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Title United States v. Anthony Holmes

Argued September 10, 2004 Decided October 19, 2004

Subject Crime; Fourth Amendment

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2004 Decided October 19, 2004

No. 03-3026

UNITED STATES OF AMERICA,

APPELLEE

ANTHONY L. HOLMES,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 02cr0002401)

Richard Seligman, appointed by the court, argued the

cause and filed the briefs for appellant.

John P. Gidez, Assistant U.S. Attorney, argued the cause

for appellee. With him on the briefs were Kenneth L.

Wainstein, U.S. Attorney, John R. Fisher, Roy W. McLeese,

III, and Lisa H. Schertler, Assistant U.S. Attorneys.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

Before: SENTELLE, TATEL, and ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBERTS.

ROBERTS, Circuit Judge: Anthony Holmes appeals from the

district court's denial of his motion to suppress evidence

seized during a pat-down frisk and a subsequent search

incident to arrest. During the pat-down frisk an officer felt a

hard, square object in Holmes' jacket pocket. Holmes identi-

fied the object as a scale, which it turned out to be when the

officer removed it. When the officer proceeded with the

frisk, Holmes assaulted him. Once Holmes had been sub-

dued, the police searched him and found cocaine on his

person. They also found a semi-automatic gun and ammuni-

tion beneath the driver's seat of his car. Holmes argues that

the officers violated the Fourth Amendment by removing the

scale and that this tainted the subsequent seizure of the

cocaine, gun, and ammunition. He also argues that the

search of the car exceeded the legitimate scope of a search

incident to arrest. We find that the scale was seized pursu-

ant to a lawful protective frisk under Terry v. Ohio, 392 U.S.

1 (1968), and that the other evidence was properly seized

pursuant to a search incident to Holmes' arrest for assault.

We affirm.

At approximately 9:30 p.m. on December 21, 2001, officers

Dereck Phillip and Marvin Washington of the Metropolitan

Police Department observed a car traveling at a high rate of

speed, about 20 miles above the posted speed limit, on Good

Hope Road in southeast Washington, D.C. Officer Phillip

pulled up behind the vehicle, which slowed to a speed of 35

miles per hour, still 10 miles per hour above the speed limit.

As he followed the vehicle, Phillip observed the driver --

Anthony Holmes -- continually dipping his right shoulder, as

if he were reaching under the driver's seat. To Phillip, it

seemed as if Holmes were ``retrieving a weapon from under

his seat or TTT placing a weapon under his seat.'' Suppres-

sion Hr'g Tr. at 8. Phillip activated his emergency lights.

Holmes ``was very hesitant TTT pulling over,'' but finally did

so. Id. at 7.

Phillip and his partner exited their patrol car and ap-

proached the vehicle. They noticed that Holmes was looking

nervously over his left shoulder and moving around inside the

car. As a safety precaution, the officers approached the

passenger side of the car -- where Holmes was not expecting

them -- and again observed Holmes reaching beneath his

seat and toward his waist. Phillip knocked on the passenger

side window, and Holmes rolled the automatic window down.

As the window opened, Phillip detected a strong odor of

alcohol. He asked Holmes if he had been drinking. Holmes

replied that he had, and that he was coming from a liquor

store. The officers moved to the driver's side and asked

Holmes to exit the vehicle. Around this time a third police

officer, Victor Jordan, arrived at the scene.

As he got out of the car, Holmes -- who was wearing a

large parka -- reached several times toward the right rear

pocket of his pants. Phillip told him to stop: Holmes' reach-

ing made the officer ``awfully nervous,'' given that Phillip had

observed Holmes reaching under the driver's seat in the

course of pulling him over. Id. at 1112. As Phillip would

later explain, he was `` c oncerned that Holmes could be

possibly armed.'' Id. at 12. ``It was just a very awkward

moment. It was just a suspicious manner. It just didn't feel

comfortable at allTTTT He had a huge black and gray jacket

on with a numerous amount of pockets. I couldn't reveal if

he had a weapon or anything.'' Trial Tr. at 183. The officer

``felt a threat levelTTTT I assume d that he was easily

armed.'' Id. at 207.

After briefly complying with the officer's directive, Holmes

once again began to reach for his pocket. At this point, while

Holmes and the officers were standing at the trunk of the car,

Phillip told Holmes that he was going to pat him down.

