United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MARCH 2, 2007
February 26, 2007
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
_____________________
No. 05-31071
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HENRY MEREDITH,
Defendant-Appellant
----------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
(2:05-CR-00005)
----------------------
Before JONES, Chief Judge, WIENER, and BARKSDALE, Circuit Judges.
WIENER, Circuit Judge:
In September 2004, officers of the New Orleans Police
Department (“NOPD”) lawfully stopped an automobile for operating
without tail lights and for improper change of lanes. In
addition to the driver, the vehicle was occupied by one front-
seat passenger, Defendant-Appellant Henry Meredith. As
authorized by Pennsylvania v. Mimms1 and Maryland v. Wilson,2 the
officers ordered both the driver and Meredith to step out of the
1
434 U.S. 106, 111 (1977).
2
519 U.S. 408, 415 (1997).
vehicle. The driver did so, but Meredith remained seated. He
informed the officers that he was a paraplegic and thus
physically unable to exit. In response, one of the officers
opened the passenger-side door and conducted a visual inspection
of Meredith only. In so doing, the officer noticed a bulge in
Meredith’s pants that approximated the shape of a handgun. At
that point, the officer leaned into the car and patted down the
still-seated Meredith. The officer discovered a revolver loaded
with six hollow-point cartridges at the location of the bulge.
Meredith was arrested and subsequently indicted as a felon in
possession of a firearm.
Prior to trial, Meredith moved to suppress the revolver, the
ammunition, and a post-arrest statement that he made
acknowledging guilt. He contended that this evidence was
obtained in derogation of his Fourth Amendment rights. We now
logically extend the holdings of Mimms and Wilson and rule that,
after ordering an occupant to exit a vehicle and hearing that he
claims to be physically unable to do so, an officer may open the
occupant’s door and conduct a minimally necessary visual
inspection of the person of that occupant. Further, if this
inspection reveals articulable facts constituting reasonable
suspicion that the occupant is armed and dangerous, he may be
patted down to the same extent as he could have been if he had
2
complied with the order to exit the vehicle.
I. FACTS AND PROCEEDINGS
While on “proactive” patrol at approximately 8:30 p.m. on
the September night in question, NOPD Sergeant Anthony Micheu
observed NOPD Unit 286, occupied by Officers Gabe Swensen and
Oscar Ortiz, attempting to stop a vehicle at the intersection of
Louisiana Avenue and Danneel Street. Officer Micheu parked his
patrol car on the left side of the stopped vehicle and observed
Meredith in the front passenger seat of that car, “moving around
from within the passenger compartment of the vehicle.” Meredith
became “very nervous” when Officer Micheu approached the stopped
vehicle from the front.
At this time, Officer Swensen told Officer Micheu that the
vehicle had been stopped because it was operating without tail
lights and was improperly changing lanes. Officer Micheu
instructed Officers Swensen and Ortiz to order the driver and
Meredith to get out of the vehicle for the officers’ safety. The
driver complied, but Meredith told the officers that he was a
paraplegic, implying that he was physically unable to comply with
the exit order on his own. Meredith added that his paraplegia
resulted from a gun shot wound to the back.
While Officer Swensen was patting down the driver at the
rear of the vehicle, Officer Micheu opened the passenger-side
3
door and immediately observed a bulge shaped like a handgun in
the left rear side of Meredith’s pants. Officer Micheu then
reached inside the vehicle and patted down Meredith. The officer
recognized what he felt as a handgun and removed a fully loaded
.357 caliber revolver from Meredith’s pants.
After seizing the firearm, the officers conducted a
background check on Meredith and discovered that he was a
convicted felon and thus was unlawfully possessing the revolver.
Officer Micheu informed Meredith that he was under arrest and
advised him of his Miranda rights. Meredith told Officer Micheu
that he knew he was going to jail; that having been shot once
before, he carried the gun for protection.
The following January, a grand jury indicted Meredith on a
single count of being a felon in possession of a firearm.3 In
April, Meredith filed a motion to suppress the revolver, the
ammunition, and his post-arrest statement, insisting all had been
obtained in violation of his Fourth Amendment rights.
Specifically, Meredith contended that at the time Officer Micheu
opened the passenger-side door, he lacked reasonable suspicion to
believe that Meredith possessed a weapon or posed any danger to
the officers. Meredith argued that, absent reasonable suspicion,
3
See 18 U.S.C. § 922(g)(1), 924(a)(2).
4
Officer Micheu’s search was unconstitutional and its fruits thus
inadmissible in evidence.
