United States v. Tuggle

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 14, 2008
No. 07-30814 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
BOBBY TUGGLE, JR
Defendant - Appellee
Appeal from the United States District Court
for the Middle District of Louisiana, Baton Rouge
USDC No. 3:07-CR-50-1
Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Defendant-Appellee Bobby Tuggle, Jr., was charged with possessing a
firearm as a convicted felon. The government appeals the district court’s
granting of Tuggle’s motion to suppress the seized firearm. We reverse and
remand.
I.
On March 7, 2007, Bobby Tuggle, Jr., was indicted on one count of being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On April
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-30814
19, 2007, Tuggle filed a motion to suppress the firearm, arguing that it was the
fruit of an unconstitutional search and seizure. A hearing on the motion was
held on August 21, 2007. Officer Timothy Wilkinson was the only witness to
testify at the hearing. He testified to the following events, which, according to
the government, establish reasonable suspicion for the Terry stop and frisk of
Tuggle. See Terry v. Ohio, 392 U.S. 1 (1968).
At the time of the stop, Officer Wilkinson, an officer in the auto-theft
division of the Baton Rouge Police Department (“BRPD”), had been investigating
an auto-theft ring at the Baton Rouge Metropolitan Airport where fifty to sixty
vehicles had been stolen. On January 4, 2006, it was reported that a couple of
the stolen vehicles, as well as the suspects involved, were located at 2915
Chippewa Street, and Wilkinson proceeded to that address. Wilkinson had
specific information that the boyfriend of the woman living at the Chippewa
residence was involved in the auto-theft ring. Although he had the boyfriend’s
name, Wilkinson did not have a physical description.
The Chippewa residence, according to Wilkinson, was located in a high
crime area known for narcotics and street crimes. Specifically, Wilkinson
testified that several years prior to the auto-theft investigation, he had been
involved in narcotics arrests on Chippewa, and that more recently he had
examined police reports indicating narcotics activity there. Wilkinson was also
aware of a shooting that occurred on the particular block involved in this case.
However, he “couldn’t tell [defense counsel] for sure” whether narcotics arrests
had been made in the last two years on Chippewa Street.
When Wilkinson arrived on Chippewa, he made an initial pass by the
address in an unmarked police vehicle. He noticed two vehicles parked in the
yard of the residence, “even [with], but towards the back part of the house.”
Wilkinson copied down the license plate number of one of the vehicles visible
from the road, ran the plate, and confirmed that the vehicle was stolen. He then
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No. 07-30814
notified the BRPD Uniform Patrol Division and requested assistance in
returning to the residence to investigate and recover the stolen vehicle.
Within approximately ten to fifteen minutes, Wilkinson, accompanied by
other BRPD officers, returned to the Chippewa residence where he had
identified the stolen vehicle. BRPD Officer Steven Parks, who was traveling in
a marked BRPD car, drove up to the residence behind Wilkinson. Additional
BRPD officers in marked units arrived upon the scene within a “matter of
seconds.” As Wilkinson and Parks approached the residence, they observed a car
stopped in the middle of the roadway. Its motor was running and a “black male,”
later identified as Tuggle, was leaning into its driver’s side window. As the
officers pulled up, the vehicle “sped away.” At that point, Tuggle turned and
“briskly walked away” from the officers and toward the stolen vehicle parked in
the yard of the Chippewa residence. According to Wilkinson, based on his
experience and the criminal nature of the neighborhood, Tuggle’s posture and
behavior at the car were consistent with a street-level narcotics transaction.
Further, because Tuggle subsequently approached the stolen vehicle, Wilkinson
testified that he inferred that Tuggle might be one of the suspects involved in the
auto-theft ring.
According to Wilkinson, Tuggle traveled about ten to fifteen feet away
from the street and into the yard of the residence and was approximately fifteen
feet away from the stolen vehicle when the officers called out to him to come
back to their location. Yielding to their command, Tuggle turned around and
headed back to the street. Wilkinson testified that when Tuggle reached the
officers, he was “very nervous” and “shaking uncontrollably.” The officers
conducted a patdown and discovered that Tuggle was carrying a .38 caliber
revolver in his back left pocket. Tuggle was placed under arrest for illegally
carrying a weapon. Thereafter, the officers recovered both vehicles in the yard,
after confirming the second was also stolen.
