United States v. Palmer

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 9 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 03-5115
STUART PALMER,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 02-CR-172-C)

Submitted on the briefs *
:

Fred Randolph Lynn, Tulsa, Oklahoma, for Defendant - Appellant.

David E. O’Meilia, United States Attorney, and Leena M. Alam, Assistant
United States Attorney, Tulsa, Oklahoma, for Plaintiff - Appellee.

Before HENRY , BALDOCK , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
 On September 30, 2002, Defendant Stuart Joseph Palmer was stopped by an

officer of the Tulsa Police Department for speeding in a school zone. The officer

subsequently found a loaded semiautomatic handgun when conducting a

protective search for weapons in the locked glove box of Defendant’s vehicle.

Defendant was indicted for possession of a firearm by a convicted felon, in

violation of 18 U.S.C § 922(g)(1). Contending that the search of the locked glove

box violated the Fourth Amendment, Defendant moved the district court to

suppress the gun. After the district court denied his motion, Defendant reached a

plea agreement with the government. He entered a conditional plea of guilty to

the indictment, reserving his right to appeal the denial of his motion to suppress.

We have jurisdiction under 28 U.S.C. § 1291 and affirm.

“In reviewing the denial of a motion to suppress, we accept the factual

findings of the district court unless they are clearly erroneous.” United States v.

Botero-Ospina, 71 F.3d 783, 785 (10th Cir. 1995) (en banc). The final

determination whether a warrantless search was reasonable under the Fourth

Amendment is a question of law to be reviewed de novo. Id. “We view the

evidence on appeal in the light most favorable to the government.” Id.

I. BACKGROUND

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 Officer Paul Downe observed a 1991 Buick driven by Defendant traveling

46 miles per hour in a 25 mile-per-hour school zone at approximately 9 a.m. on

September 30, 2002. Downe activated his police car’s emergency lights and siren

to get Defendant’s attention. Driving behind Defendant, Downe signaled

Defendant to pull over. Defendant looked back at the police car and pointed to

himself, as if to ask “me?” Downe nodded and motioned for Defendant to pull

over into a nearby Arby’s parking lot. Rather than turn immediately, Defendant

remained in his lane of traffic, made a left turn at the next light, and accelerated.

When Downe reactivated his siren, Defendant promptly crossed a lane of traffic

and pulled into a NAPA parking lot.

Defendant drove through the parking lot, bypassing approximately 25

empty parking spaces. He eventually stopped on the far side of the lot. From the

time Downe first signaled Defendant to pull over until the time Defendant

stopped in the parking lot, Downe observed Defendant reaching behind the seat

and then back toward the glove box, and leaning forward as if reaching for

something under the seat.

As Downe got out of his patrol car and approached Defendant’s vehicle, he

saw Defendant continue to make movements toward his feet or under the seat, and

toward the passenger side and glove box. Downe observed Defendant’s hand near

the glove box, which was open, and saw Defendant close the glove box.

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 Downe obtained Defendant’s driver’s license and returned to his patrol car

to conduct a license check and prepare a citation. As he was doing this, a black

pickup truck pulled up next to the patrol car. The driver told Downe that he had

witnessed Defendant trying to hide something after Downe had signaled him to

stop.

Downe radioed the police dispatcher to obtain backup. While waiting for

backup to arrive, Downe conducted a record check on his laptop computer. It

indicated that Defendant was an ex-convict and warned that Defendant had been

armed and dangerous. Downe continued to observe Defendant moving back and

forth in his seat and leaning toward the glove box and under his seat.

Shortly thereafter, Officer Goad arrived on the scene. Downe explained to

him what had happened and asked him to check the inside of Defendant’s vehicle.

Downe removed Defendant from the vehicle, patted him down, and sat him in the

patrol car while Goad searched the vehicle. Goad’s search revealed no weapons.

Downe asked Goad to watch Defendant while he searched the vehicle himself.

During his search Downe tried to open the glove box, which was locked. He

removed the keys from the ignition and used them to unlock the glove box, where

he found a loaded semiautomatic handgun.

