IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 91-2911
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
FLOYD COLEMAN, Defendant-Appellant.
Appeal from the United States District Court For the Southern District of Texas
(August 10, 1992)
Before JONES and WIENER, Circuit Judges, and LITTLE, District Judge*
PER CURIAM:
In this criminal appeal, Defendant-Appellant Floyd Coleman
argues that his conviction for the federal crime of carrying and
using a firearm during a drug-trafficking crime, in violation of 18
U.S.C. § 924(c), should be reversed and remanded, with instructions
that evidence seized pursuant to the stop and search of his car be
suppressed. Agreeing with the district court's ruling that the
officers directing the stop of Coleman's car had a reasonable
suspicion that its occupants were engaged in illicit activities, we
affirm. Disagreeing with the district court's determination that
* District Judge of the Western District of Louisiana, sitting by designation. the "plain view" doctrine permitted the patrol officer's seizure of
a leather pouch, we nevertheless affirm that court's denial of
Coleman's motion to suppress, finding the seizure proper under the
principles articulated in Michigan v. Long.1
I. FACTS AND PROCEEDINGS
A. SEARCH AND SEIZURE
In March of 1990, Special Agent Statlander, of the Drug
Enforcement Administration (DEA), received information from
confidential informants that cocaine and crack were being sold from
4107 West Bellfort, Houston, Texas (Bellfort). The informants
identified Coleman as the "owner and operator" of Bellfort, and
Floyd Edwards as the person who ran operations. Statlander
verified that Coleman leased Bellfort, which was used as a private
after hours club with a charter in the name of the "Lodge of the
Benevolent Order of the Bears."
A confidential informant purchased cocaine at Bellfort on
March 4, 1990, as did two undercover officers, in separate
transactions, on March 7, 1990. On March 8, 1990, Statlander
observed a yellow Oldsmobile, which he later ascertained was
registered to Coleman, parked "outside" Bellfort. That same day,
an undercover officer attempted to purchase two ounces of cocaine
from Edwards. When Edwards was able to provide only one ounce of
cocaine, however, the undercover officer left Bellfort. Police
surveillance, which had been established prior to this attempted
purchase, was discontinued. Coleman's car was not at Bellfort at
1 463 U.S. 1032, 1049-50 (1983).
2 the time of this attempted purchase.
About forty minutes later, surveillance was re-established and
the undercover officer returned to Bellfort to purchase the
negotiated-for two ounces of cocaine. Coleman's car was once again
sighted near Bellfort. This time, the undercover officer succeeded
in purchasing two ounces of cocaine from Edwards, using $1,700 in
marked bills. During this transaction, the undercover officer
observed a man sitting at the bar watching her. After the purchase
was completed, the undercover officer saw Edwards go to that man
and engage him in a brief conversation.2 When Edwards returned to
the undercover officer, he gave her instructions on where she could
go to get the cocaine cooked into crack and stated that if she came
back she could meet the "other Floyd." After leaving Bellfort, the
undercover officer radioed the surveillance team and recounted all
that had transpired inside Bellfort. She also told the surveil-
lance team that "there would probably be a couple of people leaving
right behind her and the surveillance team should follow those
individuals."
After the undercover officer departed Bellfort, Statlander
observed two black males leaving, getting into Coleman's car, and
proceeding west on West Bellfort, the direction taken by the
undercover agent. Statlander testified that because of his
surveillance position he was unable to identify these individuals.
2 The government states that the undercover officer saw "the appellant" sitting at the bar. There is no evidence, however, the undercover officer knew that this man was Coleman at that time.
3 Statlander and Officer Ollie, of the Houston Police Department
Narcotics Squad, followed Coleman's car for some distance and then
requested a marked unit stop the car to "identify" its occupants.