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No. 07-30814
Before making its decision on the motion to suppress, the district court
asked Wilkinson whether Chippewa Street had sidewalks. Wilkinson replied
that it did not. The district court then surmised that anyone walking down the
side of the street of the Chippewa residence would necessarily be walking toward
the stolen vehicle. Wilkinson responded that a person simply walking down the
street would not need to travel approximately fifteen feet into the yard of the
Chippewa residence and come within fifteen feet of the stolen vehicle, as Tuggle
allegedly had. The district court was also curious about what happened with the
car and driver who had “sped away.” Wilkinson had testified that BRPD Officer
Gewalt went after the vehicle, and the district court was interested in knowing
what came of the stop. It found the fact that Wilkinson did not question Gewalt
about his stop of the vehicle odd, stating, “If you thought you had a drug deal
why didn’t you talk to one of the officers that followed up on the drug deal?”
Wilkinson replied, “Well [Gewalt] came back to our location within just a couple
of minutes[,] and there was nothing to the stop that he had made.”
At the conclusion of the hearing, the district court found that the police
lacked reasonable suspicion for a Terry stop and frisk of Tuggle on the date in
question. First, discussing the “supposed drug deal,” the district court stated:
[T]he reasonable suspicion on that point is that [Tuggle]
was standing at or leaning in the driver’s window of a
vehicle that was stopped in the middle of the street.
And when the police pulled up the vehicle pulled off,
sped off and [Tuggle] walked away in a [manner] that
was described as a brisk walk. None of those facts
taken alone or together would provide reasonable
suspicion that a drug offense was either occurring or
about to occur. After the officers pulled up there was
testimony that one of the officers pursued and stopped
the car that had sped away. But Officer Wilkinson
couldn’t say what happened after that because
apparently nothing was told to him by the officer who
stopped the vehicle. It strikes me as strange that if you
think there’s a drug deal going on, and the car allegedly
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No. 07-30814
involved in the drug deal is stopped, seems to me
somebody ought to say something about what happened
after the car was stopped, why there wasn’t an arrest of
the driver. Or if there was an arrest of the driver, what
was found, and that sort of thing. There’s none of that
in this case.
The district court next discussed the “other articulable reason for the
stop”—the fact that Tuggle briskly walked away from the officers and toward the
stolen vehicle. The district court concluded that this evidence similarly failed
to establish reasonable suspicion to believe criminal activity was afoot. In
making that determination, the district court noted that walking toward a stolen
vehicle is not a crime in itself, that there was no evidence connecting Tuggle to
the stolen vehicle, and that the cars were parked in a yard apparently open to
the street so that “anybody walking in that area was going to walk either
towards or in the area of those stolen vehicles.” The district court then turned
to the legality of the frisk and concluded that “there’s no evidence at all to
indicate that the officers had a reasonable belief that they were dealing with an
armed individual prior to the time that the defendant was stopped.”
Accordingly, the district court granted Tuggle’s motion to suppress the seized
firearm. Thereafter, the government filed a timely notice of appeal.
II.
“In reviewing a district court’s ruling on a motion to suppress, we review
questions of law de novo, and accept the trial court’s factual findings unless they
are clearly erroneous.” United States v. Castro, 166 F.3d 728, 731 (5th Cir. 1999)
(en banc). “In reviewing findings of fact, we view the evidence in the light most
favorable to the party prevailing below,” which in this case is the defendant,
Tuggle. United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005) (citing
United States v. Shelton, 337 F.3d 529, 532 (5th Cir. 2003)). “If this review leads
us to the ‘definite and firm conviction that a mistake has been committed[,]’ then
the district court’s factual finding must be deemed clearly erroneous.” Id. at
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No. 07-30814
429–30 (quoting Payne v. United States, 289 F.3d 377, 381 (5th Cir. 2002)). Also,
the district court’s determination of whether the facts provided reasonable
suspicion is a conclusion of law reviewed de novo. Id. at 430 (citing Ornelas v.
United States, 517 U.S. 690, 699 (1996)); see also United States v. Holloway, 962
F.2d 451, 459 (5th Cir. 1992). In evaluating the reasonableness of an officer’s
actions, “due weight” must be given to the facts and inferences viewed “in light
of [the officer’s] experience.” United States. v. Michelletti, 13 F.3d 838, 841 (5th
Cir. 1994) (en banc) (quoting Terry, 392 U.S. at 27).
