UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10117
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID PAUL LANCASTER,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Texas
(3:94-CR-219-1-G)
October 27, 1995
Before GARWOOD, WIENER and PARKER, Circuit Judges.*
GARWOOD, Circuit Judge:
Defendant-appellant David Paul Lancaster (Lancaster) appeals
the district court's denial of his motion to suppress evidence.
Lancaster pleaded guilty to a charge of possession with intent to
distribute cocaine, conditioned on his right to appeal the district
court's denial of his motion to suppress. We affirm.
*
Local Rule 47.5 provides: “The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession.”
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Facts and Procedural Background
On the basis of information obtained from confidential
sources, narcotics officers from the city of Garland, Texas, police
department initiated surveillance of Lancaster and two companions
around 5:00 p.m. on June 13, 1994. Lancaster was followed from his
place of work to several intermediate locations, and finally to the
parking lot of the Hypermart store in Garland. Lancaster parked
his truck, which he was using to pull a ski boat, in the fire lane
in front of the Hypermart. One of Lancaster's companions, Steven
Craig Medrano (Medrano), drove a BMW belonging to Lancaster and
parked it in a handicapped parking space near the fire lane.
Lancaster's BMW lacked a proper handicapped parking permit.
Lancaster's other companion, James Michael Hammes (Hammes), also
parked his van in the fire lane, just in front of Lancaster's
truck.
While continuing their surveillance of Lancaster and his
companions, the Garland narcotics officers radioed the Garland
police department for dispatch of a patrolman to investigate these
parking violations and to ascertain the identities of the persons
under surveillance. Officer David Blair (Blair) arrived at the
Hypermart parking lot and found the vehicles parked as described
above. Blair approached four individuals standing near these
illegally parked vehicles—Lancaster, Medrano, Hammes, and a female
employee of the key franchise located in the Garland Hypermart,
Carrie Ruiz (Ruiz)—and asked for identification. Hammes and
Medrano stated that they did not have driver’s licenses, and
2
Lancaster produced his. At that point, Hammes admitted to Blair
that he might have an outstanding warrant for his arrest in Dallas,
Texas. Blair confirmed this and arrested Hammes, first patting him
down and then placing him in the back of the patrol car.
Blair then began to issue a citation for the BMW. Lancaster
asked Blair to issue the citation to him, even though Lancaster had
previously told Blair that he had driven the truck, and not the
BMW. His suspicions raised by these conflicting stories, Blair had
begun to question Lancaster when Officer Andrew Lowen (Lowen)
arrived on the scene. Blair apprised Lowen of the situation, and
the two officers continued to question Lancaster and Medrano.
Lancaster then admitted that he had driven the truck and that
Medrano was the driver of the BMW.
Deciding to question the two suspects separately, Blair
continued his questioning of Medrano and Lowen escorted Lancaster
over to his patrol car, approximately fifty yards away. Medrano,
who had initially claimed that he did not have a driver’s license,
at this point produced a license for Officer Blair. Medrano
asserted that he had not previously produced this license because
he believed that it had expired. Blair found that the license had
not expired, and further ascertained that the address on the
license was not the address which Medrano had previously given him.
Blair then arrested Medrano—determining that he would be unable to
properly merely issue a citation for the illegally parked BMW based
on Medrano’s inconsistent responses—and had Medrano empty his
pockets. When Medrano failed to empty his pockets completely,
3
Blair searched Medrano’s pockets and found two small baggies
containing what appeared to be amphetamines. After calling out and
displaying these baggies to Lowen, who was questioning Lancaster
some fifty feet away, Blair put handcuffs on Medrano and placed him
in a patrol car.
Hearing Blair call to him and witnessing that Blair had found
something of consequence in Medrano’s possession, Lowen decided to
interrupt his questioning of Lancaster and assist Blair. The
present appeal turns on the events which occurred next, and we will
return to the facts surrounding Lancaster’s arrest in our
discussion of the merits of Lancaster’s claim.