Phillip later testified that he decided on this course because

``I felt that he was probably armed.'' Suppression Hr'g Tr. at

14. Holmes placed his hands on the trunk and allowed Phillip

to proceed. During the pat-down, Phillip detected a ``hard,''

``square object'' in the front left pocket of Holmes' parka. Id.

at 14. He asked Holmes what the object was, and Holmes

said it was a scale. Later, Phillip would testify that, on

hearing Holmes' answer, he ``just thought the object was a

scale,'' and did not think it was a firearm. Id. at 14, 32.

Phillip removed the object and verified that it was a digital

pocket scale. He also noticed a white residue on the scale.

Phillip asked Holmes if there was anything else the officers

should know about, and Holmes said there was not. Id. at 15.

Phillip then resumed the pat-down. Holmes once again

moved his right hand toward his back pocket. The officers

again advised him to stop, but this time Holmes responded by

striking Phillip with his left elbow. A melee ensued, during

which Holmes ``threw several punches and kicks'' at the

officers. Id. at 16. Following a long struggle, Holmes was

restrained and placed in handcuffs.

After they subdued him, the officers searched Holmes' car

and found beneath the driver's seat a loaded nine millimeter

semi-automatic gun and a bag with 14 rounds of ammunition.

They also searched Holmes himself and found 58 empty

Ziploc bags and a plastic bag containing crack cocaine.

Officer Jordan drove Holmes to D.C. General Hospital for

treatment of minor injuries sustained in the fight. When

they arrived at the hospital, Jordan discovered another quan-

tity of cocaine on the floor of the transport van in the area

where Holmes had been seated. Jordan would testify that

Holmes had been the van's only occupant and that pursuant

to established procedure Jordan had inspected the van prior

to placing Holmes in it and had not observed anything on the

floor. Jordan recovered a third quantity of cocaine from

Holmes while searching him in the hospital's cell block. In

total, 9.2 grams of cocaine base were seized from Holmes and

the floor of the transport van.

A grand jury indicted Holmes for possession of a firearm

and ammunition by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1); possession with intent to distribute five grams or

more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B)(iii); and possession of a firearm in furtherance

of a drug trafficking offense, in violation of 18 U.S.C.

§ 924(c)(1). Holmes filed a motion to suppress all the physi-

cal evidence seized on the night in question. The district

court denied the motion. The court noted that ``there has

been a great deal of case law that has examined when TTT

items are seized unreasonably and no two cases are the

same.'' Suppression Hr'g Tr. at 56. The court concluded

that `` i n this judicial officer's view it simply cannot be said

that any of the actions of the police on the basis of what they

saw was unreasonable.'' Id. The court held that the officers

had proper grounds to stop and frisk Holmes and had proba-

ble cause to search him incident to his arrest for assaulting

them. Id. at 5758. Holmes was convicted on all counts and

now appeals the denial of his motion to suppress.

II.

Holmes contends that the government subjected him to an

unreasonable search and seizure, in violation of the Fourth

Amendment, when Officer Phillip removed the digital scale.

He also maintains that evidence seized after the fight should

be suppressed as fruits of that illegal seizure. Finally, he

argues that the officers were not authorized to search his car

incident to the arrest for assault.

In response, the government maintains that the seizure of

the scale was lawful under Terry v. Ohio, 392 U.S. 1 (1968).

Regarding the search of the car, the government relies on

New York v. Belton, 453 U.S. 454 (1981), and Thornton v.

United States, 124 S. Ct. 2127 (2004), which allow police to

search the passenger compartment of an automobile incident

to the arrest of a recent occupant.

We review de novo the district court's determination of

questions of law and its conclusions regarding reasonable

suspicion and probable cause. See Ornelas v. United States,

517 U.S. 690, 699 (1996); United States v. Christian, 187 F.3d

663, 666 (D.C. Cir. 1999). At the same time, the Supreme

Court has ``hasten ed to point out that a reviewing court

should take care both to review findings of historical fact only

for clear error and to give due weight to inferences drawn

from those facts by resident judges and local law enforcement

officers.'' Ornelas, 517 U.S. at 699. We also defer to the

district court's determination of witness credibility. See

Christian, 187 F.3d at 666.

A. This case comes down to one question: given all the

foregoing facts, did Officer Phillip act unreasonably when he

removed the hard, square object from Holmes' jacket pocket

during the course of the frisk? There is no dispute that

Phillip lawfully stopped Holmes for a traffic infraction. See

United States v. Mitchell, 951 F.2d 1291, 1295 (D.C. Cir.

