United States v. Johnny Carl Michelletti

pistol right .22 ered a caliber GARZA, Before REYNALDO G. pants pocket originally drawn JONES, Judges. WILLIAMS Circuit officer’s attention. had been aggravated assault in 1989. convicted GARZA, Judge: REYNALDO G. pled guilty pos- to the unlawful Michelletti, Appellant, Johnny ap- Carl session of a firearm a convicted felon in peals suppres- the denial his motion 922(g)(1). spe- violation of 18 U.S.C. He sion of evidence. Michelletti entered into a cifically appeal reserved the plea agreement expressly reserving the suppress denial of his motion to the evi- challenge his motion’s denial. The pistol. dence of the He was sentenced to appellant pled guilty pos- to the unlawful imprisonment, years 33 months three su- session of a firearm a convicted felon. pervised release and a assessment. $50 review, that the deni- Upon careful we find timely appealed. proper al of the motion was and we there- fore affirm. ANALYSIS appellant argues that Officer

FACTS or frisk him had no basis to detain 17, 1991, El pis On November Paso Police concealed and therefore discovered George Perry partner and his tol should not have been admitted into evi high disagree. An on routine motor crime dence. We if indeed there was some reason- involved if he individual and search afoot men. The activity part on the of the four intent that criminal surmised, alternative, might be armed. 29-30, S.Ct Ohio, police might 392 U.S. three men and the are “We 1883-85, 20 L.Ed.2d appellant had ill intent and danger in if the police officers of the hands unwilling to tie fact he actually armed. The was situa- potentially in operating times, pocket in his at taking rea- them from precluding tions circumstances, surrounding was given the safety when their ensure steps to sonable Michelletti of enough reason an individu- detained legitimately they have and the being armed warranted possibly Rideau, al.” United and, possi- frisk for the officers’ pat down Cir.1992). (5th safety. appellant bly, bystanders’ the reasons Perry had several attitude, cocky stared at the a of a had bit time appellant. suspicious of the to be attempted walk and officer a.m., closing for bars. time around 2:00 any intention did not have him. Michelletti routine on officers pouring it out. setting the down or of beer man a they observed when high crime area if had a the bar The officer knew at Alacran’s away from them run and turn do, beverage permit, as bars mixed most immediately went subject first This Bar. any alco- to remove that it was a violation two friends joined his and the bar behind premises under the beverage the holic policemen’s announce the presumably to If in the Ann. 28.10.1 Tex.Alco.Bev.Code § already aroused Suspicions were arrival. alternative, an off had the establishment oth joining these individual by this evasive license, a violation it would be premises apprehen obviously er men is 101.723. The record 71.012 or under §§ the presence. When about sive the carried. license the bar as to which silent group, Michellet the approached policeman the did not know whether The officer also the back door open suddenly pushes ti a.m., in 2:00 illegally sold after beer holding an He is approaches. and the bar a had The officer 105.05.4 violation § keep hand while in his left open beer can the Code under duty uphold definite pants pocket. his front in ing his a clear that It 101.07.5 § is six pounds and weighs 220 a violation to believe that good faith reason figure imposing This foot, inches tall. the au- therefore had and place had taken a have harm he did a lot of from the appellant aside thority stop risk appreciated the The officer weapon. dealer’s off- permit or a retail off-premise er’s part: provides in relevant 1. 28.10 § premise license. Consumption Restricted Premises part: in relevant 4. 105.05 states may per- (b) beverage permittee A mixed Sale: Beer Hours of any any person take alcoholic mit sale, sell, (a) may person offer No premises from the purchased the licensed permitted this any time not beer at deliver sold.... premises where section. Activities. Authorized 2. 71.01 300,- having population of (c) county In a off-premise a retail dealer’s The holder preceding more, according to the last 000 or containers may in lawful beer license sell census, on- dealer’s holder of retail federal consumers, sell, not to be resale and not for offer license premise late hours premises midnight on or near opened or and sale, consumed beer between and deliver where sold. day. 2 a.m. on part: Duty Officers in relevant of Peace 101.72 states state, including those Beverage peace All officers on Premis- Consumption Alcoholic state, counties, cities, enforce shall and Consumption Off-Premises es Licensed for cooperate with and and code provisions of person (a) if the person an offense A commits detecting violations assist the commission liquor or beer on the knowingly consumes offenders. apprehending and and a wine beer retail- premises a holder of suspicion to reasonable surrounding find sufficient by the generated suspicions frisk, respectfully dissent. justify the hand. Michelletti’s concealed events significant dispute is no about There attitude, stare