Officers Pedraza and Smith, in separate patrol cars, responded
to Statlander's request. The officers spotted Coleman's car in the
7800 block of West Bellfort and followed it to the 8200 block of
West Bellfort, where Smith pulled it over. Coleman immediately got
out and met Smith at the rear of his (Coleman's) car. Observing
"two bulges in Coleman's pockets," Smith frisked Coleman for
weapons, and discovered two bundles of money. (Coleman does not
challenge this frisk.)
The patrol officers and Coleman have quite different versions
of what transpired next. The district court accepted the officers'
version in toto. According to the officers, when asked for
identification, Coleman replied that his driver's license was in
the car. Pedraza inquired as to its precise location; and Coleman
responded that it was inside a "pouch." Apparently intending to
get the pouch, Coleman moved toward the car, but was stopped by
Pedraza, who retrieved the pouch himself from underneath the
driver's seat armrest. Pedraza testified that when he picked up
the pouch he could feel a gun in it. Nevertheless, without first
removing the gun, Pedraza handed Coleman the pouch. Coleman
started to unzip the pouch but then gave it back to Pedraza,
telling him there was a gun in it. Pedraza looked in the pouch and
found a loaded handgun and Coleman's driver's license, as antici-
pated, as well as several beepers, and a telephone book. Coleman
4 thereupon was arrested for possession of the gun in violation of
Texas law. Ollie and Statlander, who had by this time been called
to the scene, checked the bundles of money seized from Coleman and
discovered that one bundle contained the $1,700 in marked bills
used by the undercover officer to purchase the two ounces of
cocaine. Ollie advised Coleman of his Miranda rights, and asked
for, and received, Coleman's written consent to search the vehicle.
On the front seat, under the console armrest between the driver and
passenger seats, Ollie found a brown paper bag containing cocaine
and crack.
Coleman, on the other hand, testified that he was carrying his
driver's license and other papers in his sock because his jogging
suit had no pockets. So, when Smith asked for Coleman's driver's
license, he produced it. Pedraza then arrived and asked Thomas
Braxton, the passenger in the car, who owned the pouch that was in
the car. When Coleman responded that it was his, Pedraza "removed
it from the back seat and said there was a pistol in it." At this
point, Coleman was arrested, and the officers searched the entire
car. According to Coleman, Statlander had not arrived on the scene
at the time of the car search. Moreover, Coleman states that Ollie
asked for and received his written consent to search the car only
after it had already been searched.
B. DISTRICT COURT'S RULING
Coleman filed a motion to suppress the firearm, money, and
cocaine seized from his car, asserting that the stop and
5 warrantless search of his car was unreasonable, and thus violative
of the Fourth Amendment of the United States Constitution. After
a hearing on this motion, the district court ruled that the
temporary detention of Coleman's car was a valid investigatory stop
as the circumstances of the departure of Coleman's car gave rise to
a reasonable suspicion that met the minimal level of justification
necessary for the stop. Neither was a warrant required to seize
the pouch from under the driver's armrest, the district court
ruled, because it was in "plain view." Lastly, the court upheld
the search of the entire car, in which the officers discovered the
brown paper bag containing cocaine and crack, as either a search
incident to a valid arrest or pursuant to Coleman's voluntary and
knowing consent.
Coleman pleaded guilty to multiple narcotics trafficking
charges,3 and entered a conditional guilty plea to using and
carrying a firearm during a drug-related offense, in violation of
18 U.S.C. § 924(c). Before this court, Coleman challenges only his
conviction on the firearms count.
II. ANALYSIS
A. STANDARD OF REVIEW
While this court reviews questions of law de novo, "[i]n
3 Coleman pleaded guilty unconditionally to conspiring to distribute, manufacture, and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; two counts of possessing with intent to distribute and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1); knowingly opening and maintaining a place to distribute a controlled substance, in violation of 21 U.S.C. § 856.
