U.S. v. Roggeman

• Decision Date: 01 February 2002
• Docket Number: No. 01-1738.,01-1738.
• Citation: 279 F.3d 573
• Parties: UNITED STATES of America, Appellant, v. Gregory ROGGERMAN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

279 F.3d 573

UNITED STATES of America, Appellant, v. Gregory ROGGERMAN, Appellee.

No. 01-1738.

United States Court of Appeals, Eighth Circuit.

Submitted: October 2, 2001.

Filed: February 01, 2002.

Rehearing and Rehearing En Banc Denied: March 29, 2002.^*

C.J. Williams, Asst. U.S. Atty., Cedar Rapids, IA, argued, for appellant.

Russell Schroeder, Jr., Charles City, IA, argued, for appellee.

Before: BOWMAN, HEANEY, and BYE, Circuit Judges.

BOWMAN, Circuit Judge.

The United States appeals the District Court's grant of defendant Gregory Roggeman's motion to suppress all evidence seized from his person, pickup truck, and residence. A pat-down search of a bulge in Roggeman's right-front pants pocket during a routine traffic stop led to a state trooper's initial seizure of marijuana and drug paraphernalia. The government argues that the trooper's pat-down was justified by reasonable suspicion that Roggeman was presently armed and dangerous and that the District Court thus erred in concluding that the pat-down violated the Fourth Amendment. We agree and therefore reverse and remand for further proceedings.

I.

Just before midnight on September 7, 2000, Gregory Roggeman was driving his pickup truck near his home in Mason City, Iowa. Iowa State Trooper Ryan Moore pulled up behind Roggeman's truck at a stop sign. When Roggeman accelerated away from the stop sign, Trooper Moore noticed the truck making unusually loud exhaust noises. He pulled Roggeman over to investigate a possible muffler violation.¹ Roggeman was the only person in the truck; Trooper Moore was alone as well. The trooper walked up to the truck's driver's-side door and asked Roggeman through his open window for his driver's license. The trooper informed Roggeman that he had been stopped for having a faulty muffler. Roggeman admitted that the truck's muffler had a hole in it and told the trooper that he was heading home from a shop where he had been working on the truck.

Trooper Moore told Roggeman that he intended to issue him a warning for his muffler violation. He then requested that Roggeman "come back and have a seat in the patrol car." Tr. of Videotape. Trooper Moore testified at the suppression hearing that he makes it part of his "normal routine" to ask motorists to whom he intends to issue a citation or warning to come back to his patrol car. Tr. at 12. Almost immediately after the trooper asked Roggeman to exit his truck, the trooper started asking Roggeman whether he had any weapons. Roggeman said he did not.

The parties dispute, and the record does not make clear, the precise sequence of events from the time Trooper Moore asked Roggeman to come back to his patrol car to the time the trooper first patted Roggeman down. Significant disagreement also exists as to the number of pat-downs to which Trooper Moore subjected Roggeman.² Trooper Moore's testimony, however was unequivocal and uncontradicted that his observation of the bulge in Roggeman's right-front pants pocket took place before he performed the pat-down. Moreover, the District Court adopted the magistrate judge's finding that the trooper "did, in fact, see the bulge before he patted Roggeman's pocket." United States v. Roggeman, No. CR00-3046-MWB, at 12 (N.D.Iowa Jan. 30, 2001) (Report and Recommendation).

Most of the light on the scene came from the patrol car's headlights and spotlight, but the trooper also had a flashlight in his hand. Trooper Moore ran the beam of the flashlight over the door of the truck as Roggeman began opening it. Although the District Court and the magistrate judge do not mention it, it is readily apparent from the videotape that the trooper then ran his flashlight's beam over the front of Roggeman's torso and legs as he stepped from the truck. As Roggeman set foot on the ground and turned to walk toward the patrol car, the trooper shone the flashlight directly on both of Roggeman's front pants pockets.

