UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 92-8274
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY CARL MICHELLETTI,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
January 25, 1994
Before POLITZ, Chief Judge, REYNALDO G. GARZA, KING, GARWOOD,
JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE,
EMILIO M. GARZA, and DeMOSS, Circuit Judges.*
EDITH H. JONES, Circuit Judge:
The court has decided again to turn its attention en banc
to the extent of a police officer's authority to conduct a Terry
frisk for officer and public safety. In United States v. Rideau,
969 F.2d 1572 (5th Cir. 1992) (en banc), we held that an officer
did not violate the Fourth Amendment when he "reached out and
touched the pants pocket" of "a person he suspected was
intoxicated, standing in the road, at night, in a high crime area."
Id. at 1573. Here, we hold that the Fourth Amendment is not
*
Senior Circuit Judge Jerre S. Williams, who wrote a dissent to the
panel opinion in this case, died before opinions were circulated in this case.
violated when an officer lightly frisked the pants pocket in which
the appellant held his right hand as he barged out the back door of
a bar, beer in the left hand, at closing time, and walked toward
the policeman and a group of individuals he was about to question.
Our decision rests squarely upon the reasonableness of the
officer's decision as gauged in Terry v. Ohio, 392 U.S. 1, 30, 88
S. Ct. 1868, 1884-85 (1968):
We merely hold today that where a police
officer observes unusual conduct which leads
him reasonably to conclude in light of his
experience that criminal activity may be afoot
and that the persons with whom he is dealing
may be armed and presently dangerous, where in
the course of investigating this behavior he
identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the
initial stages of the encounter serves to
dispel his reasonable fear for his own or
others' safety, he is entitled for the
protection of himself and others in the area
to conduct a carefully limited search of the
outer clothing of such persons in an attempt
to discover weapons which might be used to
assault him.
BACKGROUND
In the early morning hours of November 17, 1991, El Paso
police officers George Perry and Saul Medrano were on routine motor
patrol in a high crime area. Just after 2:00 a.m., Officer Perry
observed a man walking in front of Alacran's Lounge who, when he
saw the patrol car, turned and ran behind the bar. The officers
decided to investigate. As their car drove up behind the bar,
Officer Perry saw three men standing under a spotlight, one of whom
was the man he had originally observed.
2
While stepping out of the car, Perry immediately scanned
the subjects' hands for weapons and saw none. Suddenly, another
man noisily pushed open the rear exit door from the bar and began
to approach Perry and the suspects,1 holding an open beer can in
his left hand while keeping his right hand in his pants pocket.
This was Johnny Carl Michelletti. Perry testified:
I noticed two things in particular that caught
my attention. First of all, being left-handed
myself, I noticed that he had his right hand
in his front pocket. To me most people are
right-handed and that seems strange because in
his left hand he had a beer and he was
drinking the beer as he was leaving the
establishment.
Later, Perry continued:
And his whole attitude, although he was calm,
he seemed a little bit almost cocky. But he
looked at me, we made eye contact, but then he
looked away and acted as though I was not
there and tried to walk on by. And that
caught my attention as well.
To Officer Perry, the placement of Michelletti's hands and his
demeanor were highly significant. Further, the door that
Michelletti opened stood less than ten yards away from Perry,
within easy range for an attack. Michelletti was over six feet
tall and weighed 220 pounds. In Perry's experience, there is a
greater probability that violence will erupt outside a bar at
closing time.
1
The dissent suggests that we have mischaracterized the record in
asserting that Michelletti walked toward Officer Perry and the other suspects.
Officer Perry testified Michelletti "tried to walk on by." Appellant's brief
says, Michelletti "began to walk past [Perry]." It is a fair inference that
Michelletti had to approach Perry in order to walk right on by.
3
Officer Perry told Michelletti he was going to frisk him
for weapons, and he had Michelletti place the beer and his hands on
the patrol car while Perry checked Michelletti's pockets. A quick
frisk uncovered a .22 caliber pistol in the right hand pants pocket
where Michelletti's hand had been hidden only seconds earlier.
Michelletti pled guilty to the unlawful possession of a
firearm by a convicted felon. 18 U.S.C. § 922(g)(1) (1988). He
had previously been convicted of aggravated assault of a police
officer in 1989. Michelletti reserved the right to appeal the
denial of his motion to suppress evidence of the pistol. He was
sentenced to 33 months imprisonment, three years supervised release
and a $50 assessment. This appeal followed.