III.
The government challenges the district court’s decision to grant the motion
to suppress, arguing first that the district court erred by addressing and
rejecting Wilkinson’s observations separately, rather than considering the
“totality of the circumstances of the stop” in its analysis. The government next
argues that the district court erred by focusing on Wilkinson’s failure to inquire
about the fate of the vehicle that sped off as a basis for discounting Wilkinson’s
observations. The government submits that the failure to learn about, or
present testimony of, any evidence recovered after the stop does not negate
Wilkinson’s suspicions of narcotics trafficking based on the facts observed at the
time of the stop. Further, contrary to the district court’s conclusion that no facts
were presented supporting Wilkinson’s belief that Tuggle could be a member of
the auto-theft operation, the government points to Tuggle’s hurried retreat
toward the stolen car. And, finally, the government avers that the officers
reasonably believed that Tuggle was armed and dangerous based in part on their
suspicion of narcotics trafficking since “weapons are tools of the trade of
narcotics traffickers.”
In response, Tuggle asserts that the district court’s decision to suppress
the firearm evidence was proper considering that the government only proved
that there was a stolen vehicle in the area where Tuggle was located, and that
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No. 07-30814
Tuggle was walking in that direction. Tuggle maintains that this was
insufficient to warrant reasonable suspicion that Tuggle was, or was about to be,
engaged in criminal activity. Tuggle also notes that although Wilkinson testified
to the suspected narcotics trafficking at the hearing, he did not include his
suspicions in his police report. According to Tuggle, this failure undermined
Wilkinson’s credibility with the district court. Tuggle further maintains that the
district court correctly found that there was simply no evidence on the issue
whether the officers had reasonable suspicion to believe that Tuggle was armed
and dangerous.
The legality of police investigatory stops is tested in two parts. United
States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). We “first
examine whether the officer’s action was justified at its inception, and then
inquire whether the officer’s subsequent actions were reasonably related in scope
to the circumstances that justified the stop.” Id. (citing Terry, 392 U.S. at19–20). Pursuant to Terry, “[p]olice officers may briefly detain individuals on the
street, even though there is no probable cause to arrest them, if they have a
reasonable suspicion that criminal activity is afoot. The Fourth Amendment
requires only some minimum level of objective justification for the officers’
actions—but more than a hunch—measured in light of the totality of the
circumstances.” Michelletti, 13 F.3d at 840 (en banc) (citations omitted).
“Reasonable suspicion must be supported by particular and articulable facts,
which, taken together with rational inferences from those facts, reasonably
warrant an intrusion.” Id. (citation omitted).
Of course, “the policeman making a reasonable investigatory stop should
not be denied the opportunity to protect himself from attack by a hostile
suspect.” Adams v. Williams, 407 U.S. 143, 146 (1972). The Court in Terry thus
held that “[w]hen an officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed and presently
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No. 07-30814
dangerous to the officer or to others,” he may conduct a limited protective search
for concealed weapons. Terry, 392 U.S. at 24. An officer need not be certain that
an individual is armed; the issue is whether a reasonably prudent man could
believe, based on “specific and articulable facts,” that his safety or that of others
is in danger. Michelletti, 13 F.3d at 840–41 (citing Terry, 392 U.S. at 27).
“In assessing the reasonableness of an officer’s actions, it is imperative
that the facts be judged against an objective standard: would the facts available
to the officer at the moment of the seizure or the search warrant a man of
reasonable caution in the belief that the action taken was appropriate?” United
States v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc) (quoting Terry,
392 U.S. at 22) (internal quotation marks omitted). This inquiry does not
depend on the “officer’s state of mind, or his stated justification for his actions.”
Id. (citing Maryland v. Macon, 472 U.S. 463, 470–71 (1985)). Instead, the
Fourth Amendment is satisfied “[a]s long as all the facts and circumstances,
viewed objectively, support the officer’s decisions.” Id. In short, “[w]e must
attempt to put ourselves in the shoes of a reasonable police officer as he or she
approaches a given situation and assesses the likelihood of danger in a
particular context.” Id.A.
