United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS June 28, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-30726
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
NICHOLAS JOSEPH DARENSBOURG,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
(3:05-CR-124)
Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
The Government’s interlocutory appeal concerns the district
court’s granting Nicholas Darensbourg’s motion to suppress evidence
seized as a result of a patdown search (patdown). REVERSED and
REMANDED.
I.
In January 2005, Officers engaged in a narcotics sting
operation arrested Fitzgerald for possession of over 100 3,4
methylenedioxymethamphetamine (MDMA) pills (also known as ecstacy),
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
marijuana, and a loaded handgun. After his arrest, Fitzgerald gave
Officers permission to search for contraband in his bedroom in a
house under surveillance.
When Officers arrived at that house, they found Aycock and
Darensbourg playing video games. Aycock confirmed he was the
homeowner and Fitzgerald lived there; stated he had no knowledge of
Fitzgerald’s involvement in narcotics trafficking; and consented to
the house’s being searched.
Prior to the search, Officers advised Aycock and Darensbourg
they would be patted down for officer safety. Before they
commenced the patdown, however, Darensbourg stated he had a small
bag of marijuana in his trousers’ pocket. He was subsequently
arrested and read his Miranda rights. In searching Darensbourg, in
addition to the marijuana, Officers found $840 and keys to his
vehicle parked outside. Officers contend Darensbourg consented to
his vehicle’s being searched, a claim he disputes. In any event,
a search of the vehicle revealed various quantities of ecstacy
pills and powder.
Officers then called a Deputy, who confirmed he was related to
Darensbourg. After speaking with Darensbourg on the telephone, the
Deputy informed Officers that Darensbourg admitted he had more than
1,000 ecstasy pills in his apartment, as well as large sums of
cash. Officers obtained a search warrant for Darensbourg’s
apartment, based on the vehicle search and Darensbourg’s statements
2
to the Deputy. At Darensbourg’s apartment, they recovered
ammunition, approximately 4,000 ecstacy pills, and $9,000.
Darensbourg was indicted in June 2005 for: possession with
intent to distribute MDMA, in violation of 21 U.S.C. § 841(a)(1);
possession of marijuana, in violation of 21 U.S.C. § 844(a); and
possession of ammunition by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). He moved to suppress, claiming: he did not
give consent to his vehicle’s being searched; and the subsequent
search of his apartment was tainted by the unlawful vehicle search.
Darensbourg did not challenge the constitutionality of the patdown.
In granting the suppression motion in March 2006, the district
court stated that both parties had “given short shrift to the
critical chain of events”: namely, the patdown, which precipitated
the two subsequent searches. The court held, sua sponte, that the
patdown did not meet the requirements of Terry v. Ohio, 392 U.S. 1
(1968). In short, in granting relief, the court went outside the
claims presented in the suppression motion.
In so holding, the court noted the Government failed to
provide any articulable facts that would have justified finding
Darensbourg was armed and dangerous before conducting the patdown.
In this regard, the court found Darensbourg and Aycock were very
cooperative. And, based on holding the patdown unconstitutional,
the marijuana seized as a result of it was suppressed. Moreover,
the subsequent searches of Darensbourg’s vehicle and apartment were
3
held tainted by the initial constitutional violation concerning the
patdown, and the evidence seized in those searches was likewise
suppressed.
The Government moved for reconsideration, asking for a new
evidentiary hearing and claiming: because the constitutionality of
the patdown was not challenged by Darensbourg, they were not able
to introduce evidence at the suppression hearing to show the
reasonable justification for it. The Government also contended
that, even without another hearing, it had presented sufficient
evidence to show Officers had the following reasonable
justification to perform the patdown: they knew, as part of their
sting operation, that Fitzgerald had just left the house where
Darensbourg was located to perform a drug transaction, armed with
a concealed weapon, and this gave them reason to believe the
occupants of that house were also drug traffickers who were
possibly armed. In the alternative, the Government asserted:
Darensbourg’s voluntary statement to Officers that he had marijuana
gave them independent probable cause to arrest and search him; or
the evidence at issue could be seized under the good-faith
exception to the exclusionary rule.
