UNITED STATES оf America, Appellee, v. Michael Deshawne GLENN, also known as George Loper, Appellant.
No. 98-1361MN.
United States Court of Appeals, Eighth Circuit.
Decided Aug. 27, 1998.
152 F.3d 1047
Submitted June 9, 1998.
We reject James‘s contentiоn that there is no evidence to suggest that he committed perjury while on the stand. Much of his testimony, particularly with respect to the ownership and lien status of a certain parcel of property, directly conflicts with other evidence рresented at trial. The District Court did not clearly err in finding that James committed perjury and in increasing his base offense level by two levels.
In conclusion, we affirm the judgment of the District Court.
Robert D. Richman, Minneapolis, MN, argued, for Appellant.
Before FAGG, BRIGHT, and BEAM, Circuit Judges.
FAGG, Circuit Judge.
Following his conviction for being a felon in possession of a firearm, Michael Deshawne Glenn appeals the district court‘s denial of Glenn‘s motion to suppress. We affirm.
On June 2, 1997, at about 5:30 p.m., state trooper John Thompson stopped Glenn on the interstate in Minneapolis, Minnesota, for driving with a cracked windshield and a broken taillight. When Thompson approached Glenn‘s vehicle, Glenn immediately and repeatedly apologized. Thompson asked Glenn for a driver‘s license and proof of insurance. Glenn said he did not have his driver‘s license, which Thompson interpreted to mean Glenn did not have his license with him. Glenn also failed to produce proof of insurance. Glenn did, however, give Thompson a state welfare identification card containing his name and photograph. Thompson recognized Glenn‘s name from Thompson‘s former employment with an area jail, but could not recall the nature of Glenn‘s offense. Because the card Glenn provided was insufficient to identify him for purposes of the traffic stop, Thompson asked Glenn to come back to his patrol car so Thompson could access Glenn‘s driving record on Thompson‘s computer.
When Glenn and Thomрson reached the patrol car, Thompson searched Glenn for weapons before placing him in the back seat. During this search, Thompson found a loaded semi-automatic handgun in Glenn‘s pants pocket. Thompson then arrested Glеnn for carrying a concealed weapon and handcuffed him. Thompson also took out Glenn‘s wallet to locate additional identification and found a driver‘s license with both the name “George Loper” and Glenn‘s photograph. After Thоmpson placed Glenn in the back of the patrol car and began asking routine identification questions, Glenn volunteered that he had a felony record. Thompson then remembered Glenn had been at the jail for a drive-by shooting. Thompson rаn a computer check on Glenn and learned Glenn did not have a valid license.
Glenn was charged with being a felon in possession of a firearm. See
On appeal, Glenn does not contest the traffic stop‘s validity, Thompson‘s request that he step out of his vehicle, or Glenn‘s detention for a computer check of his license. Glenn contends only that the motion to suppress should have been granted because there was no reasonable, articulable suspicion sufficient to justify the pat-down search and because the gun would not inevitably have been discovеred. We review the facts supporting the district court‘s denial of the motion to suppress for clear error and review de novo the legal conclusions based on those facts. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Cunningham, 133 F.3d 1070, 1072 (8th Cir.1998), cert. denied, ___ U.S. ___, 118 S.Ct. 1823, 140 L.Ed.2d 960 (1998).