In July 2005, without the benefit of an evidentiary hearing
(none having been requested by Meredith), the district court
denied Meredith’s motion to suppress. The court ruled that under
the totality of the circumstances —— the time of night and
dangerous location of the stop, Meredith’s movement and
nervousness, and the nature of the offense for which the vehicle
was stopped —— Officer Micheu had reasonable suspicion to believe
that Meredith was armed and posed a threat to the officers’
safety. A week after the district court’s ruling, Meredith
pleaded guilty without a plea agreement but reserved his right to
appeal the denial of his suppression motion.
The district court sentenced Meredith to 33 months
imprisonment to be followed by three years supervised release.
Meredith timely filed a notice of appeal.
II. LAW AND ANALYSIS
A. Standard of Review
Determinations of reasonable suspicion are reviewed de novo;
however, findings of fact are reviewed for clear error, and
deference is given to inferences drawn from those facts by both
5
the trial court and the involved law enforcement officers.4 We
may affirm a district court’s decision on any basis established
by the record.5
B. Substantive Law
The Fourth Amendment guarantees individuals the right “to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”6 Essentially, it is
designed to impose a standard of reasonableness on law
enforcement agents and other governmental officials to prevent
arbitrary invasions of a person’s privacy and security.7
Under Fourth Amendment jurisprudence existing at the time of
this incident and as conceded by defense counsel at oral
argument, a law enforcement officer making a traffic stop could
order the driver and any passengers to exit the vehicle pending
completion of the stop.8 The officer could not, however, frisk
the driver or any passenger without reasonable suspicion that he
was armed and dangerous.9
4
Ornelas v. United States, 517 U.S. 690, 699 (1996).
5
Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).
6
U.S. Const. amend. IV.
7
United States v. Hunt, 253 F.3d 227, 230 (5th Cir. 2001).
8
Wilson, 519 U.S. at 415; Mimms, 434 U.S. at 111.
9
Knowles v. Iowa, 525 U.S. 113, 118 (1998).
6
Neither could an officer search the passenger compartment of
the vehicle unless he had reasonable suspicion that it contained
weapons.10 Opening a vehicle’s door or piercing the interior
airspace constitutes a search.11 Reasonable suspicion must exist
prior to a search.12
Reasonable suspicion exists when, under the totality of the
circumstances, there are particular and articulable facts that,
when taken together with inferences rationally drawn from them,
warrant an intrusion.13 Reasonable suspicion requires more than
a mere hunch.14
C. Merits
Meredith contends that Officer Micheu lacked the requisite
reasonable suspicion prior to opening the vehicle’s passenger-
side door and frisking him. Specifically, Meredith argues that
the factors cited by the district court were insufficient to
constitute reasonable suspicion. Thus, Meredith asserts, the
fruits of the illegal search —— the revolver, the ammunition, and
10
Michigan v. Long, 463 U.S. 1032, 1049 (1983).
11
Hunt, 253 F.3d at 231; United States v. Ryles, 988 F.2d 13, 15
(5th Cir. 1993).
12
Florida v. J.L., 529 U.S. 266, 271 (2000).
13
United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994)
(en banc).
14
Id.
7
his statement —— should have been suppressed. The flaw in
Meredith’s reasoning is his conflating two sequential steps: (1)
opening the door and making a visual inspection of Meredith’s
person; and (2) patting down Meredith after spotting the
suspicious bulge in his pants.
We offer no opinion on whether these facts and circumstances
were sufficient for Officer Micheu to form the reasonable
suspicion necessary before he opened the vehicle’s passenger-side
door and pierced the vehicle’s interior airspace. Instead, we
take this opportunity to recognize the natural extension of the
Supreme Court’s holdings in Mimms and Wilson, viz., that the
officer needed no suspicion to open the door and perform a brief
visual check of the disabled occupant any more than he needed
suspicion to order the occupants to step out of the car in the
first place.
In Mimms, the Court held that once a vehicle has been
lawfully detained for a traffic violation, safety concerns permit
law enforcement officers to order the driver out of the
vehicle.15 In Wilson, the Court extended its holding in Mimms to
permit law enforcement officers to order any passengers in the
vehicle to exit.16
15
434 U.S. at 111.
16
519 U.S. at 414-15.
8
Thus, pursuant to Mimms and Wilson, when an officer stops a
vehicle for a valid traffic purpose, he may —— without any
suspicion —— order the driver and any passengers to exit the
vehicle.17 Then, after the occupants obey, the officer may pat
down any, who by virtue of articulable facts produced by the
officer’s appropriate visual inspection, he reasonably suspects
constitute a danger to officer safety.18
Here, having made a valid traffic stop, the NOPD officers
were permitted to order both the driver and Meredith out of the
vehicle. Had Meredith stepped out of the vehicle and had Officer
Micheu observed the handgun-like bulge in Meredith’s trousers,
the officer would have been acting within the law by frisking
Meredith. But, as Meredith did not obey, claiming paraplegia and
thus the physical inability to get out on his own, Officer Micheu
had to act quickly in some alternative manner to ensure safety.