II. DISCUSSION

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 “[A] traffic stop is valid under the Fourth Amendment if the stop is based

on an observed traffic violation . . . .” Botero-Ospina, 71 F.3d at 787. In

addition, when police officers have a reasonable suspicion based on specific and

articulable facts that a properly detained driver may be dangerous and “‘may gain

immediate control’” of weapons, they may conduct a weapons search of the

driver’s person and the passenger compartment of the vehicle. United States v

Leyva-Serrano, 127 F.3d 1280, 1283 (10th Cir. 1997) (quoting Michigan v. Long,

463 U.S. 1032, 1049 (1983)). Thus, the question in this case is whether Downe

had a reasonable and articulable suspicion sufficient to justify the weapons search

of the passenger compartment of the vehicle, including the glove box.

We agree with the district court that the specific facts and circumstances

here gave rise to a reasonable suspicion that Defendant was dangerous and could

gain control of a weapon. The observations of Officer Downe, supported by those

of the passing motorist, clearly indicated that Defendant was trying to delay his

encounter with the officer until he could hide something in his glove box. When

the license check revealed that Defendant was an ex-convict who had been

considered armed and dangerous, Officer Downe had more than sufficient

evidence to support a reasonable suspicion that Defendant was dangerous and was

hiding a weapon in the glove box.

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 More problematic is whether there is reason to believe that a suspect “may

gain immediate control” of a weapon in a locked glove box, particularly when the

suspect is in the patrol car, detained by a police officer, while another officer

looks in the glove box of the suspect’s car. We turn to the relevant case law for

clarification of the quoted phrase in the present context.

The Supreme Court’s opinion in Michigan v. Long explains that (1) the fact

that the detainee is “under the control” of officers does not eliminate the risk that

he will gain access to a weapon, and (2) the time period during which the detainee

“may gain immediate control” is the entire period from the initial stop to the

detainee’s departure. The Court wrote:

The Michigan Supreme Court appeared to believe that it was
not reasonable for the officers to fear that Long could injure them,
because he was effectively under their control during the
investigative stop and could not get access to any weapons that might
have been located in the automobile. This reasoning is mistaken in
several respects. During any investigative detention, the suspect is in
the control of the officers in the sense that he may be briefly detained
against his will. Just as a Terry [v. Ohio, 392 U.S. 1 (1968),] suspect
on the street may, despite being under the brief control of a police
officer, reach into his clothing and retrieve a weapon, so might a
Terry suspect in Long’s position break away from police and retrieve
a weapon from his automobile. In addition, if the suspect is not
placed under arrest, he will be permitted to reenter his automobile,
and he will then have access to any weapons inside. Or, as here, the
suspect may be permitted to reenter the vehicle before the Terry
investigation is over, and again, may have access to weapons. In any
event, we stress that a Terry investigation, such as the one that
occurred here, involves a police investigation at close range, when

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 the officer remains particularly vulnerable in part because a full
custodial arrest has not been effected, and the officer must make a
quick decision as to how to protect himself and others from possible
danger. In such circumstances, we have not required that officers
adopt alternate means to ensure their safety in order to avoid the
intrusion involved in a Terry encounter.

Long, 463 U.S. at 1051-52 (internal citations, quotation marks, ellipses, and

emphasis omitted).

If Defendant had broken away from the officers, obtaining a gun from

inside the glove box would have taken only a moment more than obtaining a gun

from anywhere else within the passenger compartment. To be sure, the tasks of

getting a key and unlocking the glove box would delay Defendant somewhat; but

a suspect who is able to break free of officers detaining him could also seize the

keys, and the suspect may have another means of entry to the glove box, such as a

key that would not be detected during a proper frisk or a weapons search of the

vehicle. Furthermore, Defendant would have access to the gun at the conclusion

of the encounter, assuming that he was only issued a citation and not arrested.