In June 2006, the district court denied the motion for
reconsideration. (The district court’s authority to rule on an
issue not raised by Darensbourg is questionable. Needless to say,
Darensbourg was the master of his suppression motion. In any
4
event, before ruling on an issue it raised sua sponte, the court
should have granted the Government’s request for a hearing to
present evidence concerning the Officers’ basis for the patdown.
Perhaps the district court believed the record contained enough
evidence to rule without an additional hearing. In issuing such
sua sponte rulings, however, district courts should ensure the
parties have an opportunity to present their contentions and
evidence, so that factual and legal questions are developed fully.)
II.
For a suppression-motion ruling, findings of fact are reviewed
for clear error; conclusions of law, de novo. E.g., United States
v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000). Evidence introduced
at a suppression-motion hearing is viewed, of course, in the light
most favorable to the prevailing party. Id.
The primary issue at hand is the reasonableness of the
patdown. Under Terry, a law-enforcement officer may briefly detain
and frisk an individual, as long as the officer has a reasonable,
articulable suspicion of criminal activity. 392 U.S. at 30. “The
officer need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
that of others was in danger.” Id. at 27 (emphasis added).
Accordingly, for determining reasonable-suspicion vel non, a court
must consider the totality of the circumstances. United States v.
5
Arvizu, 534 U.S. 266, 273 (2002). “This process allows officers to
draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information
available to them that might well elude an untrained person.” Id.
(internal citations and quotation marks omitted).
In granting the suppression motion, the district court relied
on Ybarra v. Illinois, 444 U.S. 85, 91 (1979), for the proposition
that Darensbourg and Aycock’s presence in the home where a
narcotics search was to take place, without more, did not provide
individualized suspicion that Darensbourg was either involved in
drug trafficking or armed and dangerous. Ybarra held
unconstitutional the search of a bar patron, which occurred during
the execution of a search warrant authorizing searching the tavern
and a bartender for heroin possession. Id. at 88. The Court
agreed that police officers had a valid warrant to search the
premises, but that warrant “gave them no authority whatever to
invade the constitutional protections possessed individually by the
tavern’s customers”. Id. at 92.
The circumstances at hand are markedly different. We are
mindful that “a person’s mere propinquity to others independently
suspected of criminal activity does not, without more, give rise to
probable cause to search that person”. Id. at 91 (emphasis added);
see also United States v. Cole, 628 F.2d 897, 899 (5th Cir. 1980)
(mere presence at a dwelling suspected of containing narcotics, by
6
itself, is not enough to establish reasonable suspicion). In
Ybarra the bar patrons had no relationship with the bar or the
bartender — therefore, searching the individuals present at that
bar did not comport with Terry’s requirement for reasonable,
articulable suspicion.
In contrast, occupants of a house generally have a closer
relationship, and it is not unreasonable to think their
relationship might extend to involvement in illegal activities.
(Although it was later determined that Darensbourg did not reside
at the house, the Officers did not know that previous to the
patdown.) Along that line, the Officers had been conducting
surveillance of the house and had just arrested Fitzgerald, who, a
short time before, had exited the house carrying a large quantity
of drugs and a loaded handgun. Based on these factors, reasonable
officers could believe that Darensbourg and Aycock could also have
been involved in drug trafficking and were therefore possibly armed
as well. E.g., United States v. Majors, 328 F.3d 791, 795 (5th
Cir. 2003) (“[F]irearms are tools of the trade for those engaged in
illegal drug activities.” (internal citations and quotation marks
omitted)); see also United States v. Reid, 997 F.2d 1576, 1579
(D.C. Cir. 1993) (defendant’s proximity to drug apartment being
searched and the officer’s concern for safety justified Terry
frisk). The patdown was reasonable. (Accordingly, we need not
7
consider the earlier described, alternative claims raised by the
Government.)
The district court held the patdown tainted the two subsequent
searches and seizures involving Darensbourg’s vehicle and
apartment. Therefore, among other proceedings on remand, the
district court is to rule on the contested validity of those two
searches and seizures.
III.
For the foregoing reasons, the suppression ruling is REVERSED
and this matter is REMANDED for further proceedings.
REVERSED AND REMANDED
8