Following Lancaster’s arrest, Lowen searched the BMW, finding
13.2 pounds of methamphetamine, 24 grams of cocaine, 186 grams of
marihuana, and $112,000 in U.S. currency. A search of the truck
uncovered 1.9 pounds of methamphetamine, 2.6 pounds of cocaine, 7.3
ounces of marihuana, and $59,460 in U.S. currency. Seized from the
van were 24.8 grams of heroin and two grams of methamphetamine.
Lancaster was subsequently indicted for: (1) conspiracy to possess
with intent to distribute methamphetamine and cocaine; (2) aiding
and abetting possession with intent to distribute methamphetamine;
(3) aiding and abetting possession with intent to distribute
cocaine; and (4) aiding and abetting possession and use of a
firearm.
The district court held an evidentiary hearing on Lancaster’s
motion to suppress on September 29, 1994. Based on the evidence
brought forward during this hearing, the district court found that
4
Officer Blair had reasonable suspicion for the investigatory stop
of Lancaster, and that Lowen had probable cause for subsequently
arresting Lancaster. The district court therefore denied
Lancaster’s motion to suppress on October 21, 1994.
Subsequent to the district court’s ruling on this motion to
suppress, Lancaster entered a conditional plea of guilty to the
third count of the indictment, for aiding and abetting possession
with intent to distribute cocaine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. The remaining counts of
the indictment were dismissed. On January 31, 1995, the district
court sentenced Lancaster to 150 months’ confinement, to be
followed upon his release by a 4-year period of supervision and a
$5,000 fine.
Lancaster timely brings this appeal.
Discussion
As this Court noted in United States v. Roch, 5 F.3d 894 (5th
Cir. 1993), when a defendant is subjected to a search—or arrested
—without a warrant, the government bears the burden of proving that
it had reasonable suspicion for seizing, or probable cause for
arresting, the defendant. Id. at 897. In the present case, it is
undisputed that Lancaster was detained, and subsequently arrested,
without a warrant. Lancaster contends that his rights under the
Fourth Amendment were thereby violated, and that the district court
erred in denying his motion to suppress the evidence resulting from
this unconstitutional search and seizure.
The first question presented by this appeal is whether Officer
5
Blair acted properly in initially detaining Lancaster. The
district court found that Blair had a “reasonable suspicion” which
warranted initiation of the investigatory detention, a finding
which we review de novo. Id.
In Terry v. Ohio, 88 S.Ct. 1868 (1968), the United States
Supreme Court determined that a police officer may stop and briefly
detain a person, for investigative purposes, if the officer has
“reasonable grounds” for such a detention. The Court stated that
the judicial inquiry into the propriety and reasonableness of a
search or seizure “is a dual one—whether the officer’s action was
justified at its inception, and whether it was reasonably related
in scope to the circumstances which justified the interference in
the first place.” Id. at 1879. Grappling with the first prong of
this inquiry, the district court noted our observation that, “The
prosecution must demonstrate a ‘minimal level of objective
justification for the officer’s actions, measured in light of the
totality of the circumstances.” United States v. Tellez, 11 F.3d
530, 532 (5th Cir. 1993) (quoting United States v. Wangler, 987
F.2d 228, 230 (5th Cir. 1993) (citations omitted)), cert. denied,
114 S.Ct. 1630 (1994).
In the present case, Officer Blair arrived at the Hypermart
parking lot to find three vehicles illegally parked. Observing a
group of four persons standing close to these vehicles, Blair
approached this group and began questioning the
individuals—including Lancaster—regarding the illegally parked
vehicles. In United States v. Shabazz, 993 F.2d 431 (5th Cir.
6
1993), we concluded that, in connection with the Terry stop of a
vehicle for a moving violation, an officer may request a driver’s
license, proof of insurance, proof of registration, run a computer
check thereon and issue a citation. Id. at 437. We hold that the
Shabazz rationale is applicable here. Therefore, having determined
that he was conversing with the drivers of the illegally parked
vehicles, Officer Blair was certainly justified in detaining these
persons in order to ascertain their identities and issue the
appropriate citations. From the initial questioning of Lancaster
and his companions, through the arrest of Hammed and the decision
to separate Medrano and Lancaster for individual examination,
Officer Blair—later with the assistance of Officer Lowen—had a
consistent, two-fold purpose of identifying the persons involved in
this episode of illegal parking, and clarifying the roles of each
person involved. The lies and inconsistent statements made by the
suspects served to complicate and delay the police officers’
justified solicitations of necessary information, all the while
reenforcing the officers’ initial “reasonable suspicions.”
