United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2699
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Theotis A. Muhammad, *
*
Appellant. *
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Submitted: March 12, 2010
Filed: May 11, 2010
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Before BYE, COLLOTON and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Theotis Muhammad was indicted on one count of aiding and abetting the armed
robbery of a credit union, in violation of 18 U.S.C. §§ 2113(a), (d), and 2, and one
count of aiding and abetting the use of a firearm during a crime of violence, the
robbery, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Before trial, Muhammad
moved to suppress evidence seized during a pat-down search of his person conducted
less than two hours after the robbery. The district court1 denied the motion, and a jury
convicted Muhammad on both counts. Muhammad appeals the denial of the motion
to suppress. For the following reasons, we affirm.
I. BACKGROUND
On May 28, 2008, at approximately 11:15 a.m., an armed robbery occurred at
the United Labor Credit Union in Kansas City, Missouri. When FBI Special Agent
Kevin McCrary arrived at the credit union at 11:50 a.m., officers from the Kansas City
Police Department and FBI special agents had already begun to investigate the
robbery. Officers told Agent McCrary that a man, later determined to be Theotis
Muhammad, came into the credit union minutes before the robbery and asked for the
key to the restroom. Muhammad then left the credit union and entered a common area
in the building where the credit union is located, which housed the restroom. A short
time later, a second man, later determined to be Yacub Williams, entered the credit
union carrying a handgun and wearing a black hooded sweatshirt and gloves.
Williams approached a teller, brandished the handgun, and demanded cash. Williams
took more than $2,000 and fled the credit union, running toward the nearby Park
Highlands apartments. Moments later, Muhammad returned the restroom key to the
credit union and left, heading in the same direction as Williams.
Agent McCrary eventually learned that officers were speaking with two men
at the Park Highlands apartments who matched witnesses’ descriptions of the robber
and the man who borrowed the key to the restroom. Agent McCrary then viewed the
credit union’s surveillance videos. The videos showed a clear image of Muhammad’s
face and also showed Muhammad talking to Williams in the common area
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable Sarah
W. Hays, United States Magistrate Judge for the Western District of Missouri.
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immediately before Williams robbed the credit union. Agent McCrary inferred that
Muhammad was casing the credit union for Williams.
At approximately 12:30 p.m., Agent McCrary arrived at the apartment complex
and approached the two men with whom officers had been speaking, Muhammad and
Williams. Agent McCrary recognized Muhammad as the man who requested the
restroom key and noticed that Williams was wearing dark black Nike Air Jordan shoes
with a royal blue stripe, which matched the shoes the robber wore. Agent McCrary
asked Muhammad if he was the man who entered the credit union moments before the
robbery. Muhammad confirmed that he was in the credit union before the robbery and
that he had borrowed the key to the restroom.
Agent McCrary handcuffed Muhammad and performed a pat-down search.
Agent McCrary testified that he performed the search “to determine whether or not
[Muhammad] had a weapon.” During the pat-down, Agent McCrary felt a “hard
object” approximately four inches long and three inches wide in the back pocket of
Muhammad’s pants. He asked Muhammad what the object was, and Muhammad
stated that it was his wallet. Observing that the object “felt like an item that could
conceal a weapon,” Agent McCrary removed the object from Muhammad’s pocket.
The object turned out to be a bi-fold leather wallet that Agent McCrary testified was
“bulging with cash,” such that he could see large amounts of cash without opening the
wallet. Agent McCrary seized the cash and counted $541. He then matched five of
the $20 bills in Muhammad’s wallet to five “bait bills” with recorded serial numbers
that were stolen during the robbery and placed Muhammad under arrest.
A federal grand jury returned an indictment charging Muhammad with aiding
and abetting Williams’s robbery of the credit union and Williams’s use of the handgun
during the robbery. Muhammad moved to suppress the evidence seized during the
pat-down search, arguing that the search exceeded the scope of a protective search
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allowable under the Fourth Amendment.2 The district court denied the motion, and
a jury convicted Muhammad on both counts. The district court sentenced Muhammad
to 180 months’ imprisonment. Muhammad appeals the denial of his motion to
suppress.