DISCUSSION
The pertinent law, which originates in Terry v. Ohio,
supra, is undisputed. Police officers may briefly detain
individuals on the street, even though there is no probable cause
to arrest them, if they have a reasonable suspicion that criminal
activity is afoot. The Fourth Amendment requires only some minimum
level of objective justification for the officers' actions -- but
more than a hunch -- measured in light of the totality of the
circumstances. See, e.g., United States v. Sokolow, 490 U.S. 1, 7,
109 S. Ct. 1581, 1585 (1989); United States v. Sanders, 994 F.2d
200, 203 (5th Cir. 1993); United States v. Rideau, 969 F.2d 1572,
1574 (5th Cir. 1992) (en banc). Reasonable suspicion must be
supported by particular and articulable facts, which, taken
together with rational inferences from those facts, reasonably
4
warrant an intrusion. See United States v. Galberth, 846 F.2d 983,
989 (5th Cir.), cert. denied, 488 U.S. 865 (1988) (citing Terry,
392 U.S. at 19, 88 S. Ct. at 1878-79).
Equally important for Fourth Amendment purposes, "the
policeman making a reasonable investigatory stop should not be
denied the opportunity to protect himself from attack by a hostile
suspect." Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921,
1923 (1972). Terry acknowledged the legitimacy of a policeman's
interest in "taking steps to assure himself that a person with whom
he is dealing is not armed" and dangerous, and it emphasized this
concern by citing the increasing number of murders and assaults
being perpetrated on law enforcement officers. Terry, 392 U.S. at
23, n.21, 88 S. Ct. at 1881, n.21.2 Terry concludes its balancing
of the suspect's liberty interest and the public safety interest by
countenancing "a narrowly drawn authority to permit a reasonable
search for weapons for the protection of the police officer, where
he has reason to believe that he is dealing with an armed and
dangerous individual. . . ." Id. at 24, 88 S. Ct. at 1881. An
officer need not be certain that an individual is armed; the issue
is whether a reasonably prudent man could believe, based on
"specific and articulable facts," that his safety or that of others
is in danger. Id. at 27, 88 S. Ct. at 1883. In assessing
2
Terry cites FBI statistics to show that in 1966, 57 law enforcement
officers were killed in the line of duty, bringing the total to 335 for the
seven-year period beginning with 1960. Also, in 1966, there were 23,851 assaults
on policemen, 9,113 of which caused injuries. Terry, 392 U.S. at 23, n.21, 88
S. Ct. at 1881, n. 21.
5
reasonableness, "due weight" must be given to the facts and
inferences viewed "in light of [the officer's] experience." Id.
This court reviews the reasonableness of an investigatory
stop and frisk de novo as a conclusion of law. See United States
v. Basey, 816 F.2d 980, 988 (5th Cir. 1987). However, the
appellate court must review the evidence in the light most
favorable to the government as the prevailing party. See United
States v. Simmons, 918 F.2d 476, 479 (5th Cir. 1990). Also, this
court "should uphold the district court's ruling to deny the
suppression motion 'if there is any reasonable view of the evidence
to support it.'" United States v. Register, 931 F.2d 308, 312 (5th
Cir. 1991) (quoting United States v. Montos, 421 F.2d 215, 219 n.1
(5th Cir.), cert. denied, 397 U.S. 1022, 90 S. Ct. 1262 (1970)).
There should be no question that the police officer
articulated a reasonable basis to investigate the group of patrons
standing outside the rear of Alacran's Lounge. This issue was not
really disputed in the district court. The man who had just turned
and run evasively at the mere sight of a patrol car had joined two
others. The police could not know what these actions might mean,
but they were entitled to find out. Instantaneously upon their
arrival, Michelletti noisily emerged from the bar, beer in hand,
and approached the entire group.
Two aspects of Michelletti's behavior led Officer Perry
to investigate him while Medrano dealt with the other men. First,
Officer Perry believed he should investigate Michelletti for
6
possible alcoholic beverage offenses3 arising under regulations of
the Texas Alcoholic Beverage Commission. Tex. Alco. Bev. Code
§ 101.07 (West 1978).4 Officer Perry considered it a violation for
Michelletti to be drinking a beer as he was leaving the bar. See
id. § 101.72(a) (West 1993).5 He knew that a bar patron violates
the law by consuming liquor served after lawful closing hours. See
id. § 105.06 (West 1978).6 Other TABC violations might also have
come into play, even though the state regulatory scheme generally
governs the purveyors of alcoholic beverages rather than the
buyers. See, e.g., id. at § 28.10(b) (West 1978) (prohibiting a
mixed beverage permittee from allowing a patron to take a beverage
off the premises); § 32.15 (West 1993) (barring the removal of
alcoholic beverages from the premises of a private club); § 71.03
3
The Texas Court of Appeals, reviewing Michelletti's conviction for
parole violation, did not question Officer Medrano's testimony that Michelletti
was in violation of the Texas Alcoholic Beverage Code, although it appears this
was a civil rather than criminal violation. Michelletti v. State of Texas, Case
No. 08-92-0075-CR, Eighth Court of Appeals, El Paso, Texas (unpublished). The
state court did, however, refuse to affirm Michelletti's conviction because it
did not believe the police officers articulated sufficient facts to justify the
Terry frisk. We do not have the testimony adduced in state court and cannot say
how that record differs from the one before us.