In finding that the officers’ initial stop of Tuggle was not justified by
reasonable suspicion, the district court erroneously split the evidence into two
discrete events—the suspected drug deal and the quick retreat toward the stolen
vehicle. The correct approach under Terry is to objectively examine the “totality
of the circumstances.” And, although the standards of reasonableness are “not
readily . . . reduced to a neat set of legal rules,” Ornelas, 517 U.S. at 695–96
(citation omitted), some factors considered germane to a reasonable suspicion
analysis include: whether the area where the stop occurred was a high crime
area or one “of expected criminal activity,” Illinois v. Wardlow, 528 U.S. 119, 124
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No. 07-30814
(2000); whether the individual engaged in “unprovoked flight upon noticing the
police,” id.; and whether the individual looked nervous or made furtive gestures
or suspicious movements, United States v. Watson, 953 F.2d 895, 897 (5th Cir.
1992). For example, the defendant in Wardlow fled upon seeing police cars
converge in an area known for having heavy drug activity. 528 U.S. at 122. In
analyzing whether the officers had reasonable suspicion to pursue the defendant,
the Supreme Court noted that while a person’s presence in a high crime area is
not enough, standing alone, to create reasonable suspicion, it is among the
relevant contextual factors that may be considered. Id. at 124. Likewise,
“nervous, evasive behavior” is appropriate to a reasonable suspicion analysis,
explained the Court. Id. “Headlong flight—wherever it occurs—is the
consummate act of evasion: It is not necessarily indicative of wrongdoing, but
it is certainly suggestive of such.” Id.At the suppression hearing in this case, Wilkinson, who had been a
member of BRPD for twenty years—ten years in auto-theft, eight years in
Uniform Patrol, and two years in General Detectives Division—testified that he
was cognizant of the criminal characteristics of the Chippewa neighborhood
when he proceeded to the residence to investigate the auto-theft ring. The
district court was unwilling to credit this testimony, stating, “Where is my
evidence that this was a high crime area? The officer was asked about that and
the best he could [ ] tell me [was that] a couple of years ago, there was some drug
deals, as far as he knew.” The district court was referring to Wilkinson’s
admission on cross-examination that he had no definitive information regarding
narcotics arrests made on that block within the past two years. In focusing on
this admission, the district court disregarded Wilkinson’s earlier testimony
about the neighborhood’s criminal reputation. In particular, Wilkinson testified
that he was familiar with the criminality of the area, as he had been with BRPD
for twenty years; that he had examined police reports detailing recent criminal
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No. 07-30814
activity in the area before driving out to the Chippewa residence; that he had
made prior arrests for narcotics activities on Chippewa Street itself; and that he
was aware of a shooting on the block where the residence was located. Looking
at the evidence on the whole, even in the light most favorable to Tuggle, we
conclude that the district court clearly erred in finding that Wilkinson provided
no evidence that this was a high crime neighborhood. Moreover, rather than
ignoring the criminal nature of the neighborhood in its Terry analysis, the
district court should have recognized, at a minimum, that Wilkinson was aware
that the neighborhood was once regarded as “high crime.”1 See, e.g., United
States v. Beck, 602 F.2d 726, 729 (5th Cir. 1979) (considering that the officer was
conscious of the neighborhood’s high-crime characteristics along with the fact
that “there was no evidence of recent crimes in the neighborhood” in conducting
a totality of the circumstances analysis for reasonable suspicion). Still, as
previously stated, mere presence in a high crime area, without more, will not
create reasonable suspicion for a Terry stop and frisk. See Brown v. Texas, 443
U.S. 47, 52 (1979).
Wilkinson also testified that after calling for back-up and returning to the
residence with marked police vehicles, he noticed a car stopped with its engine
running in front of the residence, obstructing his path down Chippewa Street.
Tuggle was leaning into the driver’s side window at that time. Wilkinson
averred that Tuggle’s posture beside the stopped car was consistent with a
street-level drug transaction. Although the district court accepted Wilkinson’s
factual depiction of the scene, it discounted the testimony regarding a narcotics
transaction because Wilkinson failed to follow up with Gewalt, the officer who
pursued the vehicle that fled the scene. The government argues that such an
1
We note that even if Wilkinson had been aware that arrests in the area had recently
decreased, his suspicions of continuing criminal activity there were confirmed when he
determined that one of the cars parked at the residence was in fact stolen.