II. DISCUSSION
On appeal, Muhammad concedes that Agent McCrary was permitted to conduct
a limited pat-down search for weapons under Terry v. Ohio, 392 U.S. 1 (1968).
Muhammad argues that Agent McCrary impermissibly expanded the scope of the
search by removing the wallet from Muhammad’s pocket and seizing the cash
protruding from the wallet. We must first determine whether Agent McCrary was
permitted to remove the wallet from Muhammad’s pocket. If Agent McCrary lawfully
removed the wallet, we must then decide whether he was permitted to seize the cash
protruding from the wallet.
When considering a motion to suppress evidence, we review the district court’s
findings of facts for clear error, and we review de novo whether the search violated
the Fourth Amendment. United States v. Inman, 558 F.3d 742, 745 (8th Cir.) (citing
Ornelas v. United States, 517 U.S. 690, 698-99 (1996); United States v. Olivera-
Mendez, 484 F.3d 505, 509 (8th Cir. 2007)), cert. denied, 558 U.S. ---, 130 S. Ct. 304
(2009). “Because this case proceeded to trial, we examine the entire record, not
merely the evidence adduced at the suppression hearing, in considering the denial of
[the] motion to suppress.” Id. (citing United States v. Anderson, 339 F.3d 720, 723
(8th Cir. 2003)).
2
Muhammad also moved to suppress certain statements he made to law
enforcement officers, but that issue is not before us on appeal.
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Under Terry, a law enforcement officer may conduct a warrantless pat-down
search “for the protection of himself or others nearby in order to discover weapons if
he has a reasonable, articulable suspicion that the person may be armed and presently
dangerous.” United States v. Roggeman, 279 F.3d 573, 577 (8th Cir. 2002) (citing
Terry, 392 U.S. at 30). “Because the ‘sole justification’ for such a search is the
protection of the officer and others, its scope must be confined to a search reasonably
designed to discover concealed weapons.” Id. (quoting Terry, 392 U.S. at 29). An
officer may, however, seize other evidence discovered during a pat-down search for
weapons as long as the search “stays within the bounds marked by Terry.” United
States v. Hanlon, 401 F.3d 926, 930 (8th Cir. 2005) (quoting Minnesota v. Dickerson,
508 U.S. 366, 373 (1993)).
Muhammad contends that because Agent McCrary knew that the object in
Muhammad’s back pocket was not a weapon or an object concealing a weapon, Agent
McCrary could not lawfully remove the wallet from Muhammad’s pocket. See
Hanlon, 401 F.3d at 930 (concluding that an officer may not seize an item from a
person’s pocket “after having concluded that no weapons are present” (citing
Dickerson, 508 U.S. at 378)). The record does not support this assertion. Agent
McCrary testified that during a pat-down search it is often difficult to tell whether an
object is a weapon or might conceal a weapon merely by touching the object. He
stated that officers must generally “pull [the suspicious object] out and actually
inspect it” to determine whether the object presents a safety concern. He further
testified that he was not certain what the hard four-inch long and three-inch wide
object in Muhammad’s pocket was, but he said that the item “felt like an object that
could conceal a weapon.” The district court credited Agent McCrary’s testimony, and
we find no basis in the record to disagree with the district court. See id. (stating that
a district court’s decision to credit testimony is “virtually unreviewable on appeal”
(quoting United States v. Marks, 328 F.3d 1015, 1018 (8th Cir. 2003))). Thus, we
reject Muhammad’s assertion that Agent McCrary knew that the object in
Muhammad’s back pocket was not a weapon or an object concealing a weapon.
