United States v. Wallen

United States Court of Appeals Fifth Circuit F I L E D REVISED OCTOBER 22, 2004 October 11, 2004 In the Charles R. Fulbruge III United States Court of Appeals Clerk

for the Fifth Circuit _______________

m 03-10827 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

RICHARD KENNETH WALLEN,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Northern District of Texas m 03-CR-152-ALL-A _________________________

Before SMITH, WIENER, and PICKERING, appeal from the suppression order. Finding Circuit Judges. error, we reverse and remand.

JERRY E. SMITH, Circuit Judge: I. Wallen’s vehicle was stopped for speeding Richard Wallen was charged with posses- by Officer Bryan Miers. As Miers approached sion of two firearms that were not registered Wallen’s vehicle, he observed what appeared to him in the national registry, in violation of to be two rifles on the passenger side of the 26 U.S.C. § 5861(d). Alleging violation of his truck. When Miers requested Wallen’s license Fourth Amendment rights, he successfully and proof of insurance, Wallen responded that moved to suppress evidence seized from his he thought they were in his wallet that was truck. The government takes an interlocutory somewhere on the passenger side of his truck.

Wallen, who was alone, exited the truck and en him and discovered that authorities in Dal- walked around the front of the truck to the las County had a warrant out for Wallen’s ar- passenger side, which he opened. As Wallen rest for a traffic violation. Miers exited the stepped out of the vehicle, Miers noted that he car, put Wallen in handcuffs, and placed him was barefoot. in the backseat of the patrol car. Miers told Wallen he was placing him in “temporary cus- After reaching the passenger side, Wallen tody” until the warrant could be confirmed started searching through the clutter of items, because of “the amount of firepower that you with Miers standing right behind him. As the have [unintelligible] in this vehicle.” search began, Miers noticed a handgun pro- truding from underneath a bag and interceded, Miers began to search the interior of Wal- “Okay, just, that’s okay, just step away from, len’s truck, uncovering four rifles, three hand- man you’re making me nervous with all those guns (two of which were loaded), and a shot- weapons in there. Just go ahead and shut the gun. He observed that the barrel of one of the door and step to the rear of the truck please.” rifles had been threaded at the end to allow an attachment to be screwed on. While search- Wallen complied, whereupon Miers asked ing, Miers received a communication, inform- Wallen whether he had a license to carry a ing him that the aforementioned warrant for concealed weapon. Wallen stated that he did Wallen could not be executed outside Dallas not have a license but that he was not carrying County. any concealed weapons. Miers then asserted that Wallen was carrying handguns, to which Miers returned to the patrol car and asked Wallen replied that he was carrying guns “from Wallen what kinds of weapons he had, to a place of business which is . . . handgun ori- which Wallen responded that he had three ented,” which, he contended, the law allowed. handguns and four rifles (not mentioning the Miers then told Wallen that the fact that he shotgun). Wallen explained that he operated had a gun business was only a defense to a shooting range and was presently moving the transporting a concealed handgun. weapons to his residence because of flooding. Miers then informed Wallen that the warrant Because Wallen had thus far failed to pro- for his arrest could not be confirmed, but he duce identification, Miers asked for his name, would nevertheless remain in custody because date of birth, and address. He left Wallen at of possession of handguns without a permit the rear of the truck, asking him to “hang and because of the fact that he did not know tight.” While radioing the information from who Wallen was or what he was intending to his patrol car, he observed Wallen moving do with the weapons. toward the cab of his truck. Miers exited the patrol car and instructed Wallen to return to Miers called another officer and his supervi- the rear of the truck. Wallen hesitated in com- sor to the scene. On arrival, they confirmed pliance, at first only moving partially to the that the guns were not stolen, and measured rear of the truck. After being given the in- the barrel length of the gun that had the struction for a second time, Wallen complied. threading on the end of the barrel. Miers told his supervisor that given the amount of fire- After returning to his patrol car, Miers ver- power Wallen possessed, his lack of identifica- ified the personal information Wallen had giv- tion, and the threaded rifle barrel, Miers was