As Officer Blair’s initiation of the investigatory detention
at issue was clearly justified, we turn to whether the district
court erred in finding that Officer Lowen did not violate his
Fourth Amendment rights when Lowen conducted a pat-down search of
Lancaster’s person.
The district court found the following facts.1 When Officer
1
We review a district court’s finding of facts on a
motion to suppress under the clearly erroneous standard. United
States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993); United States
7
Lowen arrived at the scene, Officer Blair had begun questioning
Lancaster regarding his inconsistent statements as to who had
driven the BMW. Blair apprised Lowen of the situation and the
officers briefly questioned Medrano and Lancaster regarding their
identities and addresses. Lancaster returned to his earlier story,
that he had driven the truck, and that Medrano was the driver of
the BMW. Then, the two officers separated Medrano and Lancaster
for further questioning; Blair spoke individually with Medrano
while Lowen examined Lancaster. Lowen observed that Lancaster was
nervous and appeared to be under the influence of amphetamines.
Troubled by Medrano’s conflicting statements regarding his driver’s
license and his identity, Blair arrested and searched Medrano,
finding baggies which appeared to contain amphetamines. At this
point, Blair called out to Lowen and displayed a baggie containing
what Lowen suspected were controlled substances. Lowen believed
that Medrano was going to be placed under arrest, and, as dusk was
approaching, Lowen decided to pat Lancaster down—for reasons of
“pure officer safety”—so that he might assist Blair. Before
commencing this pat down, however, Lowen specifically advised
Lancaster that he was not under arrest. Lowen used neither force
nor handcuffs. It was at this point, before Lowen placed Lancaster
under arrest, that Lancaster volunteered that he was in possession
of marihuana. Lowen’s subsequent search of Lancaster confirmed
this admission.
The district court considered the assertedly contrary
v. Ponce, 8 F.3d 989, 997 (5th Cir. 1993).
8
testimony of Carrie Ruiz (Ruiz), the fourth person in the group
gathered in the Hypermart parking lot, and found that Ruiz’s
testimony did not fatally undermine the above findings. Ruiz, who
testified that she had been sitting on the hood of a squad car
while Lowen was questioning Lancaster near the back door of the
car, could not, however, see or hear what was going on. Lowen
called Ruiz to the back of the car so that she might assist him by
holding the plastic bag into which Lowen was placing Lancaster’s
belongings. Ruiz further testified that, at the time she arrived
at the back of the car, Lancaster was in the “spread eagle”
position, and that Lancaster was attempting to explain to Lowen
that he had marihuana; at this point, Ruiz thought that Lancaster
was under arrest.
The district court noted that Ruiz’s testimony was not
inconsistent with the account of Lancaster’s arrest given by Lowen.
Since Ruiz was unable to see or hear what was going on at the back
of the car before she was called back to assist Lowen, she could
not have heard Lowen tell Lancaster that he was not under arrest.
Neither could she have known whether the statement she heard
Lancaster make regarding his possession of marihuana was the first
such profession he had made, or whether he had already admitted his
possession, and was subsequently reiterating, or even attempting to
explain, this earlier profession of guilt.
We find no reason to conclude that the district court’s
findings of fact are clearly erroneous. With regard to Ruiz’s
testimony, there is no conclusive support for Lancaster’s
9
contentions that Ruiz’s testimony contradicts the statements made
by Lowen. As the district court observed, the accounts given by
Ruiz and Lowen are not necessarily inconsistent. We accept the
district court’s finding that Lancaster was not placed under arrest
until after he volunteered that he was in possession of marihuana.2
This established, we must consider whether Lowen’s decision to pat
Lancaster down constituted a violation of Lancaster’s Fourth
Amendment right against illegal searches and seizures.