1991). Nor is there any dispute that Phillip was justified in

undertaking a frisk or pat-down of Holmes. Under Terry

and its progeny, a police officer may perform a protective

frisk if he has reason to believe, based on ``specific and

articulable facts TTT taken together with rational inferences

from those facts,'' that ``he is dealing with an armed and

dangerous individual.'' Terry, 392 U.S. at 21, 27. During the

traffic stop, Phillip observed Holmes reaching under his seat

as if to hide or retrieve a weapon. Holmes admitted that he

had been drinking. Once out of the car, Holmes kept reach-

ing for his back pocket despite continued warnings from the

officers. These circumstances certainly gave Phillip ample

reason to be ``awfully nervous'' and ``concerned that Holmes

could be TTT armed.'' Suppression Hr'g Tr. at 1112.

The contested issue is whether Officer Phillip acted unrea-

sonably in taking out the hard, square object he felt in

Holmes' parka pocket. The Court in Terry explained that the

scope of a protective frisk ``must be limited to that which is

necessary for the discovery of weapons which might be used

to harm the officer or others nearby.'' 392 U.S. at 26.

Holmes argues that he told the officer that the object was a

scale, that Phillip thought it was a scale, and therefore there

was no threat to the officers' safety that justified removing it.

Indeed, Phillip testified that he did not think the object was a

firearm. Suppression Hr'g Tr. at 32.

To the extent this argument is based on Officer Phillip's

personal motivations for removing the scale, it misses the

point. The propriety of a search under the Fourth Amend-

ment depends on ``an objective assessment of the officer's

actions in light of the facts and circumstances confronting him

at the time,'' Scott v. United States, 436 U.S. 128, 136 (1978),

and not on the officer's own subjective intent in executing the

search. See Whren v. United States, 517 U.S. 806, 81213

(1996); United States v. Rocky Brown, 334 F.3d 1161, 1166

67 (D.C. Cir. 2003). The fact that Phillip failed to testify that

he thought the object was a weapon, or the fact that he

apparently believed the item was a scale, does not determine

our inquiry. See United States v. Monte Brown, 374 F.3d

1326, 1327 (D.C. Cir. 2004) (finding probable cause to search

trunk in light of inferences from items found in passenger

compartment, even though officer ``said nothing about what

the items found in the passenger compartment signified to

him''); United States v. Swann, 149 F.3d 271, 272 (4th Cir.

1998) (``Although the searching officer did not testify that he

believed the item in Swann's sock to be a weapon when he

removed it, a reasonable officer in his circumstances could

well have believed that the item was a weapon TTT and

therefore the seizure did not exceed the permissible bounds

of a Terry stop.'').

The only relevant question is whether a reasonable officer,

knowing what Phillip knew at the moment of seizure, would

have been justified in removing the scale. Under these

circumstances, we hold that he would have been. Recollect

what Officer Phillip knew as he began to frisk Holmes:

Holmes had been very hesitant to pull over in the first place.

While in the automobile, he had repeatedly reached under the

driver's seat, as if to retrieve a weapon. He had been

drinking. Once out of the car, he continuously reached for

his pocket -- despite repeatedly being directed not to do so.

He was wearing a ``huge'' jacket with ``numerous'' pockets.

Officer Phillip was fully justified in being ``awfully nervous'' as

he began the frisk. Suppression Hr'g Tr. at 11.

Then he felt the hard object in one of these numerous

pockets. Holmes said it was a scale. Officer Phillip thought

it was. But the Fourth Amendment does not require the

officer to gamble his safety and that of those around him on

the accuracy of such assumptions. The officer did not have to

take Holmes at his word that the object was a scale, and

proceed with the frisk solely on that basis. We cannot fault

the officer for taking the simple step of checking to ensure

that the hard object was not something more threatening

before continuing. The object did not feel like a firearm, but

it could have been another type of weapon -- a box cutter, for

example. See Swann, 149 F.3d at 272 (reasonable for officer

to believe hard object in defendant's sock, which turned out to

be credit cards bound together, could have been a box cutter).

Moreover, the scope of a Terry frisk is not limited to

weapons, but rather to ``concealed objects which might be

used as instruments of assault.'' Sibron v. New York, 392

U.S. 40, 65 (1968) (emphasis added). A hard, square object

would seem to fit that description well. Other courts have

admitted items that strike us as less likely instruments of

assault than the scale at issue here. See United States v.

