U.S. v. Glenn, 98-1361MN

Decision Date27 August 1998
Docket NumberNo. 98-1361MN,98-1361MN
Citation152 F.3d 1047
PartiesUNITED STATES of America, Appellee, v. Michael Deshawne GLENN, also known as George Loper, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Robert D. Richman, Minneapolis, MN, argued, for Appellant.

Rabea J. Zayed, AUSA, Minneapolis, MN, argued (Clifford B. Wardlaw, AUSA, Minneapolis, MN, on the brief), for Appellee.

Before FAGG, BRIGHT, and BEAM, Circuit Judges.

FAGG, Circuit Judge.

Following his conviction for being a felon in possession of a firearm, Michael Deshawne Glenn appeals the district court's denial of Glenn's motion to suppress. We affirm.

On June 2, 1997, at about 5:30 p.m., state trooper John Thompson stopped Glenn on the interstate in Minneapolis, Minnesota, for driving with a cracked windshield and a broken taillight. When Thompson approached Glenn's vehicle, Glenn immediately and repeatedly apologized. Thompson asked Glenn for a driver's license and proof of insurance. Glenn said he did not have his driver's license, which Thompson interpreted to mean Glenn did not have his license with him. Glenn also failed to produce proof of insurance. Glenn did, however, give Thompson a state welfare identification card containing his name and photograph. Thompson recognized Glenn's name from Thompson's former employment with an area jail, but could not recall the nature of Glenn's offense. Because the card Glenn provided was insufficient to identify him for purposes of the traffic stop, Thompson asked Glenn to come back to his patrol car so Thompson could access Glenn's driving record on Thompson's computer.

When Glenn and Thompson reached the patrol car, Thompson searched Glenn for weapons before placing him in the back seat. During this search, Thompson found a loaded semi-automatic handgun in Glenn's pants pocket. Thompson then arrested Glenn for carrying a concealed weapon and handcuffed him. Thompson also took out Glenn's wallet to locate additional identification and found a driver's license with both the name "George Loper" and Glenn's photograph. After Thompson placed Glenn in the back of the patrol car and began asking routine identification questions, Glenn volunteered that he had a felony record. Thompson then remembered Glenn had been at the jail for a drive-by shooting. Thompson ran a computer check on Glenn and learned Glenn did not have a valid license.

Glenn was charged with being a felon in possession of a firearm. See 18 U.S.C. § 922(g) (1994). Glenn moved to suppress the handgun, contending the pat-down search violated his Fourth Amendment rights. The magistrate judge recommended denial of the motion to suppress because the handgun would inevitably have been discovered. According to the magistrate judge, once Thompson learned Glenn did not have a valid driver's license, Thompson would have arrested Glenn for that offense and searched Glenn incident to the arrest. The district court denied the motion to suppress on the basis that the search was reasonable. Glenn then entered a conditional guilty plea, reserving his right to appeal the district court's ruling on his suppression motion.

On appeal, Glenn does not contest the traffic stop's validity, Thompson's request that he step out of his vehicle, or Glenn's detention for a computer check of his license. Glenn contends only that the motion to suppress should have been granted because there was no reasonable, articulable suspicion sufficient to justify the pat-down search and because the gun would not inevitably have been discovered. We review the facts supporting the district court's denial of the motion to suppress for clear error and review de novo the legal conclusions based on those facts. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Cunningham, 133 F.3d 1070, 1072 (8th Cir.1998), cert. denied, --- U.S. ----, 118 S.Ct. 1823, 140 L.Ed.2d 960 (1998).

We agree with Glenn that the reasonable, articulable suspicion needed to justify the pat-down search is absent in this case. The United States Supreme Court has held a warrantless pat-down search for weapons is permissible when there are "specific and articulable facts which, taken together with rational inferences from those facts," would lead a police officer reasonably to believe the suspect is "armed and presently dangerous to the officer or to others." Terry v. Ohio, 392 U.S. 1, 21 & 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see United States v. Menard, 95 F.3d 9, 10-11 (8th Cir.1996). To decide whether there is a reasonable, articulable suspicion that a suspect is armed and presently dangerous, we consider the totality of circumstances known to the officer at the time of the search. See Menard, 95 F.3d at 11-12; United States v. Abokhai, 829 F.2d 666, 670 (8th Cir.1987).

At the time of the search in this case, Thompson knew he could only ticket Glenn for the equipment violations that initially prompted the traffic stop. Additionally, Thompson testified he could not arrest Glenn for driving without his license in his possession. Thompson also knew that Glenn apologized repeatedly when Thompson approached Glenn's car and was a former jail detainee. Because Thompson did not recall the violent nature of Glenn's earlier offense until after he searched Glenn, Thompson's recollection of Glenn as a former jail detainee provided no factual basis for believing Glenn was dangerous and might be armed at the time Thompson conducted the search. Cf. United States v. Woodall, 938 F.2d 834, 837 (8th Cir.1991) (stating officer had reasonable suspicion sufficient to search driver during routine traffic stop because officer recognized driver as drug trafficker and knew drug traffickers often carried weapons). Indeed, Thompson testified that Glenn's behavior did not cause him to fear for his safety and that he had no reason to believe Glenn had a gun. Instead, Thompson testified he searched Glenn solely because this was his routine practice when placing drivers in the back seat of his car during traffic stops. In these circumstances, we conclude Thompson lacked a reasonable, articulable suspicion that Glenn was armed and dangerous at the time of the search. Cf. Menard, 95 F.3d at 10-11 (finding reasonable, articulable suspicion because officer was outnumbered by vehicle's occupants, officer recognized one passenger as drug trafficker found to be carrying a weapon, and stop occurred late at night on deserted road); Abokhai, 829 F.2d at 670 (finding reasonable, articulable suspicion because of Abokhai's...

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