appellant’s Given reviewing dis- we are facts. Because right hand while placement of Perry had legal conclusion that court’s trict out of bar cavalierly a beer carried justify suspicion to reasonable sufficient grounds for Law were violation frisk, novo standard the de rea- these you combine suspicion. When Richardson, 943 applies. United States high crime night, the time at sons of the three area, suspicious actions men, had sufficient reasonable Ohio, S.Ct. danger might be suspicion that he (1968), the 20 L.Ed.2d The possibly armed. that excep- an outlined States in a situa- know if police did not probable requiring rule to the tion suspects only or hostile involving four tion Under an individual. detain search and the offi- suspect giving possibly armed briefly one some- may detain Terry, an protecting responsibility suspicion cer the added or she has reasonable one properly be, been, Michelletti was person the civilians. or is about where activity. frisked because some criminal An involved in actually concealed. and for weapon may also frisk the detainee cer then facing is danger “justified these officers were in believ- weapons if the officer is that a testimony given is the individual ... armed ing underscored that to death and friend was shot to the officer or presently fellow Thus, prior. at 1881. only two weeks at 88 S.Ct. in El Paso others.” Id. stop suspicion justifies that all in view evidence We patdown a lawful does not sanction also in favor of the verdict. ferences reasonably unless the officers search (5th Martinez, 975 F.2d is armed dan- the detainee that Cir.1992), Findings of cert. denied opinion improperly gerous. majority’s challenged only for clear error. fact can be requirements as one. treats these Richardson, any not find We do stop here. reversible error investigato- that an It is well established detaining ry stop proper only is CONCLUSION suspicion “that a reasonable officer has Perry had reason- that We find Officer activity may afoot.” Id. at appel- frisk the suspicion case, how- at 1884. In the instant frisk, the concealed The fruit of that lant. ever, is devoid of evidence record into properly admitted pistol, was therefore Perry warranted in sus- that reasons, we For all the above evidence. attempt- pecting Michelletti violated that any criminal laws. ed to violate AFFIRM. concluded that The district court Michel- WILLIAMS, Judge, JERRE S. of the Texas section 101.72 letti violated dissenting: (TABC), Beverage which Alcoholic Code pur- consumption of beer on-site that Offi- forbids the court determined district only for supplier licensed Johnny Mi- chased from stop and frisk of Perry’s cer consumption.1 But even off-premises and it refused justified, chelletti was manifestly unestab- important point Michellet- handgun found in suppress the concedes, rec- majority the dis- lished. majority As affirms ti’s Bar reveal whether Alacran’s not ord does not I do decision. Because trict court’s 101.72(d). offender, $200. § Id. multiple Even for a only $100 to a fine between penalties amount neighborhood frequented was in a mixed-beverage permit that carries users, alone, drug standing It is fanci- is not carry almost definition. a basis bars converse, profit- that a imagine concluding himself was ful merely an off- would hold seeking engaged “bar” criminal conduct. consump- and forbid on-site premise license Id. at 99 S.Ct. at 2641. short, implausible circum- only the tion. Brown, As in the record fails to establish carried an off- Alacran’s Bar stance detention was warranted Michelletti’s support arrest of license premise would by Perry’s asserted that Michel- 101.72, inferred violating engaged in letti himself was criminal be- open container. possession of the from his concede, however, willing havior. am 101.72, regulatory than TABC’s Other possessed good have purveyors generally governs scheme faith, inaccurate, though belief that Michel- See, beverages, buyers. alcoholic possession of the beer outside the letti’s V.T.C.A., Beverage Code Alcoholic e.g., prohibited by regulations. TABC bar was beverage 28.10(b) mixed (prohibiting a Additionally, charges 101.07 TABC § allowing patron to take a permittee peace “detecting officers with viola- (bar- premises), off the apprehending tions and offenders.” A beverages removal of alcoholic ring the stop of Michelletti could therefore be brief club), private premises of a from the justified investiga- as of an officer’s part off-premise licensee (forbidding an tion of Alacran’s Bar was a mixed whether selling opened to or consumed beer private establishment or club that 105.05(c) premises), and on or near the Michelletti to take his had allowed beer purveyor from on-premise an (prohibiting premises. Perry, from the howev- a.m.). only oth- selling after 2:00 beer er, never such a basis. claimed the arrest provision that authorizes er code possession of a beer patron for of a bar patron play into outside a bar comes the frisk consuming the beer after hours. Id. that, assuming light in Even of all no refer- Perry, made 105.06. circumstances, Perry had sufficient reason- that “it ence the time when stated to Terry a valid able to conduct a in of Texas law exit bar

