U.S. v. Henning, 89-2126

• Decision Date: 25 June 1990
• Docket Number: No. 89-2126,89-2126
• Citation: 906 F.2d 1392
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John A. HENNING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1392

906 F.2d 1392

UNITED STATES of America, Plaintiff-Appellee, v. John A. HENNING, Defendant-Appellant.

No. 89-2126.

United States Court of Appeals, Tenth Circuit.

June 25, 1990.

Ann Steinmetz, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

William L. Lutz, U.S. Atty. (Tara C. Neda, Asst. U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BRIMMER, ^* District Judge.

BRIMMER, District Judge.

John Henning was convicted after a jury trial in the United States District Court for the District of New Mexico of one count of possession with intent to distribute more than 20 grams of methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(C), two counts of carrying or using a firearm during and in relation to the drug trafficking offense charged in Count I in violation of 18 U.S.C. Sec. 924(c)(1), and one count of possession of an unregistered firearm in violation of 26 U.S.C. Secs. 5861(d) and 5871. On appeal, Henning raises three issues: (1) whether the trial court erred by denying his motion to suppress the methamphetamine and firearms as well as statements made in connection with the seizure of the physical evidence; (2) whether the trial court's failure to define "in relation to" regarding the counts for carrying or using a firearm during and in relation to a drug trafficking offense merits reversal; and (3) whether he can be convicted of two violations of 18 U.S.C. Sec. 924(c)(1) for carrying or using two firearms during and in relation to only one underlying drug trafficking offense. Due to the Government's concession on the latter issue and because we agree, we affirm in part, vacate in part, and remand for resentencing on the firearms violation under Sec. 924(c)(1).

I.

On December 16, 1987, at approximately 2:42 a.m., Bernalillo County Sheriff's officers, who had been stationed across the street from a bar located on Isleta Boulevard in Albuquerque, New Mexico, investigating gang activity involving weapons and narcotics, heard a gunshot some 300 to 400 yards south of their position. Moments later, officer Bryan Murphy observed a yellow 1973 Chevrolet Suburban emerge from the general area of the gunshot, make "a real quick stop" at the stop sign at Isleta, and proceed north on Isleta. There was no other traffic in the area. He said, "That's it" and activated his overhead lights and siren and proceeded to pull the vehicle over. Seated in the front of the Suburban were Henning and a female, Lucinda DeMaria.

When Murphy asked Henning for his driver's license, Henning became abusive. Murphy had to again ask for the license before Henning held it out the window. When Murphy attempted to take the driver's license, Henning refused to release it. With two unsuccessful attempts, Murphy twice asked Henning to step out of the vehicle before he complied. As Henning opened the door, an automatic weapon fell to the ground. Murphy immediately drew his weapon, kicked the fallen weapon away and placed Henning's hands against the Suburban. A subsequent patdown revealed a semi-automatic pistol under his jacket. Henning was then placed under arrest for carrying a concealed weapon. ¹ Both weapons, one of which Henning had converted to automatic capability, were fully loaded and readily accessible.

Incident to the arrest, a search of his person and the Suburban resulted in the seizure of seven baggies of methamphetamine weighing 7.58 grams from Henning's shirt pocket and one baggie containing 12.54 grams of methamphetamine, along with 59 empty baggies, inside a shaving kit within a blue denim athletic bag. Officers also found a loaded .22 calibre rifle on the front seat floorboard, a .22 calibre Reuger pistol inside a black bag, and 9mm ammunition, the same calibre ammunition as used in the previous two automatic weapons. During the booking process, a brown vial containing less than a gram of methamphetamine was found in Henning's breast pocket, along with two straws, thirteen Valium pills, and $360.00 in 20-dollar denominations.

