Who is [Collier] to you?” She indicated that he
was a friend. When Stucker asked her if there was anything illegal in the vehicle, she
responded that she was not aware of anything illegal. He asked to search the vehicle,
to which she replied: “I’d rather you not.” Tr. Mot. Suppress H’rg, at 10. He
described the movements Collier had made as he first approached the vehicle and
advised her to wait near the patrol car while he investigated further.
Stucker came up to the passenger side and instructed Collier to step out of the
vehicle, explaining at the suppression hearing that “[i]t was my belief that there was
a high probability that a weapon would be - was being concealed, and for officer
safety reasons, for both the other officers and myself, I had him step out in order to
perform a frisk for weapons.” Tr. Mot. Suppress H’rg, at 12. Stucker had to repeat
the instruction to exit the vehicle a number of times before Collier complied. Stucker
handcuffed Collier and told him to spread his legs, at which point a nine millimeter
pistol with sixteen rounds in the magazine fell out of Collier’s pants. From the time
Stucker initiated the stop to the time when the gun hit the ground, roughly five and a
half minutes had passed. Stucker secured the pistol and continued the search,
discovering approximately five grams of marijuana on Collier’s person.
Collier was charged with being a felon in possession of a firearm and moved
to suppress the gun. At the suppression hearing, the government played the video of
the traffic stop recorded by the camera mounted in Stucker’s police car. Stucker
recounted the sequence of steps that led to the discovery of the gun. He testified that
he believed that contraband or weapons may have been concealed in the car based on
the following: his personal knowledge of Collier’s prior narcotics violations; his
understanding, buoyed by experience, that narcotics are often associated with
weapons; and, in particular, his observations of Collier’s movements on approaching
the car. He indicated that he had frisked Collier for “officer safety reasons” to ensure
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that he was not armed. The magistrate judge concluded that Stucker had a reasonable
suspicion to frisk Collier and that his actions did not violate the Fourth Amendment.
The district court adopted the magistrate judge’s recommendation and report and
denied the motion to suppress. Following the entry of Collier’s conditional plea of
guilty, the district court sentenced him to 30 months’ imprisonment. This appeal
followed.
II.
Collier argues that the district court erred in denying the motion to suppress the
gun that dropped from his pants while Stucker frisked him. When reviewing the
denial of a motion to suppress evidence, we review the legal conclusions de novo and
the facts underlying that decision for clear error. United States v. Payne, 534 F.3d
948, 950 (8th Cir. 2001) (citation omitted).
Collier does not challenge the lawfulness of the initial traffic stop. He argues
that once Stucker realized that the individual whose warrant was associated with the
vehicle was not present, he lacked reasonable suspicion that criminal activity was
afoot or that Collier posed a threat to officer safety. Thus, Collier maintains, Stucker
had no basis to expand the scope of the stop and the ensuing detention and search that
yielded the gun violated the Fourth Amendment.
An officer who makes a lawful stop of a vehicle is entitled to conduct an
investigation reasonably related in scope to the circumstances that prompted it.
United States v. Shafer, 608 F.3d 1056, 1062 (8th Cir. 2010) (citation omitted). The
officer has the authority to inquire into the driver’s destination, to check the driver’s
license and registration, or to request that the driver step out of the vehicle. United
States v. Payne, 534 F.3d 948, 951 (8th Cir. 2008) (citation omitted). The stop may
last as long as reasonably necessary to conduct this routine investigation, conduct a
criminal history search, and issue a citation if warranted. Id. It may become unlawful,
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however, “‘if it is prolonged beyond the time reasonably required to complete’ its
purpose.” Shafer, 608 F.3d at 1062 (quoting Illinois v. Caballes, 543 U.S. 405, 407
(2005)).
We have recognized that “police officers ‘may order out of a vehicle both the
driver and any passengers [and] perform a “patdown” of a driver and any passengers
upon reasonable suspicion that they may be armed and dangerous.’” United States v.
Oliver, 550 F.3d 734, 737 (8th Cir. 2008) (alteration in original) (quoting Knowles v.
Iowa, 525 U.S. 113, 118 (1998)). “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.” Terry v. Ohio, 392 U.S. 1, 27 (1968). We determine whether an officer has
reasonable suspicion by looking at the totality of the circumstances, taking into
account the officer’s experience. Shafer, 608 F.3d at 1062 (quotation omitted).
In light of the totality of the circumstances recounted above, we conclude that
Stucker had reasonable suspicion of a potential threat to officer safety that justified
his decision to frisk Collier after he had determined the subject of the outstanding
warrant associated with the car was not present. Stucker initiated this traffic stop late
at night, while patrolling alone, to discern whether a male subject with an outstanding
assault warrant was present. He observed surreptitious actions by the passenger, as
if he were attempting to conceal something behind or beneath his seat. He recognized
Collier from a previous narcotics violation for which Collier had been arrested. At the
suppression hearing, Stucker testified regarding his knowledge “that narcotics are
often associated with weapons,” Tr. Mot. Suppress H’rg, at 12, an awareness that we
have credited as a ground for heightened concern for officer safety. See United States
v. Crippen, 627 F.3d 1056, 1063 (8th Cir. 2010) (citing United States v. Bustos-
Torres, 395 F.3d 935, 943 (8th Cir. 2005)). Once Stucker realized that the individual
associated with the warrant was not present, he could not expand the scope of the
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investigation on that ground. But he could permissibly investigate further based on
his reasonable suspicion that Collier posed a threat to officer safety.
Collier argues that “Stucker’s actions were completely inconsistent with the
belief that Mr. Collier was armed and dangerous[.]” Appellant’s Br., at 11. We
disagree. Stucker testified that, as a precaution, he had not asked either occupant to
exit the vehicle while he was the only officer on the scene. Once the requested backup
arrived, Stucker first questioned the female driver while the other officer positioned
himself near Collier. After the driver declined to consent to a search of the vehicle,
Stucker determined that, based on his observation of Collier’s furtive movements, he
needed to investigate further and then approached Collier and instructed him to exit
the vehicle as the other officer watched. We conclude that Stucker’s actions were
consistent with a concern for officer safety and were an outgrowth of the reasonable
suspicion that Collier possessed contraband or was armed.
This conclusion comports with prior case law, both that in our circuit and that
in other circuits. See Oliver, 550 F.3d at 737 (collecting cases, including United
States v. Davis, 457 F.3d 817, 822-23 (8th Cir. 2006) (concluding that an officer who
observed a passenger in a vehicle “rise off the seat and place his hand behind his back
as if he were placing something underneath or behind him” had reasonable suspicion
to conduct a search); United States v. Woodall, 938 F.2d 834, 837 (8th Cir. 1991)
(concluding that an officer who observed the defendant’s “suspicious movements to
the floorboard” and who had “information that the defendant was manufacturing drugs
gave the officer reason to believe that [he] may have been carrying a weapon” and was
therefore justified in performing a pat down search)).
Finally, ordering Collier out of the car to frisk him did not unreasonably extend
the duration of the stop so as to call its constitutionality into question. See Arizona
v. Johnson, 129 S. Ct. 781, 788 (2009) (“An officer’s inquiries into matters unrelated
to the justification for the traffic stop . . . do not convert the encounter into something
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other than a lawful seizure, so long as those inquires do not measurably extend the
duration of the stop.”) Stucker had a legitimate basis for further investigation, in light
of which the duration of the stop—five and one half minutes—was reasonable.
Accordingly, we conclude that the district court did not err in denying Collier’s
motion to suppress.
The conviction is affirmed.
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