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No. 07-30814
inquiry is not legally relevant because a finding of reasonable suspicion does not
depend on facts revealed only after a stop has occurred. See, e.g., United States
v. Espinoza-Seanez, 862 F.2d 526, 533 (5th Cir. 1988) (explaining that
information gathered after a stop cannot be used to justify the stop); United
States v. Frisbie, 550 F.2d 335, 338 (5th Cir. 1977) (“An observation made after
and caused by a stop cannot be bootstrapped into grounds for reasonable
suspicion warranting the stop.”). However, the district court was not attempting
to justify the stop by determining whether the vehicle was in fact cited for a
narcotics offense. Instead, the district court found it less likely that Wilkinson
actually believed a narcotics transaction was being conducted based on his
failure to talk to Gewalt and discover the fate of the vehicle that sped away.
Nonetheless, the district court’s analysis on this point is flawed for two
reasons. First, there was no need for Wilkinson to ask Gewalt what happened
in light of Wilkinson’s testimony that Gewalt returned to the Chippewa location
within “just a couple of minutes” and that, as he understood, “there was nothing
to the stop that [Gewalt] had made.” Second, and more importantly, what
Wilkinson subjectively thought is not the relevant inquiry—reasonable suspicion
must be judged against an objective standard. See Rideau, 969 F.2d at 1574 (en
banc) (“The officer’s state of mind, or his stated justification for his actions, is not
the focus of our inquiry.”) (emphasis added). “As long as all the facts and
circumstances, viewed objectively, support the officer’s decisions, the Fourth
Amendment is satisfied.” Id. Because we conclude that the other specific and
articulable facts presented, viewed objectively and as a whole, created enough
reasonable suspicion for the stop, it is unnecessary for us to determine whether
an experienced officer, such as Wilkinson, would have reasonably suspected
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No. 07-30814
criminal activity, or more specifically a narcotics transaction, solely from
Tuggle’s interaction with the driver of the stopped car.2
On that note, we turn our attention to Wilkinson’s testimony that upon the
officers’ arrival in marked police cruisers, the car running idle in the roadway
“sped off,” and Tuggle similarly turned and briskly walked into the yard of the
residence. Again, the district court accepted the validity of these observations,
but suggested in its Terry analysis that because Tuggle did not run from the
police, it was unreasonable for the officers to believe that he was intentionally
evading them. However, the defendant does not have to run away for his
behavior to be considered unprovoked flight. See, e.g., United States v. Gordon,
231 F.3d 750, 757 (11th Cir. 2000) (“Obviously the speed of the suspect’s
movements may be relevant in the totality of the circumstances, but the fact that
the suspect walked very quickly, as opposed to ran, away from the spot where
he was sighted by police does not itself change the analysis where it is evident
from the circumstances that he was attempting to flee upon sighting the
police.”). Indeed, the fact that the vehicle had just sped off makes it objectively
more reasonable to assume that Tuggle was also trying to flee from the police
when he immediately thereafter turned and briskly walked away from the
officers. Further, even if we were to accept Tuggle’s argument that he was not
“in flight,” the flight of the vehicle, into which Tuggle had been leaning, provides
support for the officers’ suspicion that he was involved in some kind of
wrongdoing. Cf. United States v. Newman, 472 F.3d 233, 237 (5th Cir. 2006)
(“While the fact that a man dashed out of the house, by itself, is not enough to
create probable cause to search the house, . . . it is among the relevant
contextual considerations in the probable cause analysis.”); see also United
2
Because we find it unnecessary to consider the officers’ inference of narcotics
trafficking, we do not address Tuggle’s argument that because Wilkinson did not include the
purported narcotics transaction in his police report, his testimony on this subject should not
be credited.
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No. 07-30814
States v. Miles, 275 F.3d 1078, No. 00-11425, 2001 WL 1465241, at *3 (5th Cir.
2001) (unpublished) (“Although [the defendant] was not the one who fled, the
flight of a person standing near his automobile provided further reason to
support the Officers’ suspicion of [the defendant’s] involvement.”).
That suspicion was further heightened by Tuggle’s next move—traveling
ten to fifteen feet up into the yard of the Chippewa residence, directly toward the
stolen car. The district court concluded otherwise based on a clearly erroneous
view of the facts presented. Specifically, the district court presumed that
anybody walking in that area would be approaching the stolen car due to the
lack of sidewalks on Chippewa Street. That finding is inconsistent with the only
evidence provided on that subject at the hearing. Wilkinson unambiguously
indicated that Tuggle proceeded into the yard toward the parked stolen car and
not parallel to the street in the following colloquy:
Q Wouldn’t anybody walking down that street have
to walk towards those vehicles if they were on
that side of the street?
