United States v. Baker

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 14, 1995
• Docket: 94-40576
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 94-40576 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARNALDO BAKER,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the Eastern District of Texas ______________________________________________

(March 1, 1995)

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Arnaldo Baker (Baker) appeals the district

court's denial of his motion to suppress evidence seized from his

vehicle. We affirm.

Facts and Proceedings Below

On the morning of July 30, 1993, Beaumont police officers

David Froman (Froman) and Gerald LaChance (LaChance) were

patrolling Interstate 10 in Beaumont, Texas. The officers

positioned their patrol car in the median between the eastbound and

westbound traffic lanes. At approximately 9:21 a.m., Froman observed a white Dodge proceeding east on the highway and noticed

that the passenger was not wearing a seat belt as required by Texas

law. As the officers were pulling the Dodge over to investigate

the possible seat belt violation, they noticed another vehicle

approaching at a high rate of speed. At this point, LaChance

motioned to the second vehicle to pull over as well. Froman

approached the driver's side of the Dodge, and La Chance went to

speak with the driver of the second vehicle.

Froman asked Baker, the driver of the Dodge, to get out of the

car and accompany him to the patrol car. Froman observed that

Baker appeared to be extremely nervous. Baker told Froman that he

and his wife were returning to Georgia from California, that they

had left Los Angeles the previous day at 7:00 a.m., and that they

had stayed overnight at a motel on the west side of Houston.

Froman considered it unlikely that Baker could have driven such a

distance in the time he claimed. Froman then approached the

passenger side of the vehicle to obtain Baker's wife's driver's

license and to speak with her about the seat belt violation.

Froman noticed that Baker's wife also appeared to be extremely

nervous. She told Froman that she and her husband had spent two

weeks in San Antonio and were returning to Georgia. While he was

speaking to Baker's wife, Froman observed a box of .9 millimeter

bullets on the left front floorboard of the car. Froman then asked

her where the pistol was, and she replied that she did not know.

Froman interpreted her response to mean that there was a pistol in

the car.

Froman asked Baker's wife to get out of the car so he could

2 search the front seat area for the pistol. At the suppression

hearing, Froman testified that he did this "in the interest of

officer safety." As Baker's wife got out of the car, Froman

noticed that she had been sitting with her feet on a package that

was on the right front floorboard of the car. When he reached down

to move the package so that he could look under the front seat, he

smelled the odor of marihuana and could see what appeared to him to

be a brick of marihuana inside the open-ended package.1 Froman

then signalled to LaChance that he had found narcotics in Baker's

vehicle. Approximately three to four minutes had then elapsed

from the time the Bakers were initially pulled over for the seat

belt violation. The Bakers were then arrested. As he was being

patted down for weapons, Baker told LaChance that there was a gun

on the back seat of the car. LaChance conducted an inventory

search of the car at the narcotics station and found a .9

millimeter pistol and a small additional amount of marihuana.

On September 16, 1993, a federal grand jury returned a three-

count indictment against Baker and his wife, charging them with

conspiracy to distribute and possess with intent to distribute

marihuana in violation of 21 U.S.C. § 846 (Count I), possession of

marihuana with intent to distribute in violation of 21 U.S.C. §

841(a)(1) (Count II), and using or carrying a firearm during a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count

III). Baker filed a motion to suppress the evidence seized from

his automobile. After the district court denied his motion to

1 Subsequent laboratory analysis confirmed that this package contained a 5.5 pound brick of marihuana.

3 suppress, Baker entered a conditional guilty plea to Count III,

reserving his right to appeal the district court's denial of his

motion to suppress. On June 15, 1994, the district court sentenced

Baker to 60 months of imprisonment and 3 years of supervised

release and imposed a $50 special assessment. Baker filed a timely

notice of appeal.

Discussion

Baker contends that the district court erred in denying his

motion to suppress evidence. In reviewing a district court's

ruling on a motion to suppress, we review questions of law de novo.

United States v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984). We

consider the evidence in the light most favorable to the prevailing

party and accept the district court's factual findings unless

clearly erroneous or influenced by an incorrect view of the law.