In Terry v. Ohio, supra, the Supreme Court established that,
while a police officer’s initial detention of a suspect might be
constitutionally sound, “A search for weapons in the absence of
probable cause to arrest, however, must, like any other search, be
strictly circumscribed by the exigencies which justify its
initiation.” S.Ct. at 1882 (citations omitted). The Court went on
to conclude, “Thus it must be limited to that which is necessary
for the discovery of weapons which might be used to harm the
2
Lancaster claims that he was effectively placed under
arrest prior to his admission that he was in possession of
marihuana. The district court was not required to credit
Lancaster’s contention that he has been handled by the criminal
justice system so many times that he would know better than to
volunteer such information unless he thought he was under arrest.
Additionally, the district court’s finding that Lowen specifically
told Lancaster that he was not under arrest is free of clear error,
as Lancaster failed to produce any compelling evidence showing
otherwise. Moreover, as noted above, Ruiz’s testimony is not
necessarily inconsistent with Lowen’s. And, even if Lowen demanded
that Lancaster assume a “spread eagle” position for the pat down,
this Court has held that a police officer may use “some force”
without exceeding the scope of a Terry stop. United States v.
Tellez, 11 F.3d 530, 533 (5th Cir. 1993), cert. denied, 114 S.Ct.
1630 (1994); United States v. Sanders, 994 F.2d 200, 204 (5th
Cir.), cert. denied, 114 S.Ct. 408 (1993). Nor was the district
court compelled to credit Ruiz’s testimony in this respect.
10
officer or others nearby, and may realistically be characterized as
something less than a ‘full’ search, even though it remains a
serious intrusion.” Id. In an effort to shape the inquiry
necessitated by this conclusion, the Court elaborated that:
“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 . . . And in determining whether the officer acted
reasonably in such circumstances, due weight must be
given, not to his inchoate and unparticularized suspicion
or ‘hunch,’ but to the specific reasonable inferences
which he is entitled to draw from the facts in light of
his experience.” Id. at 1883 (citations omitted).
See also Sanders, 994 F.2d at 203; United States v. Michelletti, 13
F.3d 838, 840-841 (5th Cir.) (en banc), cert. denied, 115 S.Ct. 102
(1994).
In the present case, Officer Lowen had numerous facts to
consider in reaching the decision to pat Lancaster down. First, of
the two persons who had accompanied Lancaster to the Hypermart, one
had been immediately arrested pursuant to an outstanding warrant
and the other, to the best of Lowen’s knowledge, was at that moment
being arrested for then possessing a controlled substance. Second,
even though Lowen was not planning on arresting Lancaster, he did
intend to leave Lancaster in the back seat of his squad car while
he assisted Officer Blair with Medrano; Lowen testified that he did
not want to put anyone into his squad car who might have had a gun.
Third, Lowen had observed Lancaster’s nervous demeanor, and had
concluded, based on his thirteen years of experience with the
police department, that Lancaster was possibly “on amphetamine.”
Fourth, Lancaster had made inconsistent statements to police
11
officers, perhaps indicating that he had something to hide.
Finally, it was dusk, and most likely the visibility would be
further reduced by the time Lowen returned to Lancaster and the
squad car. In light of these facts, we conclude that Lowen acted
as a reasonably prudent officer when he decided to pat Lancaster
down for a weapon before putting him in the patrol car. Lowen
testified that he acted out a concern for “pure officer safety,”
and the facts adequately support his reasonable inference that,
under the circumstances, it might have been unsafe to place
Lancaster into the car without first frisking him. We hold that
Lowen’s actions fell within the parameters of a valid Terry stop,
and did not violate Lancaster’s Fourth Amendment rights.3
Once Lancaster volunteered that he had marihuana in his
possession, Lowen had probable cause to arrest Lancaster. The
Supreme Court has clarified that probable cause for arrest exists
when “there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Illinois v. Gates, 103
S.Ct. 2317, 2332 (1983). Lancaster’s arrest did not, therefore,
violate his Fourth Amendment rights.
Accordingly, the district court did not err in denying
Lancaster’s motion to suppress evidence. The judgment of the
district court is
AFFIRMED.
3
We also note that the Supreme Court has cautioned
against “second-guessing” a police officer faced with a swiftly-
developing situation such as this one. United States v. Sharpe,
105 S.Ct. 1568, 1575 (1985).
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