A No, they wouldn’t have to walk up into the yard.
Q And how far into the yard did [Tuggle] go?
A Ten or fifteen feet
Q How close was that to the [stolen] car?
A About fifteen feet. The cars were about thirty
feet from the roadway.
From this observation alone, the officers reasonably could have inferred that
Tuggle was the Chippewa resident’s boyfriend—the boyfriend suspected in the
auto-theft ring and of whom the officers had no physical description.
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No. 07-30814
Consequently, we disagree with the district court’s analysis and conclude
that the totality of the circumstances—(1) that the officers were conscious of the
high crime characteristics of the neighborhood in question, including a shooting
on that particular block; (2) that the Chippewa residence had been identified as
the storage location for cars stolen from the airport; (3) that the unidentified
boyfriend of the woman living at the residence was a suspect in that auto-theft
operation; (4) that one of the cars parked in the yard of the Chippewa residence
was confirmed stolen; (5) that Tuggle was observed leaning into the driver’s side
window of an idle vehicle blocking the roadway in front of the residence; (6) that
said vehicle sped away, as if in flight, on the police officers’ arrival; (7) that
Tuggle correspondingly walked briskly away from the officers; and (8) that
Tuggle proceeded ten to fifteen feet toward the stolen car in the yard—would
warrant an officer of reasonable caution in his belief that criminal activity was
afoot, and that the initial action taken, commanding Tuggle to return to the
street for questioning, was appropriate.3
B.
Our next task is to assess the reasonableness of the officers’ subsequent
frisk of Tuggle. On that point, the district court found “no evidence at all to
indicate that the officers had a reasonable belief that they were dealing with an
armed individual.” We disagree. As Wilkinson testified, the officers proceeded
3
Tuggle relies on United States v. Williams, 11 F. App’x 842, 843 (9th Cir. 2001)
(unpublished), for the proposition that police are not entitled under the guise of Terry to stop
virtually any person who happens to be in the vicinity of a crime scene. In that case, the officer
stopped the defendant “purportedly because he was within a block of a shooting.” Id. The
officer did not have a description of the shooting suspect, other than the fact that he fled the
scene on a bicycle, and the Ninth Circuit noted that the defendant was merely jogging at the
time. Id. Thus, the Williams court determined that there was no reasonable suspicion for a
Terry stop. Id. Tuggle’s case is distinguishable. Tuggle was located directly in front of the
Chippewa residence, or crime scene, not a block away; he tried to hurriedly retreat upon the
officers’ arrival; and, further, he walked directly up into the yard of the Chippewa residence
toward the stolen vehicle that the officers were there to recover. Tuggle was not merely in the
vicinity of another’s wrongdoing. Rather, his actions raised suspicion that he was the one
engaged in the wrongdoing. Thus, this authority is unavailing.
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No. 07-30814
to the Chippewa residence to investigate an auto-theft ring that was suspected
of stealing fifty to sixty vehicles from the airport. In conjunction with the
totality of the other factors, the officers here could have reasonably deduced from
such a large-scale operation, which successfully lifted numerous vehicles from
a secure airport, that those involved were likely sophisticated and dangerous
criminals. Thus, when Tuggle’s conduct reasonably suggested that he might be
part of that auto-theft ring, the officers were justified in fearing for their safety.
Further, their fear was enhanced, rather than dispelled, by Tuggle’s “very
nervous” and “shak[y]” demeanor as he returned to the street for questioning.
On this evidence, we conclude that a limited protective search for concealed
weapons was supported by a reasonable belief that Tuggle might be armed and
presently dangerous. See Michelletti, 13 F.3d at 840–41 (“An officer need not be
certain that an individual is armed; the issue is whether a reasonably prudent
man could believe, based on ‘specific and articulable facts,’ that his safety or that
of others is in danger.” (quoting Terry, 392 U.S. at 27) (emphasis added)).