4
§ 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
§ 101.72. 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.
6
No violation actually occurs until after 2:15 a.m.
7
(forbidding an off-premise licensee from selling beer to be opened
or consumed on or near the premises); § 105.05(c) (West 1978)
(prohibiting an on-premise purveyor from selling beer after 2:00
a.m.).7 Ramon Valles, a friend of Michelletti and manager of
Alacran's Lounge, testified as a witness for the defense:
A. Nobody can walk with beers outside, we
cannot sell beer [after 2:00 a.m.]. What
else would you like to know on this?
Q. He couldn't, if he had bought a beer in
there --
A. He couldn't walk with it outside, no.
Q. He could not enter?
A. No sir.
Valles went on to say that the lounge could be fined or could lose
its license for such violations, but this does not detract from his
understanding that Michelletti could not violate TABC regulations.
Second, Perry's suspicions were aroused not only by the
open container of alcohol, but by Michelletti's purposeful strides
toward the group that Perry had just encountered behind the lounge.
On this basis alone, Perry's suspicion was no less reasonable than
that which the Supreme Court approved in Terry. In Terry, the
police officer had observed two men simply walking back and forth
in front of a store in broad daylight for ten or twenty minutes.
Although the men had actually turned and walked away from the store
7
Even Judge Williams, dissenting from the panel opinion, conceded that
Officer Perry may have possessed a good faith, though Judge Williams believed
inaccurate, belief that Michelletti had violated TABC regulations, and a "brief
stop of Michelletti could therefore be justified. . . ." United States v.
Michelletti, 991 F.2d 183, 187 (5th Cir. 1993) (Williams, J., dissenting).
8
when the officer detained them, the Supreme Court approved the
detention and frisk, relying heavily on the police officer's
seasoned judgment of what the occasion demanded. Terry, 392 U.S.
at 22-23, 88 S. Ct. at 1880-81.
Applying the Terry standard to Officer Perry, an
experienced patrolman, one must conclude that the possibility that
alcoholic and deliberate approach, in the context of the suspicious
circumstances under which the police encountered the group behind
Alacran's Lounge, constituted a reasonable basis to investigate
Michelletti further.
The next question is whether Officer Perry's decision to
frisk Michelletti by placing him against the patrol car with his
hands resting on it was justified by specific and articulable
facts. We conclude, as we did in Rideau, that "[a] reasonably
prudent man in [Officer Perry's] situation could have believed that
his safety and that of [others] was in danger." Rideau, 969 F.2d
at 1574. Michelletti, a large and imposing man, was heading
straight toward him with a "cocky," perhaps defiant attitude and
his right hand concealed precisely where a weapon could be located.
That Officer Perry took special note of the location of
Michelletti's right hand is a fact whose importance cannot be
overstated. The policeman had scanned all of the subjects', hands
as he alighted from his car when it pulled up behind Alacran's
Lounge. As a left-hander himself, Officer Perry said, he is
accustomed to notice how most people, i.e., right-handers, place
their dominant hands. It is also significant that Michelletti had
9
a beer in one hand and the other hand in his pocket when he opened
the door; in that situation, the hand would ordinarily come out of
the pocket. That it did not was suspicious. Officer Perry's
suspicion was aroused reasonably by the potentially dangerous
location of Michelletti's right hand.
At the suppression hearing, Officer Perry testified,
under clever cross-examination, that, before the patdown, he had no
specific reason to believe Michelletti was armed. This statement
somewhat detracts from our position but does not prove that Officer
Perry had no reason to be concerned about Michelletti. In United
States v. Tharpe, 536 F.2d 1098 (5th Cir. 1976), (en banc), we
upheld a patdown even though "the officer . . . did not explicitly
testify that he feared he was in danger because Tharpe might be
armed" (id. at 1099), and observed:
"If the officer had an objective factual basis
for then thinking there was a real risk to his
own safety, his later verbalization of his
thoughts or feelings can hardly be dispositive
of the on-the-scene reasonableness of
conducting a protective search for weapons.
. . .
His subjective feelings may have been
equivocally expressed, but his testimony
clearly shows that he felt a risk of danger,
and had a subjective awareness of facts
justifying such an apprehension." Id. at
1100.
We rely on such facts here, as did the district court.
Other circumstances surrounding the encounter signaled a
need for caution. First, it was closing time at a bar, a late hour
when the presumably well-lubricated habitués would begin heading
10
for home -- or for trouble. The officers were well aware of a
higher likelihood of angry confrontations at closing time. Second,
the officers did not know whether they were confronting one
suspect, two suspects, or all four of the men outside the bar as
suspects in criminal activity. The size of the group added to the
calculation of danger for the police and for any of the group's
innocent members. Thus, even if the likelihood of Michelletti's
being armed was somewhat less tangible, the amount of damage he
could inflict if armed was much larger gauged by the number of
onlookers. Third, the police could not dispel the possibility that
Michelletti himself was either inebriated or less in control of his
faculties because he had been drinking so late at night.
