U.S. v. Wangler, 91-1800

• Citation: 987 F.2d 228
• Decision Date: 18 March 1993
• Docket Number: No. 91-1800,91-1800
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Dale WANGLER, Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 228

987 F.2d 228

UNITED STATES of America, Plaintiff-Appellee, v. Larry Dale WANGLER, Defendant-Appellant.

No. 91-1800

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 18, 1993.

F. Clinton Broden, Marsha Rutenbar, Asst. Federal Public Defenders, Ira Kirkendoll, Federal Public Defender, Dallas, TX, for defendant-appellant.

Rose L. Romero, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, TX, for U.S.

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

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

I.

Police stopped Larry Dale Wangler in his car suspecting that he was carrying cocaine. Noticing a bulge in his front pocket, an officer frisked him and found a .22 caliber revolver. The police then arrested Wangler for carrying a concealed weapon and conducted an inventory search of his car. The search uncovered a firearm silencer, a quarter pound of cocaine, and documents evidencing drug trafficking.

Wangler was indicted on three counts: (1) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a); (2) unlawfully using and carrying a firearm during and in relation to a drug trafficking crime contrary to 18 U.S.C. § 924(c)(1); and (3) possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). Wangler moved to suppress this evidence. The district court denied the motion after a hearing. Wangler pleaded guilty to Count 2, reserving his right to appeal the motion to suppress. The district court sentenced Wangler to 60 months in prison, a three-year term of supervised release, and a mandatory assessment of $50.00.

Wangler appeals, arguing that the evidence was seized in violation of the Fourth Amendment and that the court lacked authority to sentence him to a term of supervised release. We affirm.

II.

The testimony at the hearing on the motion to suppress showed the following. In February 1990, the Navarro County Sheriff's Department raided a pit bulldog fight at the residence of Larry Meador. Officers arrested 47 people. During the raid, several people fled. The deputies found five guns and some narcotics abandoned on the ground. Two of the guns were within 30 feet of a Dodge Ram Charger registered to Wangler's wife.

One month after the raid, the Sheriff's Department received information from a confidential informant that Wangler was delivering substantial amounts of cocaine to Larry Meador in Navarro County on a regular stop. This informant had provided information about other criminal activities involving other individuals in the past, and the information was independently verified. The Sheriff's Department had received information from numerous sources over the last four years that Larry Meador was in the drug business. For the next two months, the informant continued to give information about Wangler, Meador, and others.

In the meantime, a second confidential informant began to tell deputies about Wangler's drug activities. This informant was an independent source, and like the first informant, had provided reliable information in the past that lead to the arrest and prosecution of other individuals. The second informant stated that Wangler was making a regular stop at Meador's house, and this informant provided information as to when Wangler was in possession of cocaine and when he was collecting money.

On October 22, 1990, Deputy Spencer received a telephone call from the second confidential informant and was told that Wangler was currently in route to Larry's One-Stop, a convenience store operated by Meador, with a load of cocaine. The informant further stated that Wangler would be driving a 1987 Dodge pickup, Texas 313-5LL. After Spencer alerted other deputies and asked their assistance, he drove to Larry's One-Stop.

When he arrived and parked at a nearby vacant station, he observed Wangler pumping gas into the Dodge pickup. Moments later, a Toyota pickup arrived. Spencer could not see who was driving the Toyota, but he believed it to be Meador's truck, based on his knowledge of the type of car Meador drove. ¹ Wangler walked up to the Toyota and spoke briefly to the driver, then walked back to his truck and drove away.

Spencer followed in his unmarked car with other officers close behind. Spencer believed that Wangler still had the cocaine and hoped to follow Wangler to the drop point. The deputies saw Wangler exit highway 31 onto I-45, then take the first exit after traveling only about a mile and reenter I-45 in the opposite direction. To Spencer, Wangler appeared to be making a "heat run," an attempt to determine whether anyone was following him. At this point, the deputies decided to stop Wangler.

After pulling him over, Spencer asked Wangler to get out and go to the back of the pickup. Spencer twice asked for Wangler's consent to search his truck, and Wangler refused both requests. Sergeant Mike Cox then walked up and observed what appeared to him to be a bulge in Wangler's right front pants pocket. Cox asked Spencer if he had patted Wangler down. When Spencer said he had not, Cox patted the bulge and felt a hard object. He then reached into Wangler's pocket and pulled out the .22 caliber revolver. After arresting Wangler, the officers performed an inventory search of the car and discovered, among other things, the cocaine.

III.

Wangler argues that both the stop and the frisk were illegal. An investigatory stop is proper if based on reasonable suspicion "that criminal activity is afoot." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). "Reasonable suspicion" is considerably less than that which is required to show probable cause. United States v. Rideau, 969 F.2d 1572, 1574 (5th Cir.1992) (en banc). To satisfy the Fourth Amendment, there must be some "minimal level of objective justification for the officer's actions, measured in light of the totality of the circumstances." Id. (citing United States v. Sokolow, 490 U.S. 1, 6-8, 109 S.Ct. 1581, 1584-86, 104 L.Ed.2d 1 (1989)). Moreover, reasonable suspicion need not be based only on personal observation. If based on other information, the question becomes whether that information possesses "an indicia of reliability." Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972).

We find that the information the deputies relied on possessed sufficient indicia of reliability and gave them...