6 reviewing a trial court's ruling on a motion to suppress based on
live testimony at a suppression hearing, the trial court's purely
factual findings must be accepted unless clearly erroneous, or
influenced by an incorrect view of the law, and the evidence must
be viewed [in the light] most favorable to the party prevailing
below."4
B. STOP OF COLEMAN'S CAR
Absent probable cause, a vehicle and its occupants
nevertheless may be briefly detained for investigation based on the
lesser standard of reasonable suspicion of criminal activities.5
Under Terry v. Ohio, a seizure and search is deemed reasonable if
it "was justified at its inception," and "reasonably related in
scope to the circumstances which justified the interference in the
first place."6 "[R]easonable suspicion is to be determined by
considering the totality of the circumstances, including the
collective knowledge of all officers in assessing the facts."7
Issues concerning the legality of a search of a car, which takes
place after an investigatory stop, are separate from whether the
4 U.S. v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir. 1990), quoting U.S. v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984). 5 Terry v. Ohio, 392 U.S. 1, 21-22 (1968). 6 Id. at 19-20. 7 U.S. v. Shaw, 701 F.2d 367, 377 n. 4 (5th Cir. 1983) (internal quotations omitted), citing U.S. v. Cimino, 631 F.2d 57, 59 (5th Cir. 1980), and U.S. v. Kreimes, 649 F.2d 1185, 1189 (5th Cir. 1981).
7 stop itself was legal.8
Coleman offers two somewhat inconsistent reasons why the
officers did not have a reasonable suspicion that he was involved
in drug activities, and thus no legitimate reason to stop his car.
Coleman first argues that there was no legitimate investigatory
reason to "identify" the car's occupants because Statlander had
seen him previously and therefore knew what he looked like, had
checked the car's registration and knew it belonged to Coleman, and
had already targeted him for investigation. Thus, Coleman
contends, Statlander and Ollie already knew he was in the car when
they directed that it be stopped by the marked units for the
ostensible purposes of identifying its occupants. Alternatively,
Coleman maintains that the officers' collective knowledge would not
justify the stop because "[a] drug transaction occurred in a club
between Floyd Edwards and an undercover officer, and he was neither
involved in the transaction nor identified as being present."
The government responds that at the time Statlander and Ollie
requested the yellow Oldsmobile be stopped they had much more than
an "inchoate and unparticularized suspicion or hunch" that Coleman
and the yellow Oldsmobile were involved in drug activities.
Specifically, when Statlander requested that a marked unit stop the
car he knew that Bellfort was leased by Coleman; Bellfort was a
distribution spot for cocaine; confidential informants had said
that Coleman was involved; Coleman's car was parked in front of
Bellfort; the re-appearance of Coleman's car at Bellfort on the
8 U.S. v. Basey, 816 F.2d 980, 988 (5th Cir. 1987).
8 afternoon of March 8, 1990, corresponded with the appearance of the
hitherto unavailable two ounces of cocaine; the undercover officer
told Statlander immediately after the sale of cocaine about the man
at the bar and Edward's statement about meeting the "other Floyd";
the undercover officer stated that there would be a couple people
following her out of the club and that they should be followed; and
two black males left the club about that time and drove off in
Coleman's car. The government notes, moreover, that Statlander
testified that he could not identify the two individuals who got
into Coleman's car because of his surveillance position.
We agree with the government's contention that Statlander's
request that the marked units stop Coleman's car was based on
reasonable suspicion that the car's occupants were involved in
illicit activities. The government's explanation for the Terry
stop makes consummate sense, i.e, that the officers directing the
stop had a relevant investigatory reason to identify the
individuals who had just been associated with the sale of cocaine.