Given both a reasonable basis to perceive that illegal
activity might be underway, and that there was a possibility of
danger as he conducted an investigation, Officer Perry faced only
one more decision: the extent to which he would physically intrude
on Michelletti. He did not pull his gun. He did not handcuff
Michelletti. He did not perform a full body frisk. He merely
asked Michelletti to place his hands on the patrol car, and he
scanned Michelletti's pants pockets lightly, a move that quickly
revealed the pistol. Michelletti was not subjected to a
"shakedown." Rideau, 969 F.2d at 1576. Instead, the physical
intrusion was similar to that in Rideau:
Reaching out to touch Rideau's pocket was a
limited and tailored response to Ellison's
fears for his safety, and served to validate
his concerns. Its very spontaneity equally
validates the objective reasonableness of the
practical balance of safety and liberty. This
11
was not the intrusive exploration of a
detainee's body that the Court envisioned in
Terry. (footnote omitted).
Id. at 1575.
In a case with striking parallels to this one, a panel of
this court recently approved a particularly intrusive detention
under Terry. United States v. Sanders, 994 F.2d 200 (5th Cir.
1993). Defendant Sanders had been identified by a convenience
store owner as carrying a gun while he was in the store. See id.
at 201. Whether the store owner had actually seen the weapon or
merely suspected its presence is not clear. The officer on mid-day
patrol responded to a radio dispatch describing this event and
arrived in front of the store, tentatively identifying Sanders from
his clothing as he stood among a group of people outside the store.
See id. at 202. The policeman noted that Sanders' jacket could
conceal a firearm, and the brown bag Sanders carried could suggest
the presence of an alcoholic beverage or another weapon. See id.
at 207. Sanders turned and started to walk away as the squad car
approached. Such an action, the opinion states, "can be used by a
criminal to prepare for violent confrontation. . . ." Id. The
officer was also conscious of the safety of other people standing
nearby, including children. See id.
Sanders' description of the considerations that faced the
police officer there apply readily to this case:
When Officer Hambrick arrived on the scene at
Cruz's Grocery, he had only a matter of
seconds to assess the situation, formulate a
plan of action, and implement it. In so
doing, he had to balance several competing
priorities: to investigate the alleged crime
12
and make any appropriate arrests; to prevent
the commission of any additional crime; not to
infringe on the rights of [the defendant] or
any other persons who might be affected by the
officer's actions or inactions; to ensure the
safety of others of the general population
present or nearby; and to go home in one piece
at the end of his shift.
Id.
The panel concluded in Sanders that it was not
unreasonable for Officer Hambrick immediately to draw his gun upon
confronting Sanders, and, when Sanders ignored his command to lie
down, to have him handcuffed before searching for weapons. Indeed,
Sanders impressively amasses an array of caselaw permitting police
officers to take stern and swift measures when necessary to
"discover the true facts and neutralize the threat of harm if it
materialized." Terry v. Ohio, 392 U.S. at 30, 88 S. Ct. at 1884.
Sanders also points out:
The fact that the protection of the public
might, in the abstract, have been accomplished
by "less intrusive" means does not, by itself
render the search unreasonable. The question
is not simply whether some other alternative
was available, but whether the police acted
unreasonably in failing to recognize it or
pursue it.
Sanders, 994 F.2d at 204, (quoting United States v. Sharpe, 470
U.S. 675, 687, 105 S. Ct. 1568, 1576 (1985) (internal quotations
and citations omitted)).
Each case involving the reasonableness of a Terry stop
and frisk turns on its own facts. But it would be a bold fact-
finder indeed who could review the facts available to Officer
Hambrick in Sanders and the facts confronting Officer Perry in
13
Michelletti and conclude that Hambrick's weapon-drawn stop-and-
handcuff actions were objectively reasonable while Perry's patdown
was not. A similar comparison between this case and Rideau not
only presents no reason to differentiate the reasonableness of the
police officers' actions in the two cases, but emphasizes Officer
Perry's even greater obligation to defuse the risk to the physical
safety of the entire group of men while he and his partner
investigated. As the Supreme Court put it:
We cannot say his decision at that point to
seize [the defendant] and pat his clothing for
weapons was the product of a volatile or
inventive imagination, or was undertaken
simply as an act of harassment; the record
evidences the tempered act of a policeman who
in the course of an investigation had to make
a quick decision as to how to protect himself
and others from possible danger, and took
limited steps to do so.
