13 F.3d 838 (5th Cir. 1994), 92-8274, United States v. Michelletti

Docket Nº:92-8274.
Citation:13 F.3d 838
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Johnny Carl MICHELLETTI, Defendant-Appellant.
Case Date:January 25, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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13 F.3d 838 (5th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Johnny Carl MICHELLETTI, Defendant-Appellant.

No. 92-8274.

United States Court of Appeals, Fifth Circuit

January 25, 1994

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Marc H. Robert, Asst. Federal Public Defender and Lucien B. Campbell, Federal Public Defender, El Paso, TX, for defendant-appellant.

Joseph H. Gay, Jr., Richard L. Durbin, Jr., Asst. U.S. Attys., and Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.


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 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.


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.

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:

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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.

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. Sec. 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.


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, 104 L.Ed.2d 1 (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 warrant an intrusion. See United States v. Galberth, 846 F.2d 983, 989 (5th Cir.), cert. denied, 488 U.S. 865, 109 S.Ct. 167, 102 L.Ed.2d 137 (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, 32 L.Ed.2d 612 (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

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safety or that of others is in danger. Id. at 27, 88 S.Ct. at 1883. In assessing 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, 25 L.Ed.2d 532 (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 possible alcoholic beverage offenses 3 arising under regulations of the Texas Alcoholic Beverage Commission. Tex.Alco.Bev.Code Sec. 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. Sec. 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. Sec. 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 Sec. 28.10(b) (West 1978) (prohibiting a mixed beverage permittee from allowing a patron to take a beverage off the premises); Sec. 32.15 (West 1993) (barring the removal of alcoholic beverages from the premises of a private club); Sec. 71.03 (forbidding an off-premise licensee from selling beer to be opened or...

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