U.S. v. Raymond, 96-4694

• Decision Date: 10 August 1998
• Docket Number: No. 96-4694,96-4694
• Citation: 152 F.3d 309
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jean RAYMOND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 309

152 F.3d 309

UNITED STATES of America, Plaintiff-Appellee, v. Jean RAYMOND, Defendant-Appellant.

No. 96-4694.

United States Court of Appeals, Fourth Circuit.

Argued April 9, 1998.

Decided Aug. 10, 1998.

ARGUED: Ann Briks Walsh, Assistant Federal Public Defender, Charleston, South Carolina, for Appellant. Mary Gordon Baker, First Assistant United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United States Attorney, Columbia, South Carolina, for Appellee.

Before ERVIN, Circuit Judge, BUTZNER, Senior Circuit Judge, and STAMP, Chief United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge ERVIN wrote the opinion, in which Senior Judge BUTZNER and Chief Judge STAMP joined.

OPINION

ERVIN, Circuit Judge:

Jean Raymond appeals his conviction for possession with intent to distribute crack cocaine. A South Carolina state trooper pulled over a vehicle in which Raymond was riding, ordered the car's passengers to exit the vehicle, and discovered a "cookie" of crack cocaine in Raymond's pants after a patdown search. After the district court denied Raymond's motion to suppress the evidence, Raymond pled guilty. The question before us is whether the crack evidence should be suppressed because the trooper's patdown search was unreasonable. We hold that the trooper's patdown search did not violate Raymond's rights under the Fourth Amendment and, therefore, affirm his conviction.

I.

Jean Raymond was a passenger in a car traveling north on Interstate 95 in South Carolina. Accompanying Raymond were his ex-girlfriend and her brother, Lester McMillan, who was driving. State trooper Laird stopped the red Ford Mustang for going 86 miles per hour in a 65 miles per hour zone. A second trooper, Summers, came on the scene shortly afterward as backup for Trooper Laird. Both Summers and Laird are part of the Aggressive Criminal Enforcement Unit (ACE Team), a division of the South Carolina Highway Patrol whose members are trained specifically to patrol I-95 looking for drug trafficking activity. The details of what actually occurred during this stop are not in dispute because the event was captured on video by a camera in Trooper Laird's vehicle. That video is part of the record on appeal.

Laird requested that McMillan step out of the vehicle while Laird checked his license and registration and issued a citation. McMillan was extremely nervous, talking virtually non-stop and very quickly. Because of McMillan's nervousness, Laird asked him if he had any drugs or weapons in the car. McMillan denied having those items and readily consented to let Laird search the vehicle. Once McMillan signed the consent form, Laird raised the clipboard, which was a signal to Trooper Summers that he could begin searching the car.

Summers first asked Georgetta McMillan, who was sitting in the front seat, to get out of the car. Summers spoke with Ms. McMillan for a brief time and then asked Raymond, who was sitting in the back seat, to step out of the car. Raymond got out of the two-door vehicle somewhat awkwardly, holding a styrofoam cup full of soda. Although it cannot be seen clearly on the videotape, the officers testified that Raymond clutched his stomach as he got out of the car, as if he were trying to keep something held against the front part of his body. The videotape clearly shows that Raymond awkwardly leaned against the car while talking to Trooper Summers.

Without seeking consent, Summers began a patdown search of Raymond. Summers later testified that he felt something hard and rounded under Raymond's jacket that he suspected might be a weapon. When he felt it more fully he knew it was in the shape of a pie, rather than a gun. Summers pulled the object out from under Raymond's jacket and found a crack "cookie" that was six to seven inches in diameter and about two inches thick.

Raymond was indicted by a grand jury for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a) (1994). Raymond moved to suppress the evidence obtained during the patdown search, relying on three principal arguments: (1) the troopers violated the Fourth Amendment's prohibition of unreasonable seizures by ordering Raymond to exit the car during the traffic stop; (2) the troopers had no "articulable suspicion" that Raymond might be armed in order to justify a patdown search; and, (3) when Trooper Summers pulled the crack cookie out from underneath Raymond's jacket, he exceeded the constitutionally permissible bounds of a Terry patdown. The district court rejected these arguments and denied the motion to suppress.

Raymond pled guilty to possession with intent to distribute and was sentenced to 190 months in prison. This timely appeal followed in which Raymond pursues the same arguments he advanced in the district court.

II.

The district court entered a final order in this case on August 30, 1996, and Raymond filed a timely appeal on September 3. We have jurisdiction under 28 U.S.C. § 1291.

We review legal conclusions involved in the district court's suppression determination de novo, but review factual findings underlying the legal conclusions for clear error. United States v. Rusher, 966 F.2d 868, 873 (4th Cir.1992).

III.

We ordered this case held in abeyance pending the Supreme Court's decision in Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). In Wilson, the Court held that police officers may, as a matter of course, order passengers to exit a vehicle during a routine traffic stop pending completion of the stop. The Court adopted this bright line rule after weighing the public's strong interest in officer safety against the minimal intrusion on a car passenger's privacy interests. See id. at 885-86. Raymond acknowledges in his brief that Maryland v. Wilson forecloses his argument that ordering him out of the vehicle was unlawful.

Raymond therefore relies on his remaining two arguments to challenge the legality of the search--that the troopers had no articulable suspicion that Raymond was armed before conducting the patdown, and that Trooper Summers exceeded the bounds of a patdown search in pulling out the crack cookie. We find that neither of these contentions is meritorious.

A.

Police may conduct a patdown search without a warrant if, under the totality of the circumstances, the officer has an articulable, reasonable suspicion that a person is involved in criminal activity and that he is armed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of the search is measured objectively. If a reasonably prudent person would believe that his safety, or the safety of others, is endangered, he may conduct a limited search of outer clothing to discover any weapons. Id. at 27, 88 S.Ct. 1868.

Raymond argues that the officers had made the decision to pat him down before he got out of the car and that any intervening behavior on his part was thus irrelevant to their decision. In support of this argument, Raymond points to Trooper Laird's testimony that it is the troopers' policy to pat down any passengers in a vehicle when the driver has consented...