160 F.3d 164 (4th Cir. 1998), 97-4813, United States v. Sakyi

Docket Nº:97-4813.
Citation:160 F.3d 164
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Collins Kusi SAKYI, Defendant-Appellant.
Case Date:October 30, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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160 F.3d 164 (4th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Collins Kusi SAKYI, Defendant-Appellant.

No. 97-4813.

United States Court of Appeals, Fourth Circuit

October 30, 1998

Argued Sept. 25, 1998.

Page 165

ARGUED: Robert Stanley Powell, Arlington, Virginia, for Appellant. Marlene Mary Wahowiak, Special Assistant United States Attorney, Office of United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Office of United States Attorney, Alexandria, Virginia, for Appellee.

Before NIEMEYER and WILLIAMS, Circuit Judges, and MAGILL, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WILLIAMS and Senior Judge MAGILL joined.

OPINION

NIEMEYER, Circuit Judge:

In this case we must decide whether a passenger in an automobile may lawfully be "patted down" in connection with a lawful traffic stop before a search of the vehicle for suspected drugs. We hold that because the officer had an objectively reasonable suspicion of criminal activity and a legitimate concern about his own safety, he acted lawfully under the Fourth Amendment in "patting down" the passenger.

I

During the evening rush hour on April 2, 1997, United States Park Police Officer Frank Joseph Ferstl observed an automobile enter the George Washington Memorial Parkway from Washington Street south of Alexandria, Virginia, and noticed that one of the vehicle's brake lights was not functioning. After Ferstl stopped the car and requested that the driver, Antonio Gunn, produce a license and registration, Gunn said that he "did not have his license with him." When Gunn opened the glove box to retrieve the registration, Officer Ferstl observed a Phillies

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Blunt cigar box. In Officer Ferstl's experience, "almost all the times [he has] come into contact with Philly Blunt boxes, there has also been--there has been evidence of marijuana. The cigars are used, commonly used to roll marijuana cigarettes." Officer Ferstl claimed that he had been involved in "several hundred" cases in which marijuana and Phillies Blunt cigar boxes were found together.

When Officer Ferstl pressed Gunn further on whether he had a driver's license at all or whether it was suspended, Gunn said he "never had a license." Despite what Gunn said, Officer Ferstl suspected that Gunn's license had been suspended. Officer Ferstl then asked the passenger in the car, Collins Sakyi, for identification, inquiring whether he had a valid driver's license, with the thought that Sakyi could drive the car home. Sakyi claimed that he too did not have his license with him. He orally gave Officer Ferstl identification information, which Ferstl did not discover was false until he returned later to the police station. Officer Ferstl requested a check on Gunn's driver's license through Park Police communications and asked Gunn to step to the rear of the car while waiting for the information. While waiting, Officer Ferstl asked Gunn if he had anything illegal in the car. Gunn said no and granted Officer Ferstl's request to search the vehicle. When the Park Police communications revealed that Gunn's license had been revoked, Officer Ferstl waited for the arrival of Lieutenant David Stover as backup before placing Gunn under arrest for driving on a revoked license. He handcuffed Gunn and placed him in the rear seat of the police cruiser under Lt. Stover's observation.

Before searching the vehicle, Officer Ferstl asked Sakyi to step to the rear of the vehicle and conducted a "pat-down" of Sakyi's outer clothing "to make sure the scene was safe before[Ferstl] went into the vehicle." As Officer Ferstl moved his hands down Sakyi's right leg, a large piece of tin foil fell to the ground containing a large, white, rock substance which Officer Ferstl believed to be crack cocaine. Officer Ferstl then arrested Sakyi for suspected possession of cocaine. A later field test confirmed that the substance was crack cocaine. Officer Ferstl's subsequent search of the vehicle produced a Remington 522 Viper .22 caliber rifle which both Gunn and Sakyi spontaneously claimed was a BB gun.

At a hearing on Sakyi's motion to suppress the evidence of cocaine, Officer Ferstl testified that he had not conducted a "search" of Sakyi but only "patted him down for weapons" because he was going to search the vehicle and he wanted, for his own protection, "to ensure that the area [was] safe." Officer Ferstl acknowledged that before he frisked Sakyi he did not have reason to believe that Sakyi had committed any criminal offense. Furthermore, as Sakyi exited the vehicle, Officer Ferstl did not observe any bulges in Sakyi's clothing, although he testified that he would not readily have been able to see any because Sakyi was wearing loose clothing. Officer Ferstl also testified that nothing Sakyi did caused Ferstl to fear for his safety.

Both Officer Ferstl and Lt. Stover, however, noted that the area on the George Washington Parkway where Officer...

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