was a violation justified in stop, agree I do that he was beverages.” Addi- of alcoholic possession subsequent frisk. To deter- conducting the district court tionally, the found question of whether an separate mine the place at 2:00 a.m. Under 105.- stop took detainee, frisking in a justified 06, until after 2:15 a.m. occurs no violation objective an judge against facts we factually case of Brown v. similar reasonably prudent standard: “a Would Texas, 61 443 believe, ‘specific and man ... based on (1979), In is instructive. 357 L.Ed.2d facts,’ safety or that his that articulable Brown, held a unanimous danger”? in United States others [was] detaining unjustified in that officers (5th Cir.1992) Rideau, walking down as was the defendant banc) (en (quoting Terry, 392 U.S. at drug problem area” “high a alley amid 1883). S.Ct. at suspicious”: he “looked merely because in had watched three The officer is that none case State’s flaw minutes. Two of for ten or twelve men preceding the circumstances times a a dozen those men walked a appellant justified detention of eers’ window, studying it and particular store was in- suspicion that he reasonable the offi- each other. When consulting with in criminal conduct. Officer volved men to ask their names stopped cer appellant’s trial Venegas testified at He business, iharticulately. they mumbled suspi- alley in “looked the situation two and discovered them therefore frisked cious,” point he was unable conclusion, held that Supreme Court revolvers. supporting facts [foot- justifiably reasonably prudent officer ... The fact note omitted] asking any ques- tion for the frisk. Before casing the store and men were suspect the tions, Perry ap- directed Michelletti to Rideau, robbery. were armed car, beer, put down his proach area at high-crime patrolling officers car, hands on the and submit to a place his standing in the middle Rideau night saw complied patdown. Michelletti without flashed their After the officers the road. or resistance. Unlike the situa- comment out of the road. lights, Rideau stumbled Terry, tion in the officers here did not Rideau, suspecting approached The officers acting suspiciously be- observe him they asked intoxication. When public accosting him. Unlike the officers in fore name, nervous and appeared Rideau Rideau, Perry question Terry and did not prompting the frisk and dis- away, pulled conducting Michelletti before the frisk. placed particu- covery gun. This court Rideau, in the defendant Unlike nervousness emphasis on both Rideau’s lar nervous, mumble, appear did not draw away holding in that the offi- backing away confronted. He submitted suspecting he was justified cers were nothing poten- authority and did that was dangerous. Id. at 1575. armed and tially threatening. Neither was Rideau emphasized This court Rideau subjected being to the intrusive frisk of right to frisk have a “the [do not] “put up against a wall or across a car and night high anyone on the street at subjected as Michel- to a shake down” was neighborhood,” must be crime Rideau, letti. 969 F.2d at 1575-76. And “specific and point articulable unlike the officers in indicating safety that their is in dan- facts (5th Cir.1993) Wangler, ger justify patdown.” Id. at 1575-76. curiam), (per reasonably suspected who specific drug and articulable offered defendant was a dealer had found occasions, suppres- guns prior near his truck on Perry testified at the facts here. bulge in Perry did not detect a Michelletti’s suspi- hearing sion that Michelletti seemed pants front he had his his cious because hand; his left pocket; he drank beer with suppress Courts evidence seized viola calm, cocky”; he was but “a little bit almost progeny, po and its even in tion of officers, eye contact with the and he made tentially hazardous encounters such as away. Perry further then looked stat- and