UNITED STATES of America, Plaintiff-Appellee, v. Michael D. MENARD, Defendant-Appellant.
No. 96-1128.
United States Court of Appeals, Eighth Circuit.
Decided Sept. 6, 1996.
Submitted May 14, 1996.
The District Court appears to have been right with respect to both of its holdings, but we need not pursue the matter further than to cite the Supreme Court‘s recent opinion in United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). Ursery holds that civil forfeiture proceedings are not, in the absence of extraordinary circumstances, punitive for double-jeopardy purposes. We see nothing in the present case to take it out of the general rule announced in Ursery. We observe, in addition, that even apart from Ursery, most of the items forfeited in the state proceeding were either proceeds or tools of Quinn‘s drug-trafficking offense. The proceeding to forfeit them would therefore, in any event, even before the decision in Ursery, have been considered remedial rather than punitive.
Affirmed.
Nicholas Drees, Des Moines, IA, argued, for appellant.
Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
LOKEN, Circuit Judge.
After Michael D. Menard pleaded guilty to possessing methamphetamine with intent to distribute and to using or carrying a firearm in relation to a drug offense, the district court1 sentenced him to two consecutive sixty-month prison terms. Menard appeals, contesting only the court‘s earlier denial of his motion to suppress evidence seized during a traffic stop. United States v. Menard, 898 F.Supp. 1317 (N.D.Iowa 1995). He argues that police searched him for weapons solely because they found a concealed weapon on the vehicle‘s other passenger, a search that is invalid under United States v. Flett, 806 F.2d 823 (8th Cir.1986). We affirm.
Shortly before 2:00 a.m. on May 2, 1995, Police Officer Hawley stopped an automobile that failed to dim its headlights on Highway 71 just outside of Spencer, Iowa. Hawley recognized Michael Walker, one of the two passengers, from a previous narcotics arrest, and had information from an Iowa drug task force that Walker used drugs and might be involved in drug sales. Hawley asked the driver, Lisa Jensen, if he could search the auto, and she consented. Jensen, Walker, and Menard, the other passenger, then exited and stood toward the rear of the auto while Hawley conducted his search.
Before Hawley completed the search, Officer Larsen arrived on the scene to assist. When Larsen learned Walker‘s identity, he reminded Hawley of a recent “Officer Safety Warning” bulletin advising that the Clay County Sheriff‘s Department had information that Walker carried an automatic pistol. Hawley did a pat-down search of Walker, found a loaded .32 caliber handgun, and arrested Walker for carrying a concealed weapon. Officer Larsen then asked Menard if he was carrying a gun. When Menard said no, Officer Larsen said he would do a pat-down search. Menard then admitted that he was carrying a .410 caliber handgun and handed the weapon to Larsen. Menard was arrested, and a post-arrest search revealed that he was carrying ten small plastic bags of methamphetamine.
Following the suppression hearing at which Hawley and Larsen testified, the district court concluded that it was reasonable for the officers to take action to protect their safety, and that “the pat-down search of Menard, once the weapon was found on Walker, was the least intrusive method to determine rapidly whether any further weapons were in the hands of anyone else involved in the stop.” 898 F.Supp. at 1333. Therefore, the court denied Menard‘s motion to suppress.