He chose to open the passenger-side door and look in.
We conclude that the most reasonable way to serve the
officer-safety purpose of Mimms and Wilson under circumstances
like these is to extend the Court’s reasoning to include a
minimally necessary visual inspection of a non-exiting occupant
while he is still seated in the car. This solution has the
17
Mimms, 434 U.S. at 11; Wilson, 519 U.S. at 414-15.
18
Mimms, 434 U.S. at 111-12.
9
additional benefit of ensuring equal treatment of handicapped and
non-handicapped occupants alike. Without thus extending Mimms
and Wilson, a handicapped occupant (or one claiming to be) would
receive greater immunity from search than would a non-handicapped
one and would also pose a greater danger to the officers.
Our extension of the rulings of Mimms and Wilson will
further their goals. The primary motivation behind these two
cases is the enhancement of officer safety. The Court was
patently concerned with the heightened risk attendant on
approaching occupants in a vehicle.19 Without such an extension,
officers would have to conduct a traffic stop in which an
occupant would remain seated inside the vehicle and thus largely
unobservable —— the very danger sought to be remedied by Mimms
and Wilson. Although an officer will still be at a heightened
risk when approaching an occupant seated in a motor vehicle, our
holding today will allow the officer to maintain unquestioned
command of the situation20 and to conduct the same visual
inspection that he could have had the occupant exited the
vehicle, both of which benefit officer safety.
In addition, this extension is the only practical way for an
officer to confirm an occupant’s claimed handicap or expose his
19
Wilson, 519 U.S. at 413; Mimms, 434 U.S. at 110.
20
Michigan v. Summers, 452 U.S. 692, 702-03 (1981).
10
pretext. Without a full visual inspection of the individual, an
officer would simply have to accept the occupant’s word as truth.
This would obviously allow an untruthful occupant to self-
immunize himself from search and thereby provide an opportunity
either to ambush an unsuspecting, “sitting duck” officer or to
destroy or continue to conceal contraband hidden on his person.
Equally important for Fourth Amendment purposes, allowing an
officer to open the car door and view a handicapped occupant is
less intrusive than other options, such as (1) ordering the
handicapped occupant to crawl out of the car or exit as best he
can; (2) detaining all occupants until a warrant could be
obtained; or (3) detaining all occupants until a wheelchair or
other device to enable the disabled occupant’s exit could be
obtained.21 Furthermore, opening the door and eyeing the
occupant is not significantly more intrusive than peering through
a window and observing items in plain view. Taking all this into
consideration, we are satisfied that extending Mimms and Wilson
to allow officers to open a lawfully stopped vehicle’s door and
make an appropriate visual inspection of an occupant who claims
21
This third option then gives rise to more uncertainty; namely,
how will the occupant exit the vehicle —— will the officers be
allowed physically to help or lift the occupant out of the vehicle,
absent his consent, or will they have to enlist the aid of a person
to whom the occupant consents, despite simultaneously increasing
their own exposure to danger and unduly prolonging the stop?
11
to be physically unable to get out on command is not unreasonable
under the Fourth Amendment.
III. CONCLUSION
The Fourth Amendment permits law enforcement officers who
have lawfully detained a motor vehicle to order the driver and
any passengers to step out, and neither probable cause nor
reasonable suspicion is required. The Supreme Court has blessed
this practice as not unreasonable under the Fourth Amendment,
because concerns for officer safety outweigh the minimal
intrusion on the privacy of drivers and passengers. The same
safety concerns, as well as the lack of any feasible, less
intrusive alternative, support permitting a law enforcement
officer, who orders an occupant to exit a vehicle and is met with
the occupant’s claim of being physically unable to do so, to open
that occupant’s door and conduct a minimally necessary visual
inspection of just his person. If this in turn should produce
articulable facts that lead the officer to form a reasonable
suspicion that the occupant is armed and dangerous, the officer
may then conduct a pat down to the same extent that he could have
following an occupant’s exit from the vehicle on his own.
Accordingly, we affirm the district court’s order denying
suppression of the contested evidence and affirm Meredith’s
conviction and sentence.
12
AFFIRMED.
13