42 F.3d 906 (5th Cir. 1995), 94-60243, United States v. Maldonado

Docket Nº:94-60243.
Citation:42 F.3d 906
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donato Garcia MALDONADO, Defendant-Appellant.
Case Date:January 06, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 906

42 F.3d 906 (5th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donato Garcia MALDONADO, Defendant-Appellant.

No. 94-60243.

United States Court of Appeals, Fifth Circuit

January 6, 1995

Page 907

Jose Luis Ramos, McAllen, TX, for appellant.

Paula C. Offenhauser, Jim Powers, Asst. U.S. Attys., Gaynelle Griffin Jones, U.S. Atty., Houston, TX, for appellee.

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

Before WHITE, Associate Justice (Ret.), 1 BARKSDALE and PARKER, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Donato Garcia Maldonado's principal claim is that, pursuant to Minnesota v. Dickerson, --- U.S. ----, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), seizure of heroin from his boot was outside the lawful scope of a pat-down for weapons pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); but, we must address first whether the issue was raised in district court. Finding that it was not, we review only for plain error. Also at issue is the denial of a sentencing reduction for acceptance of responsibility. We AFFIRM.

I.

Maldonado, while driving a pickup truck, was stopped on August 24, 1993, for speeding by Officers Perez and Ruiz of the Duval County (Texas) Sheriff's Department. When

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Officer Ruiz inquired about the truck's ownership, Maldonado would not answer. Suspecting that the truck had been stolen, Officer Ruiz attempted a license check while Officer Perez watched Maldonado.

Maldonado appeared nervous and backed away from Officer Perez. Because of fear for his safety, Officer Perez stayed with Maldonado. He noticed a bulge in the right front pocket of Maldonado's trousers, and, suspecting a weapon, asked for permission to pat Maldonado down, even though Maldonado had stated he had money in his pocket. Maldonado consented, and the bulge proved to be money. 2 But, based on Maldonado's continuing nervous behavior, which caused Officer Perez to continue to fear for his safety, Officer Perez conducted a full pat-down and discovered a bulge on one of Maldonado's boots. Again suspecting a weapon, Officer Perez reached into the boot and removed a rounded, duct-taped package. 3

Upon removal, Officer Perez was of the opinion that the package contained drugs, and, with the help of Officer Ruiz, handcuffed Maldonado and placed him under arrest. Officer Perez then made a small incision in the package and discovered a black, sticky substance. Subsequent testing revealed the substance to be 43.8 grams of heroin.

Maldonado was charged with possession of heroin with intent to distribute. After the district judge refused to allow a conditional plea of guilty (preserving the suppression claim as to the heroin removed from Maldonado's boot), Maldonado waived his right to a jury trial. The suppression motion was included in the bench trial and was denied. The district judge found Maldonado guilty as charged. At sentencing, the court denied Maldonado an acceptance of responsibility reduction, and sentenced him, inter alia, to 40 months imprisonment.

II.

Maldonado challenges the denials of the suppression motion and the acceptance of responsibility request.

A.

The findings of fact on the motion to suppress are reviewed only for clear error, with the record being viewed in the light most favorable to the government (prevailing party). 4 E.g., United States v. Michelletti, 13 F.3d 838, 841 (5th Cir.) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 102, 130 L.Ed.2d 50 (1994); United States v. Ponce, 8 F.3d 989, 995 (5th Cir.1993); United States v. Rideau, 969 F.2d 1572, 1576 (5th Cir.1992) (en banc). The district court's legal conclusions are reviewed de novo. E.g., Michelletti, 13 F.3d at 841; United States v. Johnson, 932 F.2d 1068, 1069 (5th Cir.1991).

  1. Maldonado claims that the seizure of the heroin was outside the lawful boundaries of a Terry search. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court held that the Fourth Amendment permits an investigatory stop of an individual when a police officer, based on articulable facts, has a reasonable suspicion that the individual is involved in criminal activity. Id. at 19, 88 S.Ct. at 1878; Michelletti, 13 F.3d at 841. That stop may include "a reasonable search [of the individual] for weapons ... where [the officer] has reason to believe that he is dealing with an armed and dangerous

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    individual." Terry, 392 U.S. at 27, 88 S.Ct. at 1883; Michelletti, 13 F.3d at 840; Rideau, 969 F.2d at 1575.

    Maldonado does not dispute that the officers were justified in conducting a Terry search. Rather, relying upon Minnesota v. Dickerson, --- U.S. ----, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), he maintains that the seizure of the package from his boot exceeded the lawful scope of the search; that although Officer Perez was entitled to pat down the outside of Maldonado's boot, he was not permitted to reach inside and retrieve the package.

    The Court addressed in Dickerson when contraband is seized lawfully under a Terry search. It held that if, during a Terry weapons search, a police officer "feels an object whose contour or mass makes its identity [as contraband] immediately apparent", its seizure is lawful. Dickerson, --- U.S. at ----, 113 S.Ct. at 2137. As Dickerson reaffirmed, the purpose of a Terry search is to eliminate the threat of violence to an investigating officer, and is therefore "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Dickerson, --- U.S. at ----, 113 S.Ct. at 2136 (quoting Terry, 392 U.S. at 26, 88 S.Ct. at 1882).

    In Dickerson, a police officer conducting a Terry search detected a small lump in the detainee's jacket pocket. --- U.S. at ----, 113 S.Ct. at 2133. The officer knew that the lump was not a weapon; upon further manipulating it with his fingers, he suspected it was crack cocaine. Id. at ----, 113 S.Ct. at 2138. But, because the officer had already concluded that the lump was not a weapon, the search had already ceased to be for the lawful purpose of checking for weapons. The Court held that the object could have been seized lawfully only if its identity as contraband was immediately apparent while the officer was still searching for a weapon. Id. at ----, 113 S.Ct. at 2137. Restated, so long as an officer is investigating an object that reasonably may be a weapon, the Terry search may continue. 5

    Officer Perez testified that he patted down Maldonado's boots because detainees "have sometimes concealed weapons in" them. When he noticed the bulge on one boot, he asked Maldonado "if it was a knife, a gun, a grenade or something." Our inquiry is whether Officer Perez could have believed reasonably that the item concealed in Maldonado's boot was a weapon (Dickerson issue). 6 Here, the Dickerson issue has two components: after detecting the bulge on Maldonado's boot, was Officer Perez justified in reaching into it; and, if so, was he justified in removing the object? Guiding our analysis is the rule that

    [i]n assessing the reasonableness of an officer's actions, "it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant...

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