United States v. Lanford, 838 F.2d 1351, 1354 (5th Cir. 1988).

Baker argues that the officers searched his vehicle in

violation of Terry v. Ohio, 88 S.Ct. 1868 (1968). In Terry, the

Supreme Court held that police officers may detain individuals

briefly on the street, even though there is no probable cause to

arrest them, as long as they have a reasonable suspicion that

criminal activity is afoot. Reasonable suspicion under Terry must

be based on "specific and articulable facts," and the facts must

"be judged against an objective standard." Id. at 1880. The Court

in Terry also held that a police officer who reasonably believes

that he is dealing with armed and dangerous individuals may conduct

a limited protective search for weapons. Id. at 1881. "The

officer need not be absolutely certain that the individual is

4 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 1883.

In Michigan v. Long, 103 S.Ct. 3469 (1983), the Court applied

the principles of Terry to automobile searches. In Long, two

police officers noticed a vehicle driving erratically and at an

excessive rate of speed in a rural area late at night. After the

officers saw the car swerve into a ditch, they stopped to

investigate. Long, the driver, met the officers at the rear of the

car and "appeared to be under the influence of something." Id. at

3473-74. After the officers repeatedly asked Long for his driver's

license and registration, Long began walking toward the open door

of his vehicle. The officers followed him and observed a hunting

knife on the floorboard of the car. After seeing the knife, the

officers subjected Long to a protective pat down, which revealed no

weapons. At this point, one of the officers remained with Long at

the rear of the vehicle while the other shined his flashlight in

the car to look for other weapons. When the officer noticed

something protruding from under the armrest, he entered the vehicle

and found a pouch containing marihuana. Upholding the validity of

the search, the Court held that "the search of the passenger

compartment of an automobile, limited to those areas in which a

weapon may be placed or hidden, is permissible if the police

officer possesses a reasonable belief based on `specific and

articulable facts which, taken together with the rational

inferences from those facts, reasonably warrant' the officer in

believing that the suspect is dangerous and the suspect may gain

5 immediate control of weapons." Id. at 3481 (quoting Terry, 88

S.Ct. at 1882). See, e.g., United States v. Coleman, 969 F.2d 126,

131 (5th Cir. 1992) (upholding protective search of passenger

compartment of vehicle on the ground that it was reasonable for the

patrol officers to be concerned for their safety); United States v.

Maestas, 941 F.2d 273, 277 (5th Cir. 1991), cert. denied, 112 S.Ct.

909 (1992) (holding that officer had reasonable suspicion to

conduct protective search of the passenger compartment of

defendant's truck).

Baker does not argue, nor could he, that the initial stop of

his vehicle for the seat belt violation was improper. This being

so, it was proper for the officers to order him out of the vehicle

and to briefly question his wife about the seat belt violation.

See Pennsylvania v. Mimms, 98 S.Ct. 330, 333 (1977) (holding that

it is constitutionally permissible for a police officer to order

the driver to get out of the vehicle when done incident to a lawful

traffic stop). Instead, Baker argues that the search of his

vehicle was unreasonable under Terry and Long because the officers

had no subjective fear that Baker possessed any weapons or was

dangerous. In support of his argument, Baker relies on the

decisions of two of our sister circuits. United States v. Lott,

870 F.2d 778, 783-84 (1st Cir. 1989) ("Although Terry and Long

speak in terms of an objective test (`reasonableness') for

determining the validity of an officer's frisk for weapons, we do

not read those cases as permitting a frisk where, although the

circumstances might pass an objective test, the officers in the

field were not actually concerned for their safety."); United

6 States v. Prim, 698 F.2d 972, 975 (9th Cir. 1983) ("Although the

existence of reasonable suspicion or probable cause is judicially

viewed under an objective standard, it is a standard applied to the

actual and/or perceived belief of the law enforcement officer as he

either stops and detains or engages in search and seizure."). This

Court, however, has never held that an officer's objectively

reasonable concern for safety does not justify a protective Terry

pat down for weapons where the officer has no actual fear for his

safety. See, e.g., United States v. Michelletti, 13 F.3d 838, 842

(5th Cir. 1994) (en banc) (upholding officer's Terry frisk under an

objective reasonableness standard, notwithstanding his testimony on

cross-examination at the suppression hearing that he had no

specific reason to believe that the defendant was armed); United

States v. Tharpe, 536 F.2d 1098, 1101 (5th Cir. 1976) (en banc)

("We know of no legal requirement that a policeman must feel

`scared' by the threat of danger."). See also United States v.