We agree with Glenn that the reasonable, articulable suspicion needed to justify the pat-down search is absent in this cаse. The United States Supreme Court has held a warrantless pat-down search for weapons is permissible when there are “specific and articulable facts which, taken together with rational inferences from those facts,” would lead а police officer reasonably to believe the
At the time of the search in this case, Thompson knew he could only ticket Glenn for the equipment violations that initially prоmpted the traffic stop. Additionally, Thompson testified he could not arrest Glenn for driving without his license in his possession. Thompson also knew that Glenn apologized repeatedly when Thompson approached Glenn‘s car and was a former jail detainee. Because Thompson did not recall the violent nature of Glenn‘s earlier offense until after he searched Glenn, Thompson‘s recollection of Glenn as a former jail detainee provided no factual basis for believing Glenn was dangerous and might be armed at the time Thompson conducted the search. Cf. United States v. Woodall, 938 F.2d 834, 837 (8th Cir.1991) (stating officer had reasonable suspicion sufficient to search driver during routine traffic stop because officer recognized driver as drug trafficker and knew drug traffickers often carried weapons). Indeed, Thompson testified that Glenn‘s behavior did not cause him to fear for his safety and that he had no reason to believe Glenn had a gun. Instead, Thompson testified he searched Glenn solely beсause this was his routine practice when placing drivers in the back seat of his car during traffic stops. In these circumstances, we conclude Thompson lacked a reasonable, articulable suspicion that Glenn was armed and dangerous at the time of the search. Cf. Menard, 95 F.3d at 10-11 (finding reasonable, articulable suspicion because officer was outnumbered by vehicle‘s occupants, officer recognized one passenger as drug trafficker found to be carrying a weapon, аnd stop occurred late at night on deserted road); Abokhai, 829 F.2d at 670 (finding reasonable, articulable suspicion because of Abokhai‘s equivocal responses to questions, recent armed robbery in the area, possible presence of unaсcounted for third person, and Abokhai‘s suspicious behavior).
Despite the absence of any suspicion that Glenn was armed and presently dangerous, the Government would have us hold Thompson‘s decision to place Glenn in his patrol car during this routine stop was sufficient to justify the pat-down search solely because this decision placed Thompson in a potentially vulnerable position. The Government‘s argument is contrary to Terry‘s reasonable suspicion requirement and would permit lаw enforcement officers to pat down all traffic offenders simply by choosing to place them in the back seat of patrol cars during traffic stops. An officer‘s decision to place a traffic offender in the back of a patrol car does not create a reasonable, articulable suspicion to justify a pat-down search that the circumstances would not otherwise allow. Cf. Abokhai, 829 F.2d at 670 (holding pat-down search of Abokhai before placing him in back seat of рatrol car permissible because officers had reasonable suspicion Abokhai was armed and presently dangerous based on totality of circumstances).
Although the search was not justified at the time, the gun need not be suppressed bеcause Thompson would have inevitably discovered it in a search incident to Glenn‘s arrest for driving without a license. Illegally seized evidence may be admitted if the Government proves “by a preponderance of the evidence: (1) that thеre was a reasonable probability that the evidence would have been discovered by lawful means in the absence of police misconduct, and (2) that the government was actively pursuing a substantial, alternative line of investigation at the time of the constitutional violation.” United States v. Conner, 127 F.3d 663, 667 (8th Cir.1997); see Nix v. Williams, 467 U.S. 431, 444 & 448, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Here, the Government met its burden of proof on both parts of this test.
When the search took place in this case, the record shows Thompson was in the process of identifying Glenn as a permissible part оf the initial traffic stop. See United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993) (finding driver‘s continued detention permissible because detention was rea-
Although Thompson lacked a reasonable, articulable suspicion tо justify the pat-down search conducted before placing Glenn in the back of his patrol car, we conclude Thompson would inevitably have discovered the handgun once he performed the license check and arrested Glenn. Thus, the district court properly denied Glenn‘s motion to suppress. We affirm Glenn‘s conviction.
BEAM, Circuit Judge, concurring.
I concur in the result reached by the court and I agree that Glenn‘s weapon would have been “inevitably discovered.” However, I would not reach that issue bеcause I believe that Officer Thompson did not violate Glenn‘s Fourth Amendment rights in the first instance. We deal here with a protective frisk described in Terry v. Ohio, 392 U.S. 1, 88, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This security “pat down” was conducted just before Glenn, a legally detained traffic violator, was plaсed in the rear seat of the police vehicle so that Thompson could turn his attention toward checking Glenn‘s licenses, registrations, warrants and other relevant information.
While the constitutional analysis under Terry is necessarily fact specific, it is essentially an objective tеst. Cf. Klingler v. United States, 409 F.2d 299, 304 (8th Cir.1969). It is my view that anytime the circumstances surrounding a traffic stop allow, as here, the placing of a detainee inside a police car with a lone officer, the so-called Terry doctrine permits an out-side-the-clothing security search. Thus, undеr the facts of this case, a reasonable police officer was constitutionally entitled to carry out the protective frisk conducted by Thompson. Accordingly, I would affirm Glenn‘s conviction on that basis.
FAGG
CIRCUIT JUDGE