Tuggle argues that his “mere propinquity to others independently
suspected of criminal activity” does not, without more, give rise to reasonable
suspicion to search his person. See United States v. Cole, 628 F.2d 897, 899 (5th
Cir. 1980) (internal quotation marks omitted). We do not disagree, but note that
here there were additional reasonable grounds which supported a frisk. The
officers did not rely solely on Tuggle’s presence in front of the Chippewa
residence as the basis for the search, but also on their observations of the car
fleeing when they arrived on the scene, and Tuggle similarly attempting to evade
them by heading ten to fifteen feet up into the yard of the residence, toward the
stolen vehicle. These circumstances, combined with Tuggle’s nervous and shaky
demeanor, objectively provided enough reasonable suspicion for the officers to
assure their protection and conduct a patdown for weapons.
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No. 07-30814
Moreover, even though each case involving the reasonableness of a Terry
stop and frisk turns on its own facts, Michelletti, 13 F.3d at 844, an examination
of two of our en banc cases, Rideau and Michelletti, as well as Terry itself,
further bolsters our decision here since their facts establish no greater degree of
suspicious behavior than we have found in Tuggle’s case. In Rideau, the
defendant, who the frisking officer suspected was drunk, was standing in the
road at night in a high crime area. 969 F.2d at 1573. When the officer
approached and asked the defendant’s name, he appeared nervous and
“critically, backed away.” Id. at 1575. This court determined that it was not
unreasonable under these circumstances for the officer to have feared that the
defendant was moving back to give himself time and space to draw a weapon.
Id. Accordingly, we concluded that it was not then unreasonable for the officer
to pat the defendant’s front pants pocket to determine whether he had a gun.
Id.Likewise, in Michelletti, the defendant who was frisked had barged out of
the back door of a bar at closing time with his right hand tucked in his pants
pocket and his left hand cupping a can of beer and approached the officer and a
group of individuals the officer was about to question. 13 F.3d at 839–40. Even
though the officer had testified during the suppression hearing that before the
patdown, he had no specific reason to believe the defendant was armed, the en
banc court still held that the officer’s frisk was supported by a reasonable
concern for danger because the circumstances surrounding the
encounter—closing time at a bar, the size of the group of onlookers, and the
possibility that the defendant was inebriated—signaled a need for caution. Id.at 842–43.
And finally, in Terry itself, the police officer had merely observed, during
daylight hours, two individuals pacing back and forth in front of a store, peering
into the window and periodically conferring. 392 U.S. at 5–6, 22–23. In light of
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No. 07-30814
the officer’s experience, the Supreme Court determined that it was reasonable
for him to infer that the men were contemplating a daylight robbery, which
would likely involve the use of weapons. Id. at 27–28. Thus, the Court held that
the limited frisk for weapons, even after the men had departed the original
scene, did not violate the Fourth Amendment. Id. at 28–29. Terry, Rideau, and
Michelletti reveal the courts’ willingness to defer to police officers’ seasoned
judgments and to permit them to “tak[e] reasonable steps to ensure their safety
when they have legitimately detained an individual.” Rideau, 969 F.2d at 1575;
see also Holloway, 962 F.2d at 459 (“Factors that ordinarily constitute innocent
behavior may provide a composite picture sufficient to raise reasonable suspicion
in the minds of experienced officers . . . .”) (footnote omitted). Because we cannot
say that the articulable facts in this case are sufficiently less suspicious than
those recounted above, we conclude that the patdown for weapons here did not
violate the Fourth Amendment’s proscription on unreasonable searches.4
IV.
For the foregoing reasons, we REVERSE the district court’s order
suppressing the seized firearm and REMAND for further proceedings.
4
The government also asserts that the officers’ inference that Tuggle was conducting
a street-level narcotics transaction supports their reasonable belief that Tuggle might have
been armed and dangerous. See Ornelas, 517 U.S. at 700 (“[Supreme Court] cases have
recognized that a police officer may draw inferences based on his own experience in deciding
whether probable cause exists.”) (citing as an example United States v. Ortiz, 422 U.S. 891, 897
(1975)); see also, e.g., United States v. Coleman, 969 F.2d 126, 131 n.20 (5th Cir. 1992)
(“Weapons and violence are frequently associated with drug transactions, of course.”); United
States v. Dixon, 132 F.3d 192, 197 (5th Cir. 1997) (“This Circuit has explicitly recognized that
firearms are tools of the trade of those engaged in illegal drug activities . . . .” (citations and
internal quotation marks omitted)). Because we conclude that the other articulable facts and
inferences legitimately justify the officers’ patdown, it is unnecessary to address this assertion.
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