392 U.S. at 28, 88 S. Ct. at 1883.
Officer Perry expressed concern that he was patrolling a
high crime area of town and that a friend and fellow officer had
been mortally shot only two weeks earlier.8 His concern was
neither irrational nor irrelevant. The location in which
suspicious behavior occurs, like the time of day, is among the
facts that generate reasonable inferences as to the necessary
police response to the behavior.9 A policeman's reaction to his or
her geographic location is just as natural as the fact that we all
secure our houses at night or check the locks on the car when
8
Our opinion rests not on these facts alone, but on the totality of
the circumstances that confronted the policeman and influenced his judgment.
9
See Rideau, 969 F.2d at 1575.
14
traversing certain parts of town. Further, Officer Perry's concern
for his safety, dramatized by the recent loss of his friend, is
hardly groundless in this day and age. The number of police
officers killed annually in the line of duty has tripled since
Terry was decided; the numbers of those assaulted and wounded have
risen by a factor of twenty.10 Surely the constitutional legitimacy
of a brief patdown such as occurred here may and should reflect the
horrendously more violent society in which we live, twenty-five
years after Terry.
The conclusion of Rideau, paraphrased, applies fully to
this case:
We do not depart from the rule that
police officers must have specific and
articulable facts indicating that their safety
is in danger to justify a patdown. Nor do we
assert that a lawful detention is a license to
frisk. We simply look to the reality that the
setting in which the police officer acts may
reasonably and significantly affect his
decisional calculus. A reasonably prudent man
in Officer [Perry's] position could believe
that he was in danger as [Michelletti
approached him, his partner, and the three
other men]. The minimally intrusive action
that he took to ensure his safety and that of
[others] was not a violation of
[Michelletti's] constitutional rights. The
Fourth Amendment does not require police to
allow a suspect to draw first.
Rideau, 969 F.2d at 1576.
AFFIRMED.
10
According to the FBI, in 1989-90, an average of 153 law enforcement
officers were killed annually in the line of duty; over 203,000 were wounded;
over 586,000 were assaulted. Washington Adds Monument Honoring Officers Who
Died, N.Y. Times, Oct. 20, 1991; 151 Law Enforcement Officers Killed in 1989,
PR Newswire, Dec. 29, 1989, available in LEXIS, Nexis Library. Compare n.1,
supra.
15
HAROLD R. DeMOSS, Circuit Judge, specially concurring:
I concur in the result reached by the majority opinion. This
is a close case involving conflict between two very real and
legitimate interests: (1) the interest of the citizen to be free
from unreasonable searches and seizures, and (2) the interests of
the police officer to be secure in his personal safety and to
prevent harm to others. When those two interests come into
conflict at 2 a.m. outside of a bar, I think common sense and
prudence say that we give preference to the safety interest of the
police officer. At that hour of the night, the overwhelming
majority of law-abiding citizens are at home in bed. Michelletti
was obviously not at home in bed, and the events of this encounter
showed he was not law-abiding, for he was carrying a pistol in
violation of the laws of the State of Texas. The dissent contends
that Officer Perry had no reasonable ground to believe that
Michelletti had a gun in his pocket, and that we therefore cannot
let the fact that Michelletti was not a law-abiding citizen color
our determination. But when Michelletti unexpectedly appeared on
the scene, Officer Perry had only a matter of seconds to assess the
significance of that turn of events, and I believe what struck
Officer Perry as most significant was the fact that Michelletti had
his right hand in his pocket. I doubt seriously that Officer Perry
gave any consideration during those few seconds of time to the
intricacies of the Texas Alcoholic Beverage Code, nor did he
remember the death of a fellow officer in the line of duty. To
that extent, some of the language in the majority opinion strikes
me simply as ex post facto rationalization. But with the intuition
born of experience, Officer Perry sensed danger, and the actions
which Officer Perry took then were those most reasonable and
appropriate to "neutralize the threat of physical harm" to himself,
his fellow officer and the other individuals who were the subjects
of their original investigation. Just as in baseball, we give a
tie to the runner, and in football, we give a simultaneous catch to
the receiver, I think in this case the close call goes in favor of
the reasonableness of Officer Perry's actions.
JERRY E. SMITH, Circuit Judge, with whom POLITZ, Chief Judge, KING,
DUHÉ and WIENER, Circuit Judges, join dissenting:
Concluding that the majority has strayed from the dictates of
the Supreme Court and from the recent pronouncements of this court
sitting en banc, I respectfully dissent. The majority, although
purporting to rely upon Terry v. Ohio, 392 U.S. 1 (1968), fails to
mention, much less to apply, the central requirement of that case:
that the Constitution requires "individualized suspicion" and
authorizes only "a limited patdown for weapons where a reasonably
prudent officer would be warranted in the belief, based on
`specific and articulable facts,' . . . and not on a mere `inchoate
and unparticularized suspicion or "hunch,"' . . . `that he is
dealing with an armed and dangerous individual.' . . . ." Maryland
v. Buie, 494 U.S. 325, 332, 334 n.2 (1990) (emphasis added)
(quoting Terry, 392 U.S. at 21, 27). In no respect does the record
wjl:\opin\92-8274.spe
hrd 17
in this case support the conclusion that Officer Perry had reason
to think defendant Michelletti was both "armed and dangerous."
