U.S. v. Nash, s. 88-2764 and 88-2860
| Decision Date | 11 August 1989 |
| Docket Number | Nos. 88-2764 and 88-2860,s. 88-2764 and 88-2860 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kenneth H. NASH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
K. Tate Chambers, Asst. U.S. Atty., Office of the U.S. Atty., Peoria, Ill., for U.S.
Gary L. Betz, U.S. Atty., Tampa, Fla., for Nash.
Before BAUER, Chief Judge, WOOD, Jr., Circuit Judge, and WILL, Senior District Judge. 1
After a bench trial, the district court judge convicted defendant Kenneth Nash of possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), and of carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c). The court sentenced Nash to six months imprisonment for the possession conviction and to five years imprisonment for the weapons conviction. The court also fined Nash $75,000. On appeal, Nash raises two issues. First, he contends that the district court should have granted his motion to suppress evidence because the search of his car was illegal. Second, he argues that he was not convicted of a "drug trafficking offense" within the meaning of 18 U.S.C. Sec. 924(c). For the following reasons, we affirm Nash's conviction.
On the morning of November 11, 1987, Illinois State Trooper James Drozdz was on duty alone when the defendant, driving a 1982 Mercury Grand Marquis, entered the highway in front of Drozdz, swerving as he made the turn onto the highway. The car was coming from Gulfport, Illinois, where the bars do not close until 5:00 a.m. Officer Drozdz followed the car, which continued to weave its way along the highway. Drozdz followed the car for approximately four miles. When he approached within a car-length of the defendant's car, Drozdz noticed that the defendant made a "furtive gesture." He observed that the defendant appeared to raise himself up from the car seat and began reaching towards the floor. Although unmarked, Officer Drozdz's car clearly was identifiable as a police car. It was a dark blue Dodge equipped with several antennae and police lights on the rear shelf. Drozdz followed the defendant for another quarter of a mile before pulling him over.
Drozdz approached the car and noticed that the defendant's appearance was unkempt: his face was unshaven and puffy, his hair mussed, his eyes red, and his breath smelled of alcohol. A German shepard was in the back seat. After observing a jacket tucked under defendant's lap and stretched out to the floor, Drozdz asked Nash to leave the car. Drozdz reached into the car and lifted up the jacket with his left arm. Under the jacket was an open garbage bag containing what looked and smelled like marijuana. Drozdz took the defendant back to the squad car, conducted a pat-down search, gave him the Miranda warnings, and called for back-up assistance. After receiving Nash's consent, Drozdz searched the car further. He found a loaded .25 caliber semi-automatic pistol and a stun gun under the driver's seat. In addition to the pound of marijuana found in the front seat, he found another four pounds of marijuana and a leather pouch containing more than $2,500 in $50 bills in the trunk.
Nash now objects to Officer Drozdz's initial search of the car, which consisted of Drozdz lifting the jacket off the floor. In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court set forth the circumstances in which the search of a vehicle incident to an investigatory stop is lawful. The Court stated:
the search of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief that based on 'specific and articulate facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
Id. at 1049, 103 S.Ct. at 3480 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)). See also United States v. Denney, 771 F.2d 318 (7th Cir.1985). The question, then, is whether Officer Drozdz's concern for his safety thus warranting his search of the car, was justified under the circumstances. We think it was. In extending the principle of Terry to the search of areas accessible to the person stopped, the Supreme Court recognized that "roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect." Long, 463 U.S. at 1049, 103 S.Ct. at 3480. When Drozdz searched Nash's car, he was confronted with the situation described in Long.
Officer Drozdz testified that Nash made a "furtive gesture" as the police car pulled up behind him. A reasonable interpretation of this "furtive gesture" was that the defendant was hiding a gun, thus giving Drozdz cause to be concerned about his safety. See Denney, 771 F.2d at 322 (). See also Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 1904-05, 20 L.Ed.2d 917 (1968) (). Drozdz's suspicion was further heightened when he noticed a jacket tucked under the defendant's lap and stretched out over the floor of the front seat. The jacket covered the area in which Nash appeared to have hidden something when he made the "furtive gesture". These two facts, the furtive gesture and the position of the jacket, warranted Drozdz's belief that a search was necessary for his safety. During the hearing on defendant's motion to suppress the evidence, the district court assessed Drozdz's situation as follows: "it seems to me it would have been foolhardy for the officer not to have done what he did." The district court aptly assessed the situation.
Officer Drozdz also limited his search to "what was minimally necessary to learn whether (Nash) was armed." Terry, 392 U.S. at 30, 88 S.Ct. at 1884. As discussed above, Drozdz had a reasonable suspicion that there might be a weapon underneath the...
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