Recognizing these dangers, the federal courts of appeals to address the

matter have upheld weapons searches of locked vehicles and glove boxes. In

United States v. Holifield, 956 F.2d 665, 666-67 (7th Cir. 1992), officers who had

stopped a car for speeding removed the occupants from the car, frisked them,

examined the interior for weapons, and then removed the keys from the ignition

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and unlocked the glove box, where they found a pistol. Because the driver’s

aggressive behavior justified the officers’ fear for their safety, the Seventh Circuit

upheld the search of the locked glove box. The court relied on the above-quoted

passage from Long, observing that the passengers would eventually return to their

car and that even before then, one or more could have broken free from the

officers. Id. at 668-69. Similarly, the Eighth Circuit followed Long in upholding

a weapons search of a locked glove box. United States v. Brown, 913 F.2d 570,

571-72 (8th Cir. 1990) (key lying on car’s front seat). Cf. United States v.

Mancillas, 183 F.3d 682, 699-701 (7th Cir. 1999) (locked car; follows Holifield);

United States v. Woody, 55 F.3d 1257, 1269-70 (7th Cir. 1995) (search of locked

glove box incident to arrest; cites Holifield with approval); United States v.

Cheatwood, 575 F.2d 821, 825 (10th Cir. 1978) (seizure of firearms from front

seat of car while defendant was standing at rear of car “was proper in relation to

protection of the persons of the two police officers which necessarily involves the

possibility that [the defendant] may have attempted re-entry of the vehicle to

obtain the weapons for use against the officers”).

Also instructive is United States v. Christian, 187 F.3d 663 (D.C. Cir.

1999), although the case did not involve a locked glove box. When two officers

approached the defendant to question him as he stood by the side of a car, one

saw a dagger on the front seat. Id. at 665. He asked the defendant for the car

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keys, unlocked the car, and retrieved the weapon. Id. The defendant challenged

the search of the locked car because “the car’s interior was not within his

immediate control” once the officer had taken the keys from him. Id. at 670

(internal quotation marks omitted). The court responded that the pertinent

moment to assess the risk of the suspect’s gaining immediate control of a weapon

was just before the officers took protective measures—that is, before the officers

obtained the keys. “Otherwise, we might create a perverse incentive for an

arresting officer to prolong the period during which the arrestee is kept in an area

where he could pose a danger to the officer.” Id. (internal quotation marks

omitted); cf. United States v. Ross, 456 U.S. 798, 807 n.9 (1982) (in explaining

why warrant need not be obtained to search impounded vehicle that had been

stopped on highway with probable cause, Court wrote: “[I]f an immediate search

on the scene could be conducted, but not one at the station if the vehicle is

impounded, police often simply would search the vehicle on the street—at no

advantage to the occupants, yet possibly at certain cost to the police.”). The

officers’ actions were therefore justified under Long because “[i]t was not

unreasonable to fear [the defendant] might lunge for the door, open it with the

keys, and grab the knife.” Christian, 187 F.3d at 670. The court also noted that

the defendant might have been able to enter the car even without the keys, id. at

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670-71, and that the defendant, if not arrested, eventually would have been

permitted to reenter the car, id. at 671.

We agree with the analysis in the above cases, which also applies to this

appeal. Before the two officers first arrived at Defendant’s car and asked him to

step out, Officer Downe had learned of Defendant’s criminal record and

dangerousness and had observed Defendant’s furtive movements while being

pursued. Thus, they had sufficient justification at that point to take the car keys

and open the glove box. The delay in searching the glove box—while Defendant

was removed to Officer Downe’s patrol car and Officer Goad first searched the

interior of Defendant’s car—did not extinguish that justification. Moreover, as

noted in Long, Defendant would certainly have had access to the gun after the

citation was issued and he was released to go.

We recognize that “a protective search for weapons is limited in scope, but

the fact that it is a limited search does not mean that it may not encompass the

glove compartment. Protective searches are only limited in the sense that the

officer conducting the protective search must first have a reasonable suspicion

that the suspect is dangerous and the protective search must be directed only to

locations which may contain a weapon and to which the suspect may have

access.” Holified, 956 F.2d at 669. Based on the information before the officers,

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Officer Downe was justified in searching the locked glove box as part of the

protective search.

III. CONCLUSION

We AFFIRM the judgment below.

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