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Furthermore, the pat-down search that Agent McCrary performed was
reasonably designed to discover concealed weapons. See Roggeman, 279 F.3d at 577-
78 (concluding that “[c]ourts are required to apply an objective test” to determine
whether a protective search was justified). Muhammad concedes that Agent McCrary
was permitted to perform a pat-down search to determine whether Muhammad was
carrying a concealed weapon. Agent McCrary then reasonably determined that the
four-inch long and three-inch wide “hard object” in Muhammad’s back pocket could
be a weapon or could conceal a weapon that presented a threat to officer safety, such
as a knife, box cutter or razor blade. An objectively reasonable officer in Agent
McCrary’s situation would not be required to blindly accept Muhammad’s assertion
that the object he felt was a wallet rather than a weapon or an object that could conceal
a weapon. See Terry, 392 U.S. at 23 (“[I]t would be unreasonable to require that
police officers take unnecessary risks in the performance of their duties.”). Indeed,
a dangerous weapon such as a small knife, box cutter or razor blade could have been
concealed in the wallet itself. Accordingly, this pat-down search stayed within the
bounds of Terry, and the Fourth Amendment permitted Agent McCrary to remove the
object from Muhammad’s pocket. However, our inquiry does not end here. We must
next decide whether Agent McCrary lawfully seized the cash protruding from the
wallet.
“[S]earches and seizures ‘conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well delineated
exceptions.’” Dickerson, 508 U.S. at 372 (citations omitted) (quoting Thompson v.
Louisiana, 469 U.S. 17, 19-20 (1984) (per curiam)). One such exception is the plain-
view doctrine. The plain-view exception allows officers to seize contraband or other
evidence of a crime in limited situations. See United States v. Clay, 579 F.3d 919, 932
(8th Cir. 2009), cert. denied sub nom. Stovall v. United States, 559 U.S. ---, 78
U.S.L.W. 3481 (2010). Under the plain-view exception, officers may seize an object
without a warrant if they are lawfully in a position from which they view the object,
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the incriminating character of the object is immediately apparent, and the officers have
a lawful right of access to the object. Dickerson, 508 U.S. at 375 (citing Horton v.
California, 496 U.S. 128, 136-37 (1990); Texas v. Brown, 460 U.S. 730, 739 (1983)
(plurality opinion)); see also United States v. Bustos-Torres, 396 F.3d 935, 944 (8th
Cir. 2005).
Because we conclude that Agent McCrary lawfully removed the wallet from
Muhammad’s pocket and Muhammad does not dispute that the cash was visible
without opening the wallet, the first and third requirements of the plain-view
exception are met. The only remaining question is whether the incriminating nature
of the cash was immediately apparent to Agent McCrary. “Immediately apparent” in
the Fourth Amendment context means that the officer performing the search has
“probable cause to believe an item is incriminating.” United States v. Green, 560 F.3d
853, 858 (8th Cir.) (citing Skokos v. Rhoades, 440 F.3d 957, 961 (8th Cir. 2006)), cert.
denied, 558 U.S. ---, 130 S. Ct. 288 (2009); Bustos-Torres, 396 F.3d at 944-45 (citing
Dickerson, 508 U.S. at 376). Probable cause does not require absolute certainty; it
only requires “that the facts available to a reasonably cautious man would warrant a
belief that certain items may be contraband or stolen property or useful as evidence
of the crime.” Green, 560 F.3d at 858 (quoting United States v. Garner, 907 F.2d 60,
62 (8th Cir. 1990)).
Here, Agent McCrary had recently viewed the credit union’s security videos
and identified Muhammad entering and exiting the credit union and thereafter talking
to Williams moments before Williams committed the armed robbery. Agent McCrary
had been informed that Williams stole over $2,000 in cash and fled in the direction of
the Park Highlands apartments and that Muhammad walked toward the same
apartment complex after the robbery. Officers found Muhammad and Williams
together at the apartment complex less than one hour after the robbery. Agent
McCrary then saw cash protruding from Muhammad’s wallet. While cash is not
inherently incriminating, under these circumstances, Agent McCrary had probable
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cause to believe that the cash protruding from the wallet was evidence of the robbery.
See Bustos-Torres, 396 F.3d at 945. Thus, the plain-view exception permitted Agent
McCrary to seize the cash, which then allowed him to confirm that five of the $20
bills were bait bills taken during the robbery. Accordingly, we conclude that the
search and seizure Agent McCrary performed was proper.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Muhammad’s
motion to suppress the evidence.
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