Rahman, 189 F.3d 88, 120 (2d Cir. 1999) (envelope containing

fraudulent passports); United States ex rel. McNeil v. Run-

dle, 325 F. Supp. 672, 677 (E.D. Pa. 1971) (watch).

The Supreme Court has recognized that ``traffic stops may

be dangerous encounters.'' Maryland v. Wilson, 519 U.S.

408, 413 (1997); see also Pennsylvania v. Mimms, 434 U.S.

106, 110 (1977). Approaching a stopped car -- particularly

when there is reason to believe the driver or occupants may

be armed -- is one of the more perilous duties imposed on

law enforcement officers. In 2002, according to a Depart-

ment of Justice report, 58,066 police officers were assaulted in

the line of duty. U.S. Dept. of Justice, Federal Bureau of

Investigation, Uniform Crime Reports: Law Enforcement

Officers Killed and Assaulted 73 (2002). Eleven percent of

those assaults occurred during traffic stops or pursuits. Id.

In the same year, 56 officers were killed in the line of duty

(not counting accidental deaths), and 10 of those killings took

place during traffic stops or pursuits -- the second leading

category, behind ambushes. Id. at 5. We cannot say that

Officer Phillip took any unreasonable steps in attempting to

ensure that he would not become one of these statistics.

B. Finding nothing unlawful about the seizure of the

scale, we do not reach Holmes' argument that the seizure

tainted the search incident to his arrest for assault. We can

similarly dispose of Holmes' related argument that he was

effectively placed under arrest during the frisk rather than

after the assault. As our holding above makes clear, Officer

Phillip did not exceed the scope of a proper Terry frisk and,

accordingly, there is no basis for finding that the pat-down

constituted an arrest.

We are also unpersuaded by Holmes' final contention --

that the search of his car exceeded the scope of a search

incident to arrest. When the police make a lawful arrest, the

Fourth Amendment permits them to search the arrestee and

the area within his immediate control. Chimel v. California,

395 U.S. 752, 763 (1969). In New York v. Belton, 453 U.S.

454, 460 (1981), the Supreme Court held that such searches

may extend to the passenger compartment of an automobile,

so long as the person arrested was an occupant or recent

occupant of the automobile. Just last Term, the Court clari-

fied that Belton's rule applies regardless of whether the

police first initiate contact with the arrestee while he is still

inside the vehicle. Thornton v. United States, 124 S. Ct.

2127, 2129 (2004).

Here, the district court found that Holmes was placed

under arrest for assaulting Officer Phillip. Suppression Hr'g

Tr. at 57. The court credited Phillip's testimony that Holmes

had elbowed him without provocation and had proceeded to

engage the officers in a fight. See id. at 5657. Thus, the

officers clearly had probable cause to arrest Holmes and to

search both his person and the passenger compartment of his

car.

Holmes first argued, in his initial brief, that the Belton rule

did not apply to this case because the police arrested him

outside his car. If that argument had any traction before

Thornton it has none after it; the police in Thornton did not

even accost the defendant until after he was outside the

vehicle, see 124 S. Ct. at 2129, and the Court ruled that

Belton still applied.

After we asked the parties to submit supplemental briefs in

light of Thornton, Holmes understandably altered his position

and argued for reversal based on the district court's failure

expressly to find that the vehicle was subject to the defen-

dant's control at the time the officers commenced the search.

According to Holmes, in the absence of such a finding, the

underlying justification for a Belton search evaporates.

Supp. Br. at 3, 5.

This contention was rejected in United States v. Wesley,

293 F.3d 541, 549 (D.C. Cir. 2002) (``the police may search the

passenger compartment of the vehicle without regard to

whether the occupant was removed and secured at the time of

the search''). Indeed, in Thornton itself, the defendant had

been handcuffed and placed in the back seat of the patrol car

prior to the search of his vehicle. See 124 S. Ct. at 2129.

The search was upheld even though the defendant plainly had

no control over the vehicle at the time.

III.

`` W hat the Constitution forbids is not all searches and

seizures, but unreasonable searches and seizures.'' Terry,

392 U.S. at 9 (citation omitted). We agree with the district

court that ``it simply cannot be said that any of the actions of

the police on the basis of what they saw was unreasonable.''

Suppression Hr'g Tr. at 56. The judgment of the district

court is affirmed.

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