The exact chronology again is unclear, but within several seconds after Roggeman opened his truck's door, Trooper Moore saw the bulge in Roggeman's right-front pants pocket. Trooper Moore testified that during his initial pat-down of the pocket he immediately recognized that the cause of the bulge was a plastic or "cellophane" bag (which, when removed from Roggeman's pocket, was found to contain the marijuana) and a marijuana pipe. Specifically, approximately 4.7 grams of marijuana, a marijuana pipe, and a lighter were fetched from Roggeman's pocket.³

After the trooper seized the contents of Roggeman's pocket, Roggeman and the trooper sat in the patrol car while the trooper wrote citations for the marijuana and marijuana pipe. By then, the trooper apparently had decided not to arrest Roggeman but only to conduct a complete pat-down search of Roggeman's person and then to search his truck before sending him on his way. While conducting these additional searches, Trooper Moore found more marijuana, a white powdery substance that he concluded was methamphetamine, and a bottle of inositol powder, an agent commonly used for diluting or "cutting" methamphetamine. He then arrested Roggeman. When officers carried out a search warrant at Roggeman's residence the next day, they found more marijuana, more drug paraphernalia, and an SKS assault rifle.

On October 26, 2000, a federal grand jury returned an indictment against Roggeman charging him with two counts: possessing methamphetamine with the intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(C) (1994 & Supp. V 1999), and being a convicted felon and unlawful user of a controlled substance in possession of a firearm, see 18 U.S.C. § 922(g)(1), (g)(3) (1994). After conducting an evidentiary hearing on Roggeman's motion to suppress, a magistrate judge filed a report recommending that the District Court grant the motion. Roggeman did not contest the legitimacy of the initial traffic stop, but the magistrate judge concluded that the state trooper's pat-down search of Roggeman for weapons after the initial stop violated his Fourth Amendment rights. The government filed several objections to the factual findings and legal conclusions supporting the magistrate judge's report and recommendation.

After conducting a de novo review of the record, the District Court adopted the report and recommendation with little modification. The court concluded that the pat-down search violated the Fourth Amendment because, when the trooper patted Roggeman down, he did not have a reasonable, articulable suspicion that Roggeman might be armed and dangerous. The court ordered that the marijuana and marijuana pipe the trooper seized during the pat-down search be suppressed. It also ordered the suppression of all evidence seized as a result of searches subsequent to the pat-down as the "fruit of the poisonous tree." We reverse because we conclude that the pat-down was justified by reasonable suspicion.

II.

This appeal turns upon whether Trooper Moore's pat-down of Roggeman's right-front pants pocket was justified by reasonable suspicion.⁴ The determination of whether a protective pat-down search for weapons was supported by reasonable suspicion is a mixed question of law and fact, which we review de novo. See Ornelas v. United States, 517 U.S. 690, 696, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We review the material findings of historical fact for clear error and "give due weight to inferences drawn from those facts" by the district court. Id. at 699, 116 S.Ct. 1657.

The Fourth Amendment forbids searches and seizures that are unreasonable, Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), and "generally requires police to secure a warrant before conducting a search." Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). A law-enforcement officer is nevertheless justified in making a limited, warrantless search for the protection of himself or others nearby in order to discover weapons if he has a reasonable, articulable suspicion that the person may be armed and presently dangerous. Terry, 392 U.S. at 30, 88 S.Ct. 1868. Because the "sole justification" for such a search is the protection of the officer and others, its scope must be confined to a search reasonably designed to discover concealed weapons. Id. at 29, 88 S.Ct. 1868; see also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ("So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose."). Courts are required to apply an objective test to resolve the question whether reasonable, articulable suspicion justified a protective search. Terry, 392 U.S. at 22, 88 S.Ct. 1868 (explaining that a test based on an officer's subjective, goodfaith belief that the person is armed is an insufficient constitutional safeguard, for it would subjugate Fourth Amendment protections to the good faith of law-enforcement officers). Under this objective standard, the "officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27, 88 S.Ct. 1868.

The level of suspicion necessary to constitute reasonable suspicion that will, in turn, justify a protective pat-down search "is considerably less than proof of wrongdoing by a preponderance of the evidence" and "is obviously less demanding than that for probable cause." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Nevertheless, the Fourth Amendment requires "some minimal level of objective justification." Id.; accord Terry, 392 U.S. at 27, 88 S.Ct. 1868 ("[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or `hunch,' but to the specific...