Although we acknowledge Coleman's point that a stop pursuant to
Terry requires that the officers have a particularized suspicion of
wrongdoing,9 Terry does not require that the officers already know
the identity of the individual prior to the stop. Indeed, in Adams
v. Williams,10 the Supreme Court expressly stated that "[a] brief
stop of a suspicious individual, in order to determine his identity
. . . may be [] reasonable in light of the facts known to the
9 See, e.g., U.S. v. Cortez, 449 U.S. 411, 417-18 (1981). 10 407 U.S. 143, 146 (1972).
9 officer at the time." We also believe it inappropriate to
characterize so narrowly the patrol officers' investigatory purpose
as mere "identification" without also considering why
identification was desired. Clearly, this stop was no random
detention, "fishing expedition,"11 or detention based on nothing
more than, say, the driver's race or the car's proximity to
Bellfort.12
C. SEIZURE OF POUCH
Coleman next argues that even if the stop of his car was valid
under Terry, Pedraza's seizure of the pouch from the car's front
seat was unlawful. Coleman contends that the district court erred
in crediting Pedraza's testimony--that Pedraza handed the pouch
that he knew contained the gun over to Coleman to see what his
reaction would be--because that version of events is "beyond
belief." And if his license was not in the car, as the patrol
officers contend, but in his sock, Coleman continues, the officers
would not have found the gun in the pouch, would not have arrested
him for possessing the gun, and therefore could not have searched
the car pursuant to that arrest.
The government responds that Coleman's contention ignores a
substantial portion of Pedraza's testimony: Coleman was in a
"triangle" position between Smith and Pedraza, so there was no way
11 See, e.g., Basey, 816 F.2d at 989 (Terry rationale does not justify stopping every vehicle for several miles after discovery of crime). 12 Cf. U.S. v. Buchannon, 878 F.2d 1065, 1067 (8th Cir. 1989) (police justified in stopping cars departing in caravan from suspected drug house).
10 Coleman could get the gun out of the pouch in time to do either
officer any harm; and Pedraza knew that Coleman knew that Pedraza
had discovered a gun inside the pouch. Therefore, although
Pedraza's approach might seem unreasonably dangerous to those
uninitiated with police tactics and procedures, any danger was
mitigated by Pedraza's knowledge and position. The government
insists, moreover, that "[a]s a patrol officer with seven years
experience, Officer Pedraza must be trusted to know what he can and
cannot do safely."
As noted earlier, a trial court's factual findings on a motion
to suppress must be sustained unless shown to be clearly
erroneous.13 Here, the district court observed the witnesses,
weighed conflicting testimony, and made a determination that the
patrol officers' version of events was the more credible one. We
are not prepared to say in this case that the district court's
credibility determinations and its ensuing factual findings were
clearly erroneous, and we therefore reject Coleman's assertion of
error.
Coleman's more substantial argument is that the district court
erred in upholding the seizure of the pouch under the "plain view"
doctrine. Despite the district court's ruling, the government
wisely characterizes the issue not as a straight plain view seizure
but as a Terry frisk of the car for weapons, during which Pedraza
discovered the gun in the pouch pursuant to "plain feel." We find,
for the reasons that follow, that while Pedraza's seizure of the
13 U.S. v. Logan, 949 F.2d 1370, 1377 (5th Cir. 1991).
11 pouch from Coleman's car cannot be sustained under the plain view
doctrine, it was valid as a Terry frisk of the car for objects that
might contain weapons.
As recently summarized by the Supreme Court in Horton v.
California,14 a plain view seizure requires that (1) the police's
initial intrusion be supported by a warrant or recognized exception
to the warrant requirement,15 and (2) the incriminating character
of the object seized be immediately apparent.16 In this case,
however, the second element is not satisfied because Coleman's
leather pouch was not evidence of crime, contraband, or otherwise
inherently incriminating.17 Therefore, even had Pedraza seen the
pouch prior to entering the car, its seizure would be invalid.
The government's second argument in support of Pedraza's
seizure of Coleman's pouch is that it was justified in order to
ensure that the pouch contained no weapon. In Michigan v. Long,18
the principles articulated in Terry were applied to automobiles.