on-the-street confrontations. roadside Cole, See, e.g., that neither Mi- v. ed United States cross-examination 897, (5th Cir.1980), denied, 450 899 cert. other three men outside chelletti nor the 1763, 1043, 101 68 L.Ed.2d 241 U.S. S.Ct. threatening. The anything the bar did (1981) discovery pistol (suppressing the of a cer admitted that Michelletti’s following patdown search there because beer, pocket, and his attitude of- proof suspect might was no “[n]othing suggest he fered that would dangerous); v. armed and United States was armed at that time.” 637, (E.D.Tex. P.Supp. McQuagge, 787 653 significant. This concession is The con- evidence, 1991) physical in (suppressing “specific ceded absence of and articulable firearms, no cluding where “there is evi Supreme facts” is critical. As the Court in the record ... that the law en dence Terry, first cautioned in an officer’s belief arrest forcement officers who made the suspect dangerous that a is armed were reasonably believed the defendants upon only a mere “incho- cannot be based stopped”); unparticularized suspicion or ate and State, (Tex.App.— 827 S.W.2d 49 Harris v. ” 21, Terry, ‘hunch.’ 392 U.S. at 88 S.Ct. 1992, denied) Houston review [1st Dist.] warning, important not fol- at 1883. This cocaine (suppressing crack because majority, reiterated ver- lowed unparticular- frisking upon officer relied Maryland in the recent case of batim hunches, articulated and indi ized not an 332, 1093, Buie, 325, 110 494 U.S. S.Ct. suspicion that the vidualized 1097, (1990). armed). 108 L.Ed.2d 276 response Michelletti’s when the officers Court has The United States of dis- provided justifica- upheld suppression him no contraband confronted also briefing specify a schedule will The Clerk pat- unjustified during an similarly covered Illinois, supplemental 444 U.S. briefs. filing in Ybarra down search 338, L.Ed.2d S.Ct. search had a warrant Ybarra, officers The offi heroin. and its bartender bar search patdown conducted cers fact despite the Ybarra, patron, bar suggesting gestures had made no Ybarra conceal conduct, attempts to no criminal America, UNITED STATES contraband, suspicious statements. Plaintiff-Appellee, of Ybarra patdown held The Court pro mere person’s “a invalid because suspected independently to others pinquity BOTELLO, Defendant-Appellant. Miguel more, not, activity without does 92-7134. No. search probable give rise at 342 100 S.Ct. 444 U.S. at person.” Appeals, York, 392 New v. State (citing Sibron Fifth Circuit. 62-63, (1968)). L.Ed.2d May hour, high-crime the late Certainly 7, 1993. June Rehearing Denied individuals of other area, presence justified bar rear door outside And guard. their being on the officers light, Officer generous viewed belief good possessed faith apparently violated, thus law had been investigation. Michel- warranting further nothing to behavior, did letti’s he was suspicion that the reasonable raise true that it dangerous. While is armed and imper- weapon, this patdown revealed on hind- justified cannot be missible search disagree with the Accordingly, I sight. conclusion, vacate and would majority’s

the conviction. AND REHEARING PETITION FOR

ON REHEARING FOR

SUGGESTION BANC

EN 7, 1993.

July KING, POLITZ, Judge, Before Chief HIGGINBOTHAM, JOLLY,

GARWOOD, SMITH, DUHÉ, JONES,

DAVIS, GARZA, BARKSDALE, E.

WIENER,

DeMOSS, Judges.

BY COURT: THE service the Court active A member suggestion poll

having requested majority rehearing en banc and having voted service

judges in active banc, rehearing en granting favor of shall be

IT IS ORDERED that en banc oral by the Court

reheard be fixed. date hereafter to

argument on a

Case Details

Case Name: United States v. Johnny Carl Michelletti

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 7, 1993

Citation: 991 F.2d 183

Docket Number: 92-8274

Court Abbreviation: 5th Cir.