Henning filed a motion to suppress the physical evidence seized and all statements made in connection therewith, contending that the initial stop was not supported by probable cause, that no probable cause or reasonable suspicion existed for the arrest, and that no probable cause existed for the search of the Suburban. Rec.Vol. I, doc. 8, at 3. He states he gave no consent for the search and that the seizure was neither part of a lawful inventory search nor amenable to the inevitable discovery doctrine. Id. While the evidence seized may not have been in plain view, says Henning, it was not "obviously contraband or instrumentalities of a crime." Id. at 4. As for the evidence found in his pockets, Henning argues that the items were improperly removed because nothing recovered could have harmed the officers. A suppression hearing was held on February 1, 1989 and the trial court denied the motion to suppress, setting forth its reasons:

I find there was certainly reasonable reason on the part of the police officers to have stopped the car. Once they stopped it, for their own protection, they had a right to ask him to exit the car based on his behavior. They also had a right to stop the car for speeding without the other incident of a shot being fired, and they had the right to ask him to step out of the car for their own protection. When he stepped out, and the rifle, or the automatic falls to the ground, certainly they had a right to pat him down, and when they patted him down, they found the other concealed weapon.

They arrested him at the time, the search and narcotics, other controlled substance, which resulted in a lawful arrest. He was read his Miranda rights, indicated he understood those, and then spoke freely with the officers without ever asking for an attorney.

Rec.Vol. II at 88-89.

Following his conviction, Henning was sentenced to ten months imprisonment on the first count. As for the second and third counts, he was given consecutive sentences of ten years and five years, respectively. On the fourth count, the district court imposed a ten-month sentence to run concurrently with the sentence on the first count, for a total of fifteen years ten months imprisonment. This was to be followed by three years of supervised release. Rec.Vol. I, doc. 26.

II.

The trial court's findings of fact relative to a denial of a motion to suppress must be accepted unless they are clearly erroneous. United States v. Corral, 899 F.2d 991, 993 (10th Cir.1990). All the evidence presented at the suppression hearing and the trial must be viewed in the light most favorable to the prevailing party. United States v. Comosona, 848 F.2d 1110, 1111 (10th Cir.1988). Our review of the record of the suppression hearing convinces us that the trial judge acted appropriately in denying suppression of the physical evidence seized and any incriminating statements made in relation thereto.

In arguing that the initial stop was not supported by probable cause, Henning misstates the standard applicable to an investigative detention. All that is needed to support an investigative detention is reasonable suspicion. As we have said before: "[a]n investigative detention is justified where specific and articulable facts and rational inferences from those facts give rise to reasonable suspicion that a person has committed or is committing a crime." United States v. Espinosa, 782 F.2d 888, 890 (10th Cir.1986). The evidence here showed that Henning's vehicle emerged from the general area of an early morning gunshot heard by officers only seconds earlier, that the vehicle made a "California stop", rec. vol. II at 58, and then proceeded away from the scene in excess of the posted speed limit. There was no other traffic in the area. Trained law enforcement officers could not reasonably be expected to simply stand by and ignore the potential significance such a fact pattern presents, believing, as they did, that they themselves might have been the targets of the gunfire. After all, only a few months earlier, this area was the scene of a drug-related homicide. Rec.Vol. II at 77. Under these circumstances, the district judge properly found the initial stop justifiable.

With the vehicle stopped, Murphy's attempts at obtaining further information by asking to see Henning's driver's license were met with belligerence and abusive language. Unable to see Henning's right hand, Murphy asked Henning to step out of his vehicle. Considering the "inordinate risk confronting an officer as he approaches a person seated in an automobile[,]" the intrusion upon Henning's personal liberty at this point was de minimis. Pennsylvania v. Mimms, 434 U.S. 106, 110, 111, 98 S.Ct. 330, 333, 334, 54 L.Ed.2d 331 (1977).

While it seems to us too plain to require comment, the instant the machine gun fell to the ground as Henning exited the vehicle, police officers were justified in performing a patdown search for their own protection and acted reasonably in doing so. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Santillanes, 848 F.2d 1103, 1108 (10th Cir.1988). The presence of one firearm, especially a fully automatic weapon, certainly provides a law enforcement officer with a reasonable belief that the person being briefly detained may be carrying other deadly weapons. Santillanes, 848 F.2d at 1108.

Once the patdown disclosed the presence of a loaded, concealed weapon, there was probable cause to arrest Henning for carrying a concealed weapon in violation of N.M.Stat.Ann. Sec. 30-7-2 (1978). The fact that this charge was never listed on any police report, rec. vol. III at 107, is of no consequence since a higher charge took its place. Henning argues that he was in compliance with Sec. 30-7-2 until the time Murphy asked him to exit the vehicle. In effect, says...