I.
First, I take issue with the facts set forth by the district
court in its factual findings and by the majority in its opinion.
In its written order, the district court made only truncated
findings regarding the question of Michelletti's dangerousness:
6. Officer Perry observed the defendant exiting the
rear door of the bar with a container of beer in his left
hand, and his right hand in his pocket.
7. Officer Perry testified that his experience as
a police officer has proven confrontations between
patrons and police officers are likely to occur during
closing time at bars. Further, he feared for the safety
of himself and his partner, and determined a search of
the defendant for weapons was justified. He testified
he was being extremely careful, since a fellow officer
had recently been shot.
There is no evidence that in regard to anything Michelletti
did or said, Perry "feared for the safety of himself and his
partner." The testimony is to the contrary. Asked whether
"anybody [did] anything threatening toward you or your partner,"
Perry replied, "I wouldn't say anybody did anything threatening,
no, sir." When asked whether "[t]he fact that he had his right
hand in his pocket and according to you a beer in his left, that
was a suggestion to you that he was armed and threatening?," Perry
answered, "No, sir, that was not a suggestion that he was armed."
Perry later added, "No, he had not done any overt actions at that
time."
wjl:\opin\92-8274.spe
hrd 18
Accordingly, the district court clearly erred in stating that
Perry was in fear at the time he ordered Michelletti to undergo a
search. Without that factual predicate, Terry and Buie cannot be
satisfied, for the district court is left only with the findings
that Michelletti exited the bar with a beer in one hand and the
other hand in his pocket and that Perry was generally aware that
confrontations occur with some regularity outside bars at closing
time. Nothing about these facts provides the "individualized
suspicion," Buie, 494 U.S. at 334 n.2, that the law requires to
show that Michelletti was "armed and dangerous."
Nor does the majority report the facts with sufficient
reliability. Perry testified that Michelletti came "straight out
of the bar." There is no indication that when he exited the bar,
Michelletti "walked toward the policeman and a group of individuals
he was about to question." Majority op. at 2. This casts a shadow
on the majority's assertions that "Michelletti noisily emerged from
the bar, beer in hand, and approached the entire group," id. at 6,
that Michelletti made "purposeful strides toward the group that
Perry had just encountered behind the lounge," id. at 8, that
Michelletti made an "alcoholic and deliberate approach," id. at 9,
and that "Michelletti . . . was heading straight toward him . . .
," id.
The fact is that, assuming arguendo that Perry had reason to
think Michelletti was doing something suspicious, nothing in the
record supports the conclusion that he posed a threat to anyone.
So, the most that was called for was a momentary stop for
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questioning, not a search for weapons. That is the only possible
justification for the search in question, a Terry search for
weapons for the sole purpose of protecting those persons on the
scene.
The testimony at the suppression hearing provides no
suggestion that Michelletti was acting in concert with the three
suspects the officers were observing outside the bar. All
Michelletti did was to exit a bar at closing time. Although the
majority tries to make much of potential violations of state liquor
laws, the government now has conceded that Michelletti was guilty
of no liquor law infraction. Yet, he was subjected to a patdown
for leaving the bar with a beer in one hand and the other hand in
his pocket.
II.
The scope of the search conducted on Michelletti is
questionable. Recently in United States v. Rideau, 969 F.2d 1572
(5th Cir. 1992) (en banc), this court described the limits of
permissible police street encounters. There, the majority opined
that "[t]he scope of [the officer's] `frisk' of Rideau is a
relevant factor for us to consider. . . . Reaching out to touch
Rideau's pocket was a limited and tailored response to [the
officer's] fears for his safety . . . ." Id. at 1575.
Importantly, the court added the following: "[The defendant] was
not put up against a wall or across a car and subjected to a shake
down." Id. at 1576.
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Memories are short. A little more than a year after Rideau,
the majority today endorses the very procedure that the majority in
Rideau condemned. Perry did much more than "touch [Michelletti's]
pockets." In Perry's words, he instructed Michelletti "to set the
beer down on the car and put his hands on the car. And then I
proceeded to perform a pat down search on him for weapons."
III.
In summary, the only "specific and articulable facts" that the
record even remotely supports to link Michelletti to suspicious
activity are that he exited a bar with a beer in one hand and his
other hand in his pocket. He was in violation of no law (except of
course the weapon possession with which he was charged, a fact the
officer could not have known ex ante).
These facts are in conspicuous contrast to those in Rideau.
There, this court construed the defendant's actions as threatening:
When approached and asked his name, Rideau did not
respond but appeared nervous and, critically, backed
away. It was not unreasonable under the circumstances
for [the officer] to have feared that Rideau was moving
back to give himself time and space to draw a
weapon. . . .