Cummins, 920 F.2d 498, 502 (8th Cir. 1990), cert. denied, 112 S.Ct.

429 (1991) ("As we apply an objective standard of reasonableness to

this determination, our conclusion is not changed by [the

officer's] testimony that he had no subjective fear that either

Cummins or Akins were armed."). In Michelletti, we took note of

the officer's testimony that he had no specific reason to believe

that the defendant was armed but went on to find that several other

factors surrounding the encounter satisfied the reasonable

suspicion standard. In the instant case, there was no testimony

that Froman and LaChance did not suspect that weapons were

concealed in Baker's vehicle. In fact, Froman testified at the

7 suppression hearing that he searched the car "in the interest of

officer safety." Further, the district court, in its oral ruling

on the motion to suppress, credited Froman's testimony that he

interpreted Baker's wife's comment to mean that there was a gun in

the car. We thus accept the district court's finding that the

officers searched Baker's car because they suspected that it

contained weapons.

United States v. Richards, 967 F.2d 1189, 1193 (8th Cir. 1992)

involved facts similar to those of the instant case. There, a

police officer observed the defendant, Richards, driving

erratically and pulled him over to investigate. After asking

Richards to accompany him to the patrol car, the officer noticed

that he appeared very nervous. Richards explained that he had

recently been released from prison after serving time for burglary.

Another officer approached the car to question Richards's

passenger. As he approached the passenger, the officer noticed a

box of .22 caliber shells on the console inside Richards's car.

After seeing the shells, the officer searched the passenger

compartment of the vehicle for weapons and found a small amount of

marihuana. The officers arrested both Richards and his passenger,

then searched the trunk of his car and found, inter alia,

additional amounts of marihuana and two loaded handguns.

On appeal, Richards argued that the district court should have

suppressed the evidence seized from his car because the warrantless

search was unreasonable. Upholding the validity of the search

under Michigan v. Long, the Eighth Circuit relied on Richards's

nervousness, the .22 caliber shells in the car, and Richards's

8 statement that he was a recently released felon. Id. at 93. See

also United States v. Fryer, 974 F.2d 813, 819 (7th Cir. 1992),

cert. denied, 113 S.Ct. 2419 (1993) (holding that late night search

of automobile for weapons after traffic stop in marginally safe

neighborhood was reasonable based on furtive movements between the

driver and passenger); United States v. Coleman, 969 F.2d 126, 131

(5th Cir. 1992) (finding that officer's search of passenger

compartment of defendant's car for weapons was reasonable where

defendant appeared nervous, officer knew the stop was part of a

narcotics investigation, and defendant started to retrieve pouch in

his car which he claimed contained his license).

We have recognized that "[e]ach case involving the

reasonableness of a Terry stop and frisk turns on its own facts."

Michelletti, 13 F.3d at 844. Several facts in the instant case

demonstrate that the officers' search of the passenger compartment

of Baker's car was reasonable under Terry and Long. First, Froman

testified that Baker and his wife both appeared extremely nervous

and gave inconsistent explanations for their trip. Second, Froman

noticed a box of .9 millimeter bullets on the front floorboard of

Baker's car. Finally, when Froman asked Baker's wife where the gun

was, she stated that she did not know, a remark Froman interpreted

to mean that there was a gun in the car. Based on these facts

known to the officers at the time of the search, we hold that their

conduct in searching the passenger compartment of Baker's vehicle

for weapons was reasonable under the objective standard of Terry

and Long.

9 Conclusion

For the foregoing reasons, Baker's conviction is

AFFIRMED.