U.S. v. Michelletti

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 92-8274

UNITED STATES of AMERICA,

Appellee-Plaintiff,

VERSUS

JOHNNY CARL MICHELLETTI,

Appellant-Defendant.

Appeal from the United States District Court
For the Western District of Texas
(May 10, 1993)

Before REYNALDO G. GARZA, WILLIAMS and JONES, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Appellant, Johnny Carl Michelletti, appeals the denial of his

motion for suppression of evidence. Michelletti entered into a

plea agreement expressly reserving the right to challenge his

motion's denial. The appellant pled guilty to the unlawful

possession of a firearm by a convicted felon. Upon careful review,

we find that the denial of the motion was proper and we therefore

affirm.

FACTS

On November 17, 1991, El Paso Police Officer George Perry and

his partner were on routine motor patrol in a high crime area at
around 2:00 a.m. As they were driving, Perry observed a man

walking in front of Alacran's Bar. When the man saw the patrol

car, he turned and ran behind the bar. The officers decided to

investigate and drove the car around the bar from the other

direction. Officer Perry saw a group of three men standing there,

including the man the police originally spotted and who was now out

of breath. Perry left his car and quickly scanned the subjects'

hands for weapons. At this instant a man pushed open the back exit

door and had an open beer can in his left hand while keeping his

right hand in his pants pocket. The officer testified that this

man, Johnny Carl Michelletti, seemed to have a cocky attitude and

he stared right at the policeman. He then attempted to walk past

the officer. Perry stated that he stopped the subject because he

was violating the law by leaving a bar with alcohol. He was

suspicious that some other criminal activity might be taking place

because the initial subject had run from the police and joined the

group of men at such a late hour in this crime ridden part of town.

The officer was particularly wary of Michelletti, who is six foot

two and weighs 220 pounds and kept his right hand in his pocket

when joining the suspicious trio. The appellant was told to put

the beer on the patrol car and put both his hands on the vehicle.

A quick frisk uncovered a .22 caliber pistol in the right hand

pants pocket that had originally drawn the officer's attention.

The appellant had been convicted of aggravated assault in 1989.

Michelletti pled guilty to the unlawful possession of a firearm by

a convicted felon in violation of 18 U.S.C. 922(g)(1). He

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specifically reserved the right to appeal the denial of his motion

to suppress the evidence of the pistol. He was sentenced to 33

months imprisonment, three years supervised release and a $50

assessment. Michelletti timely appealed.

ANALYSIS

The appellant argues that Officer Perry had no basis to detain

or frisk him and therefore the discovered concealed pistol should

not have been admitted into evidence. We disagree. An officer may

stop and search an individual if he has reasonable suspicion that

criminal activity is afoot and the suspect might be armed. Terry

v. Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

"We are unwilling to tie the hands of police officers operating in

potentially dangerous situations by precluding them from taking

reasonable steps to ensure their safety when they have legitimately

detained an individual." United States v. Rideau, 969 F.2d 1572,

1575 (5th Cir. 1992).

Officer Perry had several reasons to be suspicious of the

appellant. The time was around 2:00 a.m., closing time for bars.

The officers were on routine patrol in a high crime area when they

observed a man turn and run away from them at Alacran's Bar. This

first subject immediately went behind the bar and joined his two

friends presumably to announce the policemen's arrival. Suspicions

were already aroused by this evasive individual joining these other

men when he was obviously apprehensive about the police presence.

When the policeman approached the group, Michelletti suddenly

pushes open the back door of the bar and approaches. He is holding

3
an open beer can in his left hand while keeping his right hand in

his front pants' pocket. The appellant weighs 220 pounds and is

six foot, two inches tall. This imposing figure could cause a lot

of harm if he did have a weapon. The officer appreciated the risk

involved if indeed there was some criminal intent on the part of

the four men. The officer also surmised, in the alternative, that

the three men and the police might be in danger if the appellant

had ill intent and was actually armed. The fact that he kept his

right hand in his pocket at all times, given the surrounding

circumstances, was reason enough to suspect Michelletti of possibly

being armed and warranted the pat down frisk for the officers' and,

possibly, the bystanders' safety. The appellant had a bit of a

cocky attitude, stared at the officer and then attempted to walk

past him. Michelletti did not have any intention of setting the

beer down or pouring it out. The officer knew that if the bar had

a mixed beverage permit, as most bars do, that it was a violation

to remove any alcoholic beverage from the premises under the Tex.