. . . .
. . . [A]fter Rideau was lawfully detained, he
responded to the request of the officer by backing away
)) a move which in this specific context was reasonably
seen as threatening. [The officer] could reasonably
believe that Rideau was gaining room to use a weapon.
969 F.2d at 1575.
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The distinction is that once confronted by the officers in
their execution of a valid Terry initial detention for questioning,
the defendant in Rideau continued to engage in what the majority
called suspicious activity. Moreover, that activity was viewed as
directed toward the officers and implicating their safety, i.e.,
backing away to draw a gun on the officers. The majority held that
this further activity entitled the officers to take the Terry stop
one step further, as "[a] reasonably prudent man in [the officer's]
situation could have believed that his safety and that of his
partner was in danger." Id. at 1574.
By contrast, no reasonable officer could have believed that
Michelletti was "armed and dangerous" except on the basis of the
sort of "inchoate and unparticularized suspicion or `hunch'" that
Buie condemns. See Buie, 494 U.S. at 332 (quoting Terry, 393 U.S.
at 21). Perry's testimony directly undermines the majority's
unsubstantiated claim that Michelletti walked toward the officers
and that that action was threatening. Perry stated, "[H]e looked
at me, we made eye contact, but then he looked away and acted as
though I was not there and tried to walk on by." (Emphasis added.)
Also in sharp and significant contrast to the situation in
Rideau is the fact that Michelletti, instead of continuing in
suspicious activity once he was addressed by Perry, immediately
cooperated:
I asked him to come over here )) at the time I was
already out of my car )) to come toward me so that I
could check him for weapons. At that time I asked him to
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set the beer down on the car and put his hands on the
car. And then I proceeded to perform a pat down search
on him for weapons.
While there may have been reason for the officers to question
Michelletti briefly, under Terry, to see whether illegal activity
was afoot, the total absence of threatening or suspicious conduct
at that moment deprived the officers of justification to conduct a
full-blown patdown of Michelletti's person.11
Even if we were to assume )) contrary to any hint in the
record or the district court's findings )) that Michelletti was
walking toward the three men who had been seen moving toward the
bar's rear parking lot, his mere association with them did not
justify a search, absent some suspicious conduct on his part. In
Ybarra v. Illinois, 444 U.S. 85, 91 (1979), the Court pointedly
observed 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. . . .
[The requirement of particularized suspicion] cannot be
undercut or avoided by simply pointing to the fact that
coincidentally there exists probable cause to search or
seize another . . . where the person may happen to be.
The Fourth and Fourteenth Amendments protect the
`legitimate expectations of privacy' of persons, not
places.
Accordingly, in Ybarra the Court found no particularized suspicion
even though Ybarra was in a bar next to a person whom the police
had a warrant to search. Similarly, in Brown v. Texas, 443 U.S.
47, 52 (1979), the Court held that the police failed to demonstrate
11
As the majority rightly notes, the state court of appeals, albeit with
a record different from the one before us, concluded that the officers had not
articulated sufficient facts to justify the Terry frisk. See Majority op. at 7
n.3.
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a particularized suspicion of two persons who were walking away
from each other in an alley in a high-crime neighborhood and who
"looked suspicious."
An examination of cases in which the Court has found
individualized suspicion is instructive. Remarkably, the majority
attempts to compare the facts here favorably to those in Terry.
There, an experienced police officer on his beat observed in
detail, for ten to twelve minutes, the suspicious activities of
three men as they "cased" some retail stores, apparently in
preparation for a robbery. Terry, 392 U.S. at 5-6.12 It was
obvious to any reasonable officer that if a robbery was being
planned, one or more of the suspects would have a gun. So, it was
12
The Court described the salient facts as follows:
[The officer] saw one of the men leave the other one and walk . . .
past some stores. The man paused for a moment and looked in a store
window, then walked on a short distance, turned around and walked
back toward the corner, pausing once again to look in the same store
window. He rejoined his companion at the corner, and the two
conferred briefly. Then the second man went through the same series
of motions, strolling down [the street], looking in the same window,
walking on a short distance, turning back, peering in the store
window again, and returning to confer with the first man at the
corner. The two men repeated this ritual between five and six times
apiece )) in all, roughly a dozen trips. At one point, while the
two were standing together on the corner, a third man approached
them and engaged them briefly in conversation. This man left the
two others and walked west[, and the first two] resumed their
measured pacing, peering and conferring. After this had gone on for
10 to 12 minutes, the two men walked off together, heading west . .
. , following the path taken earlier by the third man.
By this time Officer McFadden had become thoroughly
suspicious. He testified that after observing their elaborately
casual and oft-repeated reconnaissance of the store window . . . ,
he suspected the two men of "casing a job, a stick-up," and that he
considered it his duty as a police officer to investigate further.