Under Long, "[t]he search of the passenger compartment of an
14 110 S.Ct. 2301 (1990). 15 Id at 2307. 16 Id. 17 See Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971) (cars' probative value remained uncertain until after interiors were swept and examined microscopically). Compare, e.g., U.S. v. Webb, 950 F.2d 226, 229 (5th Cir. 1991), reh. denied 1992 U.S. App. LEXIS 2090 (1992), and cert denied 119 L.Ed.2d 236 (1992). (weapons in car in plain view), with Arizona v. Hicks, 480 U.S. 321 (1987) (not apparent that expensive stereo components were contraband). 18 463 U.S. 1032, 1049-50 (1983).
12 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 rationale inferences from those facts,
reasonably warrant the officer in believing that the suspect is
dangerous and the suspect may gain immediate control of the
weapon."19
The government contends, and we agree, that given the
circumstances of this case it was reasonable for the patrol
officers to be concerned for their safety. The district court's
factual findings reveal that the patrol officers knew that the stop
was requested by narcotics officers; indeed, Pedraza knew
specifically that the stop was part of an ongoing narcotics
investigation or surveillance.20 Statlander and Ollie clearly had
reason to believe that the occupants were involved in narcotics
trafficking. When the vehicle was stopped, Coleman did not stay in
his car, but exited quickly, meeting Smith at the back of his
(Coleman's) car. According to the patrol officers, Coleman
appeared nervous when he was interviewed by Smith. The pat-down
search of Coleman revealed two bundles of money, thus further
associating Coleman with known drug dealing activities at Bellfort.
19 Maryland v. Buie, 494 U.S. 325, 332 (1990) (citations and internal quotations omitted); see also U.S. v. Maestas, 941 F.2d 273, 276 (5th Cir. 1991), cert denied, 116 L.Ed.2d 809 (1992). 20 Weapons and violence are frequently associated with drug transactions, of course. U.S. v. Wiener, 534 F.2d 15, 18 (2d Cir. 1976) ("[T]o 'substantial dealers in narcotics,' firearms are as much 'tools of the trade' as are most commonly recognized articles of narcotics paraphernalia.").
13 Hence, the patrol officers had reason to believe that Coleman could
be armed and dangerous. So when Coleman stated that his license
was in a pouch inside his car and started to retrieve it, Pedraza
was justified in retrieving the pouch himself to ensure that it did
not contain a weapon.
Having acquired possession of Coleman's pouch through a
recognized exception to the warrant requirement--a Terry/Long
search of the car for weapons and places that could contain
weapons--Pedraza's discovery of the weapon was justified as "plain
feel." To determine whether objects in a car contain weapons, the
officer conducting the frisk is authorized to touch objects,21 or
even to open those objects.22 As such, it was perfectly reasonable
for Pedraza to pick up the pouch referred to by Coleman to
determine if it contained a weapon in addition to Coleman's
license.
Coleman was arrested for the crime of carrying a handgun in
violation of Texas law. Thus, the officers' second search of
Coleman's entire car, in which cocaine and crack were discovered,
was valid as a search incident to arrest.23
21 See, e.g., U.S. v. Williams, 822 F.2d 1174 (D.C. Cir 1987) (touch of brown paper bag revealed drugs); U.S. v. Wilkerson, 598 F.2d 621, 625-26 (D.C. Cir. 1978) (pat-down of jacket revealing gun); U.S. v. Portillo, 633 F.2d 1313 (9th Cir. 1980) (contact with paper bag revealed gun). 22 See, e.g., U.S. v. Walker, 576 F.2d 253, 255 (9th Cir. 1978) (upholding Terry search of large purse). 23 See New York v. Belton, 453 U.S. 454 (1981). Because we find that the second search of Coleman's that unearthed the drugs was valid as a search incident to arrest, we need not, and therefore do not, consider the voluntariness of Coleman's consent
14 For the foregoing reasons, therefore, the judgment of the
district court is
AFFIRMED.
to search.