concerned that Wallen might be a sniper. passenger compartment of a vehicle if he has a Wallen then insisted that he was merely trans- reasonable suspicion that the person poses a porting the guns from his firing range and sug- danger and may gain immediate control of gested that the officers contact the Duncanville weapons. Police Department to vouch for his ownership of a shooting range. The court denied the motion, holding that Long did not apply because Wallen could not After determining that the length of the have gained control of the weapons after he threaded barrel was fifteen and one-half inches, was already handcuffed and in the patrol car, the officers called an agent at the Bureau of and that it was not reasonable to consider him Alcohol, Tobacco, and Firearms, who in- dangerous, because he was cooperative with formed them that the possession of a barrel Miers. Citing Miers’s inconsistent reasons for shorter than sixteen inches was a violation of placing and keeping Wallen in custody, the federal law unless the weapon was registered. court concluded that the search was not a valid Wallen was placed under arrest, approximately protective sweep for weapons, but rather a one hour and nineteen minutes after the initial “rummaging through the vehicle in an effort to stop, for unlawfully carrying concealed weap- find illegal firearms that could provide incrimi- ons and the firearms violation. The police nating evidence against Wallen.” The govern- subsequently discovered a silencer in Wallen’s ment appeals the denial of the motion for truck and established the fact that one of the reconsideration pursuant to 18 U.S.C. § 3731 weapons was fully automatic. The entire and rule 4(b)(1)(B)(i), FED. R. APP. P. traffic stop was recorded by a camera in Miers’s vehicle. III. A. II. We uphold a district court’s findings of The government charged Wallen with un- facts on a motion to suppress unless they are lawful possession of a machine gun and a si- clearly erroneous. United States v. Shabazz, lencer in violation of § 5861(d). Wallen 993 F.2d 431, 434 (5th Cir. 1993). Conclu- moved to suppress the guns, claiming an un- sions of law are reviewed de novo. United reasonable search and seizure under the Fourth States v. Gonzales, 190 F.3d 668, 671 (5th Amendment. During the suppression hearing, Cir. 1999). Findings that are in plain contra- the parties presented the court with Miers’s diction of the videotape evidence constitute testimony and with the videotape of the stop. clear error.1 Holding that the guns seized from Wallen’s vehicle were obtained through an illegal search for which no exception applied, the district court suppressed them. 1 The government moved for reconsideration See, e.g., United States v. Jones, 234 F.3d in which it reiterated prior arguments regard- 234, 237 n.1, 241-43 (5th Cir. 2000) (rejecting witness testimony regarding whether an answer ing the validity of the search. It contended, aroused an officer’s suspicion, and correcting inter alia, that the search was permissible un- findings regarding the time at which a transaction der Michigan v. Long, 463 U.S. 1032, 1049 occurred, because testimony and findings conflicted (1983), which allows an officer to search the with videotape evidence).

