United States v. Banshee , 85 F.3d 571 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-8492.
UNITED STATES of America, Plaintiff-Appellee,
v.
Mary Lee BANSHEE, a/k/a Mary Lee Johnson, Defendant-Appellant.
June 18, 1996.
Appeal from the United States District Court for the Southern
District of Georgia. (No. CR294-52-1), Anthony A. Alaimo, Judge.
Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,
and MILLS*, District Judge.
OPINION
RICHARD MILLS, District Judge:
Motion to suppress.
Denied below.
Appealed.
We affirm.
I. FACTS
Following a jury trial in which she was convicted of
Possession with Intent to Distribute Cocaine (21 U.S.C. §
841(a)(1)) and violating the Travel Act (18 U.S.C. § 1952(a)(3),
Mary Lee Banshee was sentenced to 97 months imprisonment. The only
issue on appeal is whether the district court properly denied a
motion to suppress cocaine found during a search. Although for
different reasons than those employed by the district court, we
conclude the search was lawful.
*
Honorable Richard Mills, U.S. District Judge for the
Central District of Illinois, sitting by designation.
At approximately 5:00 a.m. on July 31, 1994, Mary Lee Banshee
and Lee Ann Johnson were passengers in a rented car being driven by
Kenneth Parker northbound on I-95 in Camden County, Georgia.
Because the car was being operated with the high-beam lights on
when there was traffic in the southbound lane, Deputy Sheriff
William Todd stopped the vehicle. The traffic stop was both video
and audio taped.1
When he stopped the car, Deputy Todd approached and told
Parker to get out of the car. Once Parker got out, Deputy Todd
asked him for his license. Parker failed to present a license but
said he lived in South Carolina and had a license from the District
of Columbia. Parker also told Deputy Todd that he and his
passengers were enroute from a vacation in Miami, Florida and that
his girl friend, Banshee, had rented the car.
While a second officer instituted a computer records check,
Deputy Todd approached Banshee who was in the passenger seat. In
response to Deputy Todd's questions, Banshee stated that a friend
had rented the car and that they were returning from Orlando,
Florida where they had gone to Disney World. Banshee indicated
that Orlando was as far south as the trio had traveled.
The computer check revealed that Parker did not have a license
from either South Carolina or from the District of
Columbia—although the problem may have been with Parker's first
name. Nevertheless, Deputy Todd only issued a warning ticket,
instructed Parker that someone else would have to drive, and told
1
We commend the use of video tape by police officers. It is
a great benefit to the community, the courts, and the police.
Parker he was free to go.
Before Parker could leave, however, Deputy Todd asked Parker
for consent to search the car. Parker gave his consent.
Thereafter, Parker was quickly frisked and Deputy Todd approached
the passengers. Johnson exited the vehicle first. When she did,
Deputy Todd asked her if she had any weapons. Johnson replied that
she did not. Deputy Todd then directed her, without conducting a
frisk, to wait behind the car with Parker.
Deputy Todd then told Banshee to get out of the car. When
Banshee got out, Deputy Todd noticed a bulge in her midsection and
asked her if she had any weapons or "anything" on her person.
Banshee replied that she did not. Deputy Todd then asked her to
"turn around and let me see." When she did, Deputy Todd asked:
"you ain't got nothing stuck here?" In response, Banshee stated
that she was pregnant.
Deputy Todd then remarked to the other officer: "if they got
anything she got it on her—she's saying she's pregnant. She, She
got it on her ... I can see it, she got it on her. Go ahead start
searching [the car]." Thereafter, without frisking Banshee, Deputy
Todd directed her to the rear of the rented vehicle and Deputy Todd
got in his car.
Once in his car, Deputy Todd got on the radio and asked for a
female officer to conduct a search. In so doing, he stated: "man,
I think I got another one here, uh, concealed though to where I'm
not going to be able to get to it without a female." No female
officers, however, were available. Deputy Todd then exited his
vehicle and performed a pat-down of Banshee's mid-section. After
doing so, he directed Parker and Johnson to get on the ground and
he handcuffed Banshee.
Once she was handcuffed, Deputy Todd asked Banshee what she
was concealing. Banshee replied that it was something her boy
friend had given her. Deputy Todd then removed one of Banshee's
hands from the handcuffs and told her to put the package that she
was concealing on the hood of the police car. Deputy Todd then
again handcuffed Banshee and proceeded to open the package which
was wrapped in tape. The package field-tested positive for cocaine
and was eventually found to contain 728.7 grams of cocaine.
II. DISTRICT COURT FINDINGS
After Banshee timely moved to suppress the cocaine, a hearing
was held before United States Magistrate Judge James E. Graham.
Following the hearing, Magistrate Judge Graham issued a very
detailed 22-page recommendation to the district court. The basis
of the recommendation was that: (1) the stop was not pretextual;
(2) the scope of the stop was permissible; (3) consent to search
the car was given; (4) the pat-down search of Banshee was proper
under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968); (5) Deputy Todd was entitled to seize the cocaine package
because he believed the package was contraband; (6) the detention
was proper under Terry; and (7) the search of the package was
lawful because when Deputy Todd opened the package there was
probable cause to arrest Banshee. The district court accepted the
recommendation and denied the motion to suppress.
On appeal, Banshee contends that the stop was pretextual and
that Deputy Todd lacked reasonable suspicion much less probable
cause to detain, frisk, and search her. Alternatively, she argues
that even if Deputy Todd had a reasonable suspicion, the stop
elevated into an unlawful arrest, and the search exceeded anything
permitted under Terry. Finally, she maintains that the warrantless
search of the package was impermissible.