Alco. Bev. Code Ann. § 28.10.1 If in the alternative, the

establishment had an off premises license, it would be a violation

under §§ 71.012 or 101.723. The record is silent as to which

1
§ 28.10 provides in relevant part:
Consumption Restricted to Premises
. . . .
(b) A mixed beverage permittee may not permit any person to
take any alcoholic beverage purchased on the licensed
premises from the premises where sold. . . .
2
§ 71.01 Authorized Activities.
The holder of a retail dealer's off-premise license
may sell beer in lawful containers to consumers, but not
for resale and not to be opened or consumed on or near

4
license the bar carried. The officer also did not know whether the

beer was illegally sold after 2:00 a.m., in violation of § 105.05.4

The officer had a definite duty to uphold the Code under § 101.07.5

It is clear that the officer had a good faith reason to believe

that a violation had taken place and therefore had the authority to

stop the appellant aside from the suspicions generated by the

surrounding events and Michelletti's concealed hand.

Given the appellants' attitude, stare and the placement of his

right hand while he cavalierly carried a beer out of a bar in

violation of Texas Law were grounds for suspicion. When you

combine these reasons with the time at night, the high crime area,

the suspicious actions of the three men, the officer had sufficient

the premises where sold.
3
§ 101.72 states in relevant part:
Consumption of Alcoholic Beverage on Premises Licensed for
Off-Premises Consumption
(a) A person commits an offense if the person knowingly
consumes liquor or beer on the premises of a holder of a
wine and beer retailer's off-premise permit or a retail
dealer's off-premise license.
4
§ 105.05 states in relevant part:
Hours of Sale: Beer
(a) No person may sell, offer for sale, or deliver beer
at any time not permitted by this section.
. . . . .
(c) In a county having a population of 300,000 or more,
according to the last preceding federal census, a holder of
a retail dealer's on-premise late hours license may also
sell, offer for sale, and deliver beer between midnight and
2 a.m. on any day.
5
§ 101.07 Duty of Peace Officers
All peace officers in the state, including those of
cities, counties, and state, shall enforce the provisions of
this code and cooperate with and assist the commission in
detecting violations and apprehending offenders.

5
reasonable suspicion that he might be in danger and that

Michelletti was possibly armed. The police did not know if they

were in a situation involving four hostile suspects or only one

possibly armed suspect giving the officer the added responsibility

of protecting the civilians. Michelletti was properly frisked

because he kept his hand where a weapon could and actually was

concealed. The danger these officers were facing is underscored in

the testimony given that a fellow officer and friend was shot to

death in El Paso only two weeks prior.

We view the evidence with all inferences in favor of the

verdict. United States v. Martinez, 975 F.2d 159, 161 (5th Cir.

1992), cert. denied, (1993). Findings of fact can be challenged

only for clear error. United States v. Richardson, 943 F.2d 547,

549 (5th Cir. 1991). We do not find any reversible error here.

CONCLUSION

We find that Officer Perry had reasonable suspicion to stop

and frisk the appellant. The fruit of that frisk, the concealed

pistol, was therefore properly admitted into evidence. For all the

above reasons, we

AFFIRM.

JERRE S. WILLIAMS, Circuit Judge, dissenting:

The district court determined that Officer Perry's stop and

frisk of Johnny Michelletti was justified, and it refused to

6
suppress the handgun found in Michelletti's pocket. The majority

affirms the district court's decision. Because I do not find a

sufficient reasonable suspicion to justify the frisk, I

respectfully dissent.

There is no significant dispute about the facts. Because we

are reviewing the district court's legal conclusion that Perry had

sufficient reasonable suspicion to justify the stop and frisk, the

de novo standard applies. United States v. Richardson, 943 F.2d

547, 549 (5th Cir. 1991).

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968), the United States Supreme Court outlined an exception to

the rule requiring probable cause to detain and search an

individual. Under Terry, an officer may briefly detain someone if

he or she has reasonable suspicion that the person has been, or is

about to be, involved in some criminal activity. An officer then

may also frisk the detainee for weapons if the officer is

“justified in believing that the individual . . . is armed and

presently dangerous to the officer or to others.” Id. at 24, 88

S.Ct. at 1881. Thus, the suspicion that justifies a Terry stop

does not also sanction a lawful patdown search unless the officers

also reasonably suspect that the detainee is armed and dangerous.

The majority's opinion improperly treats these two requirements as

one.

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 1. the stop

It is well established that an investigatory stop is

proper only when the detaining officer has a reasonable suspicion

“that criminal activity may be afoot.” Id. at 30, 88 S.Ct. at

1884. In the instant case, however, the record is devoid of any

evidence that Officer Perry was warranted in suspecting that

Michelletti violated or attempted to violate any criminal laws.

