United States v. Gregory Roggerman ( 2002 )

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 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 Rogge-man 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 ... [wjould 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 Rog-geman’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 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 Rogge-man’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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 98 S.Ct. 330, 54 L.Ed.2d 331 (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 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. Rogge-man 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 Rog-geman’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) (“[0]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 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.