969 F.2d 1572 (5th Cir. 1992), 91-4172, United States v. Rideau

Docket Nº:91-4172.
Citation:969 F.2d 1572
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Izeal RIDEAU, Jr., Defendant-Appellant.
Case Date:August 14, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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969 F.2d 1572 (5th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Izeal RIDEAU, Jr., Defendant-Appellant.

No. 91-4172.

United States Court of Appeals, Fifth Circuit

August 14, 1992

Page 1573

Donald E. Sample, Beaumont, Tex. (Court-appointed), for defendant-appellant.

Paul Naman, Kerry M. Klintworth, Asst. U.S. Attys., Bob Wortham, U.S. Atty., Beaumont, Tex., for plaintiff-appellee.

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

Before POLITZ, Chief Judge, GOLDBERG, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case requires us to consider the reasonableness of a police officer's actions in an encounter with a person he suspected was intoxicated, standing in the road, at night, in a high crime area. A panel of this court held that the officer violated the Fourth Amendment when he reached out and touched the pants pocket of the individual and discovered a gun. We granted rehearing en banc, and now hold that the officer's actions were reasonable under the Fourth Amendment.

I.

At about 10:30 one night in July of 1989, 1 police officer Jimmy Ellison and his partner were driving toward the intersection of Bonham Street and Martin Luther King Boulevard, a high crime area in Beaumont, Texas, where people often carried weapons and transacted drug deals on the street, and where public drunkenness was a recurrent problem. As he drove up Bonham Street, officer Ellison saw a man wearing dark clothing standing in the road. Ellison flashed his bright lights to see the man better and to encourage him to get out of the street. The man turned to step out of the roadway and stumbled as he moved toward the shoulder. Ellison suspected that he was drunk. He pulled over, got out of his car, and approached the man to investigate. Ellison asked the man his name. He seemed nervous. When the man did not answer but instead began to back away, Ellison immediately closed the gap and reached out to pat the man's outer clothing. Ellison's quick move was to see if he had any weapons that could harm him or his partner. The first place he touched was the man's right front pants pocket, where he felt a firearm. He shouted "gun" to his partner and grabbed the man's arm. Ellison and his partner then put the man up against the patrol car, removed the gun from his pocket, handcuffed him and placed him under arrest.

The man was later identified as Izeal Rideau, previously convicted of robbery and burglary in Texas state court. Rideau was charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Before his trial, he moved to suppress the gun, arguing that Ellison violated his Fourth Amendment rights when he stopped him and patted his pants pocket. The district court denied the motion to suppress, and a jury convicted Rideau. A panel of this court reversed Rideau's conviction on appeal, however, finding that although the officers were justified in detaining Rideau, they had failed to provide specific and articulable facts to justify a patdown, and thereby violated the Fourth Amendment's prohibition on unreasonable searches and seizures, 949 F.2d 718. We granted rehearing en banc to consider the issue further.

II.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme

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Court explained the limits that the Fourth Amendment imposes on the conduct of police officers on the beat. First, it recognized that effective crime prevention and detection requires that officers be allowed to detain individuals briefly on the street even though there is no probable cause to arrest them. To justify such brief detentions, the officers must have a reasonable suspicion that criminal activity is afoot. The showing required to demonstrate "reasonable suspicion" is considerably less than that which is necessary to prove probable cause. In this context, the Fourth Amendment requires only some minimal level of objective justification for the officer's actions, measured in light of the totality of the circumstances. See United States v. Sokolow, 490 U.S. 1, 6-8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989).

Second, the Court recognized that law enforcement officers need to protect themselves and the public at large from violence that may ensue in the course of such encounters. It therefore held that if police officers are justified in believing that the individuals whose suspicious behavior they are investigating at close range are armed and presently dangerous to the officers or to others, they may conduct a limited protective search for concealed weapons. Terry, 392 U.S. at 24, 88 S.Ct. at 1881; Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). An officer need not be certain that an individual is armed; the issue is whether a reasonably prudent man could believe, based on "specific and articulable facts," that his safety or that of others is in danger. Id. 392 U.S. at 27, 88 S.Ct. at 1883; Maryland v. Buie, 494 U.S. 325, 332, 110 S.Ct. 1093, 1097, 108 L.Ed.2d 276 (1990).

In 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 a man of reasonable caution in the belief' that the action taken was appropriate?". Terry, 392 U.S. at 22, 88 S.Ct. at 1880 (citations omitted). The officer's state of mind, or his stated justification for his actions, is not the focus of our inquiry. See Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2782-83, 86 L.Ed.2d 370 (1985); Scott v. United States, 436 U.S. 128, 138-39, 98 S.Ct. 1717, 1723-24, 56 L.Ed.2d 168 (1978); United States v. Colin, 928 F.2d 676, 678 (5th Cir.1991). As long as all the facts and circumstances, viewed objectively, support the officer's decisions, the Fourth Amendment is satisfied. We must attempt to put ourselves in the shoes of a reasonable police officer as he or she approaches a given situation and assesses the likelihood of danger in a particular context.

There is no serious question that Ellison had reasonable suspicion to detain Rideau. Rideau had been standing in the roadway at night in a high crime area, where public drunkenness was common, and stumbled out of the road only when Ellison flashed his lights at him. Ellison had reason to believe that Rideau was drunk. Since public intoxication is a criminal offense under Texas law, see Tex. Penal Code § 42.08 (Vernon's 1991), the officers had adequate grounds for a stop. In any event, Terry recognizes that "[e]ncounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime." 392 U.S. at 13, 88 S.Ct. at 1876. Police have long served the public welfare by removing intoxicated people from the public streets, where they pose a hazard to themselves and others. See Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968); see also Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973) (describing "community caretaking functions" that police officers serve). Officer Ellison was warranted in stopping to investigate the situation and check on the man's condition.

We also find that Ellison's decision to reach out and pat Rideau's pocket rested on specific and articulable facts. A reasonably prudent man in Ellison's situation could have believed that his safety and that of his partner was in danger. Ellison already had some reason to believe that Rideau

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might be intoxicated or perhaps injured. When approached and asked his name, Rideau did not respond but appeared nervous and, critically, backed away. It was not unreasonable under the circumstances for Ellison to have feared that Rideau was moving back to give himself time and space to draw a weapon. It was not then unreasonable for Ellison simply to touch Rideau's front pants pocket to determine whether he had a gun.

Rideau's specific moves took place after a detention, at night, in a high crime area where the carrying of weapons is common. These are articulable facts upon which a police officer may legitimately rely in justifying his actions. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Laing, 889 F.2d 281, 286 (D.C.Cir.1989); United States v. Trullo, 809 F.2d 108, 111 (1st Cir.1987). Stripped from their context, the backward steps offer no threat, but to a police officer in Ellison's situation, they become very significant in the matrix of the general facts. Stated abstractly, specific actions may be construed as more or less hostile depending on the setting in which they occur. Of course, that an individual is in a high crime neighborhood at night is not in and of itself enough to support an officer's decision to stop or frisk him. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). But when someone engages in suspicious activity in a high crime area, where weapons and violence abound, police officers must be particularly cautious in approaching and questioning him. Trained, experienced officers like Ellison may perceive danger where an untrained observer would not. Id. at 52 n. 2, 99 S.Ct. at 2641 n. 2. We are unwilling to tie the hands of police officers operating in potentially dangerous situations by precluding them from taking reasonable steps to ensure their safety when they have legitimately detained an individual.

We do not suggest that the police have a right to frisk anyone on the street at night in a high crime neighborhood. There was no such rousting here. First, as we have observed...

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