The district court concluded that Michelletti violated section

101.72 of the Texas Alcoholic Beverage Code (TABC), which forbids

the on-site consumption of beer purchased from a supplier licensed

only for off-premises consumption.6 But even this important point

is manifestly unestablished. As the majority concedes, the record

does not reveal whether Alacran's Bar carries the mixed-beverage

permit that bars carry almost by definition. It is fanciful to

imagine the converse, that a profit-seeking “bar” would hold merely

an off-premise license and forbid on-site consumption. In short,

only the implausible circumstance that Alacran's Bar carried an

off-premise license would support an arrest of Michelletti for

violating § 101.72, inferred from his possession of the open

container.

Other than § 101.72, TABC's regulatory scheme generally

governs the purveyors of alcoholic beverages, not the buyers. See,

6
Even for a multiple offender, however, the penalties
amount only to a fine between $100 and $200. Id. § 101.72(d).

8
e.g., V.T.C.A., Alcoholic Beverage Code § 28.10(b) (prohibiting a

mixed beverage permittee from allowing a patron to take a beverage

off the premises), § 32.15 (barring the removal of alcoholic

beverages from the premises of a private club), § 71.03 (forbidding

an off-premise licensee from selling beer to be opened or consumed

on or near the premises), and § 105.05(c) (prohibiting an on-

premise purveyor from selling beer after 2:00 a.m.). The only

other code provision that authorizes the arrest of a bar patron for

possession of a beer outside a bar comes into play if the patron is

consuming the beer after hours. Id. § 105.06. Perry, however,

made no reference to the time when he stated that “it was a

violation of Texas law to exit a bar in possession of alcoholic

beverages.” Additionally, the district court found that the stop

took place at 2:00 a.m. Under § 105.06, no violation occurs until

after 2:15 a.m.

The factually similar case of Brown v. Texas, 443 U.S. 47, 99

S.Ct. 2637, 61 L.Ed.2d 357 (1979), is instructive. In Brown, a

unanimous Supreme Court held that officers were unjustified in

detaining the defendant as he was walking down an alley amid a

“high drug problem area” merely because he “looked suspicious”:

The flaw in the State's case is that none of the
circumstances preceding the officers' detention of
appellant justified a reasonable suspicion that he was
involved in criminal conduct. Officer Venegas testified
at appellant's trial that the situation in the alley
“looked suspicious,” but he was unable to point to any
facts supporting that conclusion. [footnote omitted]
. . . The fact that appellant was in a neighborhood
frequented by drug users, standing alone, is not a basis
for concluding that appellant himself was engaged in

9
 criminal conduct.

Id. at 52, 99 S.Ct. at 2641.

As in Brown, the record fails to establish that Michelletti's

detention was warranted by Perry's asserted suspicion that

Michelletti himself was engaged in criminal behavior. I am willing

to concede, however, that Perry may have possessed a good faith,

though inaccurate, belief that Michelletti's possession of the beer

outside the bar was prohibited by TABC regulations. Additionally,

TABC § 101.07 charges all Texas peace officers with “detecting

violations and apprehending offenders.” A brief stop of

Michelletti could therefore be justified as part of an officer's

investigation of whether Alacran's Bar was a mixed beverage

establishment or private club that had allowed Michelletti to take

his beer from the premises. Officer Perry, however, never claimed

such a basis.

2. the frisk

Even assuming that, in light of all the circumstances,

Perry had sufficient reasonable suspicion to conduct a valid Terry

stop, I do not agree that he was justified in conducting the

subsequent frisk. To determine the separate question of whether an

officer was justified in frisking a detainee, we judge the facts

against an objective standard: Would “a reasonably prudent man

. . . believe, based on `specific and articulable facts,' that his

safety or that of others [was] in danger”? United States v.

10
Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc) (quoting

Terry, 392 U.S. at 27, 88 S.Ct. at 1883).

The officer in Terry had watched three men for ten or twelve

minutes. Two of those men had walked a dozen times past a

particular store window, studying it and consulting with each

other. When the officer stopped the men to ask their names and

business, they mumbled inarticulately. He therefore frisked them

and discovered two revolvers. The Supreme Court held that a

reasonably prudent officer could justifiably suspect the men were

casing the store and were armed for robbery. In Rideau, two

officers patrolling a high-crime area at night saw Rideau standing

in the middle of the road. After the officers flashed their

lights, Rideau stumbled out of the road. The officers approached

Rideau, suspecting public intoxication. When they asked him his

name, Rideau appeared nervous and pulled away, prompting the frisk

and discovery of a gun. This court placed particular emphasis on

both Rideau's nervousness and backing away in holding that the

officers were justified in suspecting he was armed and dangerous.

