550 F.3d 734 (8th Cir. 2008), 07-2860, United States v. Oliver

Docket Nº:07-2860.
Citation:550 F.3d 734
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jeffery Lee OLIVER, Defendant-Appellant.
Case Date:December 23, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 734

550 F.3d 734 (8th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jeffery Lee OLIVER, Defendant-Appellant.

No. 07-2860.

United States Court of Appeals, Eighth Circuit.

December 23, 2008

Submitted: April 15, 2008.

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Shana Gail Buchanan, argued, on the brief, Gary R. Bryant-Wolf, Minneapolis, MN, for Defendant-Appellant.

Peter Mark Jarosz, argued, on the brief, Elizabeth Altman, AUSA, Madison, WI, for Plaintiff-Appellee.

Before LOKEN, Chief Judge, JOHN R. GIBSON and MELLOY, Circuit Judges.

LOKEN, Chief Judge.

Jeffery Lee Oliver entered a conditional plea of guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2) and now appeals the district court's 1 denial of his motion to suppress the firearm. Following two evidentiary suppression hearings, the district court ruled that Minnesota State Highway Patrol Officer Michael Engum made a valid late-night traffic stop and then conducted a valid pat-down search of Oliver, the vehicle's passenger, and discovered the firearm. On appeal, Oliver renews his contention that the pat-down search violated his Fourth Amendment rights because Engum lacked reasonable suspicion to believe that Oliver was armed and dangerous. On that fact-intensive issue of law, we agree with the district court's conclusion. Oliver also argues that the search was invalid because Engum lacked reasonable suspicion that Oliver was engaged in criminal activity. We reject that contention because it was not timely raised in the district court and is without merit. Accordingly, we affirm.

I.

Many background facts are undisputed. To the extent Engum and Oliver gave differing accounts of their encounter at the suppression hearings, the district court credited Engum's version. Oliver does not challenge the court's findings of fact as clearly erroneous. See United States v. Taylor, 519 F.3d 832, 833-35 (8th Cir.2008) (standard of review).

At approximately 11:45 p.m., Engum stopped a Ford Expedition near Bemidji, Minnesota, for traveling without a rear license plate. The Expedition did not immediately

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pull over when Engum activated his emergency lights, traveling some two hundred yards before pulling into a gas station. As Engum approached the driver's side, the driver threw a set of keys onto the roof. Engum observed two men in the front seats, the driver and passenger Oliver. Engum asked the driver for his license. The driver's hands were shaking as he handed over an instruction permit that authorizes an adult to operate a vehicle when accompanied by a licensed driver at least eighteen years old. Engum asked Oliver if he had a valid driver's license. Oliver said no and handed Engum an identification card from the Red Lake Band of Chippewa. Oliver appeared nervous and edgy and refused to make eye contact. Engum asked whether the vehicle was registered; neither occupant replied.

Engum returned to his vehicle and arranged for a custody tow, his usual practice when no occupant is a licensed driver. Before completing the paperwork, Engum walked back to the Expedition, asked the driver to exit, patted him down, and placed him in the back seat of the patrol car. Engum returned to the Expedition and told Oliver he could not remain in the vehicle because it would be towed and inventoried. Engum offered Oliver a ride to the Red Lake Reservation boundary, located some twenty-two miles from Bemidji. Oliver neither accepted nor refused.

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