On appeal, Menard concedes that Officer Hawley lawfully stopped the auto for a minor traffic violation, see
A police officer who has legitimate contact with another person, and who has
In this case, Officer Hawley stopped an auto for a traffic violation at 2:00 a.m. on a relatively deserted highway. Hawley was outnumbered by the auto‘s occupants. When he recognized one passenger as a possible drug trafficker, he obtained consent to search the car. The Supreme Court has frequently noted the inherent danger traffic stops pose to police officers and the consequent likelihood that minimally intrusive weapons searches will be reasonable. See Michigan v. Long, 463 U.S. 1032, 1047-50, 103 S.Ct. 3469, 3479-81, 77 L.Ed.2d 1201 (1983); Foley v. Connelie, 435 U.S. 291, 298, 98 S.Ct. 1067, 1072, 55 L.Ed.2d 287 (1978); Pennsylvania v. Mimms, 434 U.S. 106, 109-10, 98 S.Ct. 330, 332-33, 54 L.Ed.2d 331 (1977); Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972). Thus, Officer Hawley could have reasonably conducted pat-down searches of Walker and Menard as they exited the auto, so that Hawley could complete his search without fear that its occupants would prove to be armed and dangerous should contraband be discovered. See United States v. Douglas, 964 F.2d 738, 741 (8th Cir.1992); United States v. Brown, 913 F.2d 570, 572 (8th Cir.), cert. denied, 498 U.S. 1016, 111 S.Ct. 590, 112 L.Ed.2d 594 (1990); United States v. Whitfield, 907 F.2d 798 (8th Cir.1990); cf. United States v. Jones, 759 F.2d 633, 640 n. 10 (8th Cir.) (129 officers killed pursuing and stopping traffic violators in the ten years ending in 1983), cert. denied, 474 U.S. 837, 106 S.Ct. 113, 88 L.Ed.2d 92 (1985). Menard argues that Hawley evidenced little if any concern for his safety while searching the auto before Officer Larsen arrived. However, Fourth Amendment reasonableness does not require “that a policeman must feel ‘scared’ by the threat of danger.” United States v. Tharpe, 536 F.2d 1098, 1101 (5th Cir.1976) (en banc).3
Hawley did not pat down Walker and Menard as they exited the auto. Indeed, Walker was not searched until Officer Larsen arrived and reminded Hawley of the Officer Safety Warning. Menard argues that this delay confirms that there was no particularized suspicion to frisk him, but this ignores the realities of the situation. Finding a gun on Walker and arresting him heightened the threat to officer safety because an armed associate of Walker might use force to free him. See United States v. Simpson, 992 F.2d 1224, 1227 (D.C.Cir.), cert. denied, 510 U.S. 906, 114 S.Ct. 286, 126 L.Ed.2d 236 (1993); United States v. Bell, 762 F.2d 495, 501 (8th Cir.), cert. denied, 474 U.S. 853, 106 S.Ct. 155, 88 L.Ed.2d 128 (1985); Tharpe, 536 F.2d at 1100. In Ybarra, the Supreme Court held that execution of a warrant to search a tavern and its bartender did not justify a pat-down search of every patron. See 444 U.S. at 91-93, 100 S.Ct. at 342-43. But Walker and Menard did not just happen to be together in a public place. “The relationship among the patrons at a bar is quite different from the relationship among the occupants of a house or car.” United States v. Vaughan, 718 F.2d 332, 335 n. 6 (9th Cir.1983). Nor may we ignore the totality of the circumstances of this encounter — a lonely road, late at night, a traffic violation, and
After careful review of the suppression hearing record, we conclude that the district court correctly rejected Menard‘s contention that he was searched for weapons “based on nothing more than his companionship with Mr. Walker.” Applying the totality-of-the-circumstances standard mandated in Flett, we affirm the order denying Menard‘s motion to suppress and the judgment of the district court.
MCMILLIAN, Circuit Judge, concurring specially.
I concur specially. This is a fact-intensive case, and I write separately to emphasize that the opinion applies the analysis in United States v. Flett, 806 F.2d 823, 827 (8th Cir.1986), and should not be read as a retreat from its holding rejecting the automatic companion rule and instead adopting a totality-of-the-circumstances analysis, in which companionship alone is not enough to justify a pat-down search, but companionship is one circumstance to be considered in determining the overall reasonableness of the officer‘s actions.
I also write separately to clarify that this case does not involve the subjective-objective issue recently resolved by the Supreme Court in Whren v. United States, ___ U.S. ___, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
Because I agree that in the present case there was more than mere companionship, I concur in the decision to affirm the district court‘s denial of the motion to suppress.