Id. at 1575.

This court in Rideau emphasized that “the police [do not] have

a right to frisk anyone on the street at night in a high crime

neighborhood,” and they must be able to point to “specific and

articulable facts indicating that their safety is in danger to

justify a patdown.” Id. at 1575-76. Perry offered no specific and

11
articulable facts here. Perry testified at the suppression hearing

that Michelletti seemed suspicious because he had his right hand in

his pocket; he drank beer with his left hand; he was calm, but “a

little bit almost cocky”; and he made eye contact with the

officers, but then looked away. Perry further stated on cross-

examination that neither Michelletti nor the other three men

outside the bar did anything threatening. The officer admitted

that Michelletti's right hand in his pocket, his beer, and his

attitude offered “[n]othing that would suggest he was armed at that

time.”

This concession is significant. The conceded absence of

“specific and articulable facts” is critical. As the Supreme Court

first cautioned in Terry, an officer's belief that a suspect is

armed and dangerous cannot be based upon only a mere “inchoate and

unparticularized suspicion or `hunch.'” Terry, 392 U.S. at 21, 88

S.Ct. at 1883. This important warning, not followed by the

majority, was reiterated verbatim in the recent case of Maryland v.

Buie, 494 U.S. 325, 332, 110 S.Ct. 1093, 1097, 20 L.Ed.2d 889

(1990).

Michelletti's response when the officers confronted him also

provided no justification for the frisk. Before asking any

questions, Perry directed Michelletti to approach the patrol car,

put down his beer, place his hands on the car, and submit to a

patdown. Michelletti complied without comment or resistance.

12
Unlike the situation in Terry, the officers here did not observe

Michelletti acting suspiciously before accosting him. Unlike the

officers in Terry and Rideau, Perry did not question Michelletti

before conducting the frisk. Unlike the defendant in Rideau,

Michelletti did not appear nervous, mumble, or draw away when

confronted. He submitted to authority and did nothing that was

potentially threatening. Neither was Rideau subjected to the

intrusive frisk of being “put up against a wall or across a car and

subjected to a shake down” as was Michelletti. Rideau, 969 F.2d at

1575-76. And unlike the officers in United States v. Wangler (987

F.2d 228, 231 (5th Cir. 1993) (per curiam)) who reasonably

suspected the defendant was a drug dealer and had found guns near

his truck on prior occasions, Perry did not detect a bulge in

Michelletti's front pants pocket.

Courts suppress evidence seized in violation of Terry and its

progeny, even in potentially hazardous encounters such as roadside

and on-the-street confrontations. See, e.g., United States v.

Cole, 628 F.2d 897, 899 (5th Cir. 1980), cert. denied, 450 U.S.

1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981) (suppressing the

discovery of a pistol following patdown search because there was no

proof that the suspect might be armed and dangerous); United States

v. McQuagge, 787 F. Supp. 637, 653 (E.D. Tex. 1991) (suppressing

physical evidence, including firearms, where “there is no evidence

in the record . . . that the law enforcement officers who made the

arrest reasonably believed the defendants were dangerous when they

13
were stopped”); Harris v. State, 827 S.W.2d 49 (Tex. App.—Houston

[1st Dist.] 1992, review denied) (suppressing crack cocaine because

the frisking officer relied upon unparticularized hunches, not an

articulated and individualized suspicion that the suspect was

armed).

The United States Supreme Court has upheld the suppression of

contraband discovered similarly during an unjustified patdown

search in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62

L.Ed.2d 238 (1979). In Ybarra, officers had a warrant to search a

bar and its bartender for heroin. The officers also conducted a

patdown search of Ybarra, a bar patron, despite the fact that

Ybarra had made no gestures suggesting criminal conduct, no

attempts to conceal contraband, and no suspicious statements. The

Court held that the patdown of Ybarra was invalid because “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.” 444 U.S. at 91, 100 S.Ct. at 342

(citing Sibron v. State of New York, 392 U.S. 40, 62-63, 88 S.Ct.

1889, 1902, 20 L.Ed.2d 917 (1968)).

Certainly the late hour, the high-crime area, and the presence

of other individuals outside the rear door of the bar justified the

officers being on their guard. And viewed in a generous light,

Officer Perry apparently possessed a good faith belief that Texas

law had been violated, thus warranting further investigation.

14
Michelletti's behavior, however, did nothing to raise the

reasonable suspicion that he was armed and dangerous. While it is

true that the patdown revealed a weapon, this impermissible search

cannot be justified on hindsight. Accordingly, I disagree with the

majority's conclusion, and I would vacate the conviction.

15