B. measures to ensure that there were no other Under the Fourth Amendment, warrantless weapons within the person’s immediate grasp searches are presumptively unreasonable, and before permitting him to reenter his automo- the government bears the burden of establish- bile. Id. at 1052. ing circumstances to justify them. United Stat- es v. Lage, 183 F.3d 374, 380 (5th Cir. 1999); Under Long, this court has found protective United States v. Berick, 710 F.2d 1035, 1037 searches of automobiles valid under the Fourth (5th Cir. 1983). The government argues that Amendment where the police officer had an the search was valid under Long. objective reason to fear for his safety or the safety of others.2 Where we have rejected a In Long, two police officers stopped to in- protective search, the officers had almost vestigate a car that had swerved into a ditch. nothing on which to base a concern for safety; See Long, 463 U.S. at 1035. The driver ap- the police did not observe unusual weapons, peared intoxicated, and when the officers fol- nor did the individuals act in a particularly lowed him to his vehicle, they noticed a hunt- suspicious manner.3 ing knife on the floorboard, so they frisked him and searched the car for weapons. See id. at Miers encountered facts that would objec- 1036. During the search, they shone a light tively cause him reasonably to suspect that into the car, observed something protruding there were other weapons in the vehicle and to from under the armrest, and discovered a worry about his safety. At the time of the pro- pouch containing marihuana. See id. at 1036, tective search, Miers knew Wallen possessed 1050. 2 The Supreme Court determined that protec- See, e.g., United States v. Baker, 47 F.3d 694 tive pat-down/frisk searches authorized by (5th Cir. 1995) (upholding protective automobile Terry v. Ohio, 392 U.S. 1, 22 (1968), extend search based on existence of hunting knife, ammu- to passenger compartments of automobiles, nition, and occupant’s general statement that she but limited to those areas in which a weapon “did not know” the location of a pistol); United States v. Coleman, 969 F.2d 126, 131 (5th Cir. may be placed or hidden, when the police 1992) (upholding protective automobile search af- officer possesses “an articulable and objec- ter an individual stopped for traffic violation ad- tively reasonable belief that the suspect is po- mitted to possessing gun in pouch where he kept tentially dangerous.” See Long, 463 U.S. at license and registration); United States v. Maestas, 1051. “‘[The] issue is whether a reasonably 941 F.2d 273, 277 (5th Cir. 1991) (upholding prudent man in the circumstances would be search of a car based on accusatory and threaten- warranted in the belief that his safety or that of ing conversations between two parties in car). others was in danger.’” Id. at 1050 (quoting 3 Terry, 293 U.S. at 27). The Court emphasized See, e.g., Estep v. Dallas County, 310 F.3d the need to protect officers’ safety, because 353, 358 (holding that camouflage gear, National “roadside encounter[s] between police and Rifle Association sticker, key-chain mace, and an suspects are particularly hazardous, and . . . unusual tone of voice on the part of the passenger did not justify protective automobile search); see danger may arise from the possible presence of also United States v. Hunt, 253 F.3d 227 (5th Cir. weapons in the area surrounding a suspect.” 2001) (holding that the mere fact that the driver Id. at 1049. The Court determined that the met the officer outside his car with a license does officers acted reasonably in taking preventive not justify a protective search).

at least three weapons in his truck. Wallen Court identified a purpose of protective disobeyed instructions at least once, when he searches to be the concern that “if the suspect walked in the general direction of the cab after is not placed under arrest, he will be permitted Miers had instructed him to “sit tight” at the to reenter his automobile, and he will then rear of his vehicle. have access to any weapons inside.”

Wallen had admitted that he lacked any The possibility that Miers might release documentation for the weapons, and he could Wallen to his truck would provide grounds for not provide anything at the time to support his the protective search. Additionally, in United claim that he owned a target range. At the States v. Sanders, 994 F.2d 206, 208-10 (5th time that the search was initiated, he was Cir. 1993), we rejected a similar argument that aware of a Dallas County warrant issued on his a frisk was invalid because the suspect was arrest. Additionally, the stop happened at already in handcuffs with respect to a Terry night, and Wallen was suspiciously barefoot.4 stop. We recognized that suspects in hand- Miers’s actions were justified, because on cuffs can remain a danger to the police, partic- these facts, “a reasonably prudent man in the ularly when weapons are present. Id. As a circumstances would be warranted in the belief result, we held that the danger justified a pat- that his safety or that of others was in danger.” down to secure the officer’s safety. Given that Id. a protective sweep of an automobile under Long is viewed as a “Terry pat-down” of a car, Despite this binding authority, the district the Sanders rule applies here to legitimize this court concluded that Wallen was not danger- sweep, although Wallen was in handcuffs at ous, and the search was invalid, because the time.5 (1) Wallen was in handcuffs at the time of the search; (2) Miers did not intend to release The district court ’s reasoning that this Wallen back into his vehicle; (3) Wallen was search was invalid under Long, because Miers cooperative throughout the traffic stop; and did not intend to release Wallen back to his (4) Miers did not actually fear for his own car, is unavailing, because the district court safety. The district court’s grounds lack merit. contradicts itself in its findings. To refute the inevitable-discovery argument that was made First, the court was incorrect in finding that by the government during the suppression the protective search was invalid because Mi- hearing, the district court found: ers had already placed Wallen in handcuffs. This finding misunderstands the nature of the The contents of the tape leave open the protective search; the fear of a person’s gain- possibility that Officers [sic] Miers would ing immediate control of weapons does not not have arrested Wallen for his possession limit itself to the time of the stop, but extends of the handguns that were found on the seat through the entire interaction between him and the officer. In Long, 463 U.S. at 1051-52, the 5 See United States v. Ibarra-Sanchez, 199 F.3d 753, 760 n.7 (5th Cir. 1999) (noting that a Long protective sweep of a van “might also be 4 See Long, 463 U.S. at 1050 (relying in part on justified” in a case where the police had placed all the fact that it was night as a factor enhancing the occupants in handcuffs and in the backseats of danger to the police). their patrol cars).