He added that he feared "they may have a gun."
Terry, 392 U.S. at 6.
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only logical for the officer, when conducting the initial Terry
stop, to search for weapons, which he indeed found.
The officer's observation of several minutes' duration in
Terry is in marked contrast to the instantaneous conclusion here to
search Michelletti without any real reason to think he was both
"armed and dangerous." See Adams v. Williams, 407 U.S. 143, 147-48
(holding that officer had particularized suspicion that defendant
was armed and presently dangerous where a known informant reported
moments earlier that the defendant was carrying narcotics and a
concealed weapon, and defendant was sitting alone in a car in a
high-crime area at 2:15 a.m.). It is astonishing that the majority
asserts that in the instant case, "Perry's suspicion was no less
reasonable than that which the Supreme Court approved in Terry."
Majority op. at 8.
IV.
What the majority today has done is to espouse a "group
danger" theory of search justification that is, to say the least,
troubling. That theory seems to say that if a person finds himself
amongst other persons who may pose a danger, or in a circumstance
that, because of the time of day or the part of town, may suggest
an increased possibility of criminal activity, that person may be
searched without "particularized facts" or individualized
suspicion" as to him.
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The majority begins its explication of this theory by
establishing reasonable suspicion as to the other men outside the
bar:
There should be no question that the police officer
articulated a reasonable basis to investigate the group
of patrons standing outside the rear of Alacran's lounge.
This issue was not really disputed in the district court.
The man who had just turned and run evasively at the mere
sight of a patrol car had joined two others. The police
could not know what these actions might mean, but they
were entitled to find out.
Id. at 6. Significantly, Perry testified that "at that very
instant, there was nothing threatening except for the fact that one
subject that I had first seen was coming around the corner and he
was slightly out of breath."
It is uncontroverted that that person was one of the three
others, not Michelletti. But the majority insists upon making
Michelletti answerable to the situation at hand and subject to
search because of it:
Other circumstances surrounding the encounter
signaled a need for caution. First, it was closing time
at a bar, a late hour when the presumably sell-lubricated
habitués would begin heading for home )) or for trouble.
The officers were well aware of a higher likelihood of
angry confrontations at closing time. Second, the
officers did not know whether they were confronting one
suspect, two suspects, or all four of the men outside the
bar as suspects in criminal activity. The size of the
group added to the calculation of danger for the police
and for any of the group's innocent members.
Id. at 10-11.
The flaw in this approach is that it eviscerates the
requirement of individualized suspicion that is so basic to our
Fourth Amendment jurisprudence. As the Court explained in Ybarra,
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444 U.S. at 91, one's physical proximity to suspicious persons does
not subject him to search. The dangerousness of the overall
situation does not erode one's expectation of privacy and subject
him even to a patdown )) a "frisk for weapons" that the Supreme
Court recently has reminded us "`constitutes a severe, though
brief, intrusion upon cherished personal security.'" Buie, 494
U.S. at 332 (quoting Terry, 392 U.S. at 24-25).
Equally alarming is the emphasis placed by the district court
and today's majority on the officer's awareness that a fellow
officer had been fatally shot only two weeks earlier. See Majority
op. at 14. The killing of peace officers is a tragic and
deplorable, but not wholly avoidable, consequence of that line of
work. Terry and its progeny afford officers a reasonable
opportunity to ensure their safety in the field, but only where the
suspect at hand has aroused individualized suspicion. There is no
hint in our or the Supreme Court's Fourth Amendment pronouncements
that the recent death of another police officer somewhere else in
a large city can in any way erode the constitutional rights of
those who thereafter walk the streets of that city. The majority
also emphasizes the dramatic increase in death and injury among
police officers. Again, the statistics are frightening, and one
must have sympathy for officers who daily put themselves in harm's
way. But again, these unhappy facts must not be allowed to intrude
upon the security of the person in his freedom from unreasonable
searches and seizures.
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Protection of constitutional rights is most significant at the
margins. Vigilance in protecting free speech, for example, is most
important where the speech is unpopular, though such protection may
be both more distasteful and more difficult. Likewise, recognition
of basic liberty interests is most crucial where countervailing and
sympathetic interests such as police safety are implicated.
The fact is that in an imperfect world, absolute protection
for officers is not possible, nor is freedom from reasonable
searches. That is why the law requires that the officer reasonably
believe the suspect is armed and presently dangerous. Justice
Scalia recently opined, in regard to a physical search, that "I
frankly doubt . . . whether the fiercely proud men who adopted our
Fourth Amendment would have allowed themselves to be subjected, on
mere suspicion of being armed and dangerous, to such indignity . .
. ." Minnesota v. Dickerson, 113 S. Ct. 2130, 2140 (1993) (Scalia,
J., concurring). Concluding that no reasonable officer could have
believed that Michelletti was both armed and presently dangerous,
I respectfully dissent.
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