if Officer Miers had not discovered what he able under the Fourth Amendment.6 Specifi- considered to be other illegal weapons cally with regard to the matter of a protective through his warrantless search of the vehi- sweep under Long, this court has emphasized cle. Though not apparent from the record, that there is no legal requirement that an of- there is a possibility that Officer Miers did, ficer subjectively fear for his own safety before to some degree, accept Wallen’s position engaging in such a search.7 Even if the district that he had a right to be transporting the court was correct in finding that Miers was handguns to his home from his gun range not actually fearful for his safety, the circum- east of Ferris, Texas. stances of this case would be enough objec- tively to put a reasonable officer in fear and The district court cannot have it both ways; its thus to justify the instant search under Long. finding of fact that there was a possibility that Wallen would be returned to his vehicle estab- IV. lishes the threat of danger that justifies a Long Miers may not have proceeded in his inves- search, despite the fact that at the time of the tigation of the traffic stop in the most prudent search the defendant was handcuffed. manner, but his actions did not violate the Fourth Amendment. Under Long, Miers’s Additionally, the district court’s rationale search after handcuffing Wallen was valid, in that a Long search was not permitted because that he had reasonable objective grounds to of its finding that Wallen was “cooperative” is fear for his safety. As the district court found, not compelling. The videotape demonstrates, Miers’s sweep of the vehicle uncovered the and the district court noted, that Wallen dis- rifle with the allegedly short barrel. Because obeyed Miers’s instruction to “hang tight” at the parties do not contest that the short-barrel the rear of the truck, and he delayed in com- gun provided Miers with probable cause to plying with the instruction to return when he arrest Wallen and to search and impound the subsequently left his position. remaining weapons, the silencer and the ma- chine gun, the order suppressing them was im- Even if Wallen’s conduct was the result of providently granted. an honest misunderstanding regarding Miers’s instructions, the conduct must be analyzed from the officer’s perspective. See Long, 463 U.S. at 1049. From Miers’s perspective, a 6 See Whren v. United States, 517 U.S. 806, reasonably prudent person would be warranted 813 (1996) (“Not only have we never held . . . that in detecting danger from these circumstances, an officer’s motivation invalidates objectively jus- particularly in light of the guns that were tifiable behavior under the Fourth Amendment, but already identified in plain view. we have repeatedly held and asserted to the con- trary.”) The district court’s finding that Miers did 7 not in fact fear for his safety is incorrect, be- See Baker, 47 F.3d at 694 (rejecting argument cause the validity of the protective search is that lack of actual fear on officer’s part invalidated Long automobile search, because Fifth Circuit based on objective evidence. The subjective “has never held that an officer’s objectively reason- motivations of police are irrelevant to deter- able concern for safety does not justify a protective mining whether a search or seizure is reason- search for weapons where the officer has no actual fear for his safety”).

The suppression order is REVERSED, and this matter is REMANDED for further pro- ceedings as appropriate.