III. ANALYSIS
We find that the lower court's findings on the issues of the
alleged pretextual stop and the search of the cocaine package,
after it was on the hood of the car, are fully supported by the
record and the law. Accordingly, those two issues do not need
additional discussion. The Terry related issues, however, warrant
discussion.
According to the Supreme Court, an officer can conduct a
protective pat-down for weapons if "a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
that of others was in danger." Terry v. Ohio, 392 U.S. at 27, 88
S.Ct. at 1883. Analysis of whether a Terry frisk was permissible
is objective. Magistrate Judge Graham found that "Deputy Todd
acted reasonably in performing pat-down searches of the
defendants."
After carefully reviewing the video tape of the arrest, we
find that the lower court's finding was clearly erroneous. The
sequence of events simply does not support a finding that when the
pat-down search of Banshee occurred, Deputy Todd was conducting a
search for weapons to protect himself. See United States v.
Tharpe, 536 F.2d 1098, 1101 (5th Cir.1976) (noting that the
objective Terry standard may not be invoked to condone sham or
pretextual searches), rev'd, United States v. Causey, 834 F.2d 1179
(1987) (en banc).2
Under the facts of this case, if Deputy Todd was conducting
a Terry search, the search would have occurred immediately after
Banshee got out of the car.3 Looked at another way, the only piece
of information Deputy Todd had when he conducted the pat-down
search that he did not know about when Banshee initially got out of
the car was that a female officer was not available. The
availability of a female officer, however, is not related to the
question of whether Banshee was armed and dangerous. Moreover,
because the sole purpose of a Terry frisk is officer protection,
there is absolutely no prohibition on police officers conducting
Terry pat-down searches on suspects of a different gender.
Accordingly, we conclude that the only reasonable
interpretation of what occurred is that when Deputy Todd conducted
the pat-down frisk he was not doing it because he had a reasonable
suspicion that Banshee was armed and dangerous, but because he had
reason to believe Banshee was concealing contraband—most likely
drugs—and there was no female officer available to conduct the
search. See Causey, 834 F.2d at 1181 (explaining that "what
2
We have adopted former Fifth Circuit case law as precedent.
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981 (en
banc). The subsequent reversal of Tharpe by the Fifth Circuit in
Causey, however, is not binding. Moreover, it is questionable
whether Causey actually overruled Tharpe. See Causey, 834 F.2d
at 1182 n. 6 (noting that "the holding in Tharpe actually
supports a broad use of an objective standard").
3
We do not suggest that in all situations a Terry search
must be conducted immediately. Often, a police officer will not
immediately have sufficient reason to believe that a suspect may
be armed and dangerous.
signifies is the officer's actions, objectively viewed in light of
the circumstances confronting him."). Thus, we conclude that the
lower court's finding was in error.
Our conclusion that the pat-down search was not conducted
pursuant to Terry, however, does not end the inquiry. "When the
police possess probable cause to conduct a search, but because of
exigent circumstances, do not have time to obtain a warrant, they
may search without a warrant." United States v. Juarez, 573 F.2d
267, 274 (5th Cir.), cert. denied, 439 U.S. 915, 99 S. Ct. 289, 58
L. Ed. 2d 262 (1978). The rule applies equally to searches of person
and property. See Schmerber v. California, 384 U.S. 757, 86 S. Ct.
1826, 16 L. Ed. 2d 908 (1966) (applying rule to a person).
In this case, based upon the inconsistent statements and the
bulge in Banshee's mid-section, we find that Deputy Todd had
probable cause to believe a search would uncover evidence of a
crime. See United States v. Thornton, 733 F.2d 121, 127-28
(D.C.Cir.1984) (discussing what constitutes probable cause in this
context). We also find that there were exigent circumstances
excusing the need for a warrant. See Juarez, 573 F.2d at 275
(finding exigent circumstances when a detained suspect might have
left with the contraband if police would have waited to secure a
warrant).
Specifically, Deputy Todd had the option of either letting
Banshee go or detaining her for a prolonged period of time while he
secured a warrant. Accordingly, under the circumstances, the frisk
was much less an intrusion than a prolonged detention. See WAYNE
R. LaFAVE, SEARCH AND SEIZURE § 6.5(c) (1994) ("[w]here, for
example, only a very limited search into a specific location is
needed, it may be that an immediate but warrantless search of that
place is so clearly a lesser intrusion that it may be undertaken in
lieu of impoundment of the premises until a warrant can be
obtained.").
Accordingly, we hold that Deputy Todd had probable cause to
conduct a search and that exigent circumstances excused the need to
get a warrant.
We also conclude that the search could be considered a lawful
search incident to an arrest. Specifically, we find that the bulge
in Banshee's mid-section, coupled with the inconsistent statements,
were sufficient grounds for Deputy Todd to conclude that Banshee
was committing a crime. See United States v. Tomaszewski, 833 F.2d
1532, 1535 (11th Cir.1987) (finding probable cause to arrest based
upon bulge in defendant's clothing); United States v. Elsoffer,
671 F.2d 1294, 1299 (11th Cir.1982) (same). Moreover, because
there was probable cause for the arrest before the search and the
arrest immediately followed the challenged search, the fact that
Banshee was not under arrest at the time of the search does not
render the search incident to arrest doctrine inapplicable.
Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 2564, 65
L. Ed. 2d 633 (1980); Thornton, 733 F.2d at 128 n 9.
IV. CONCLUSION
Although we conclude that the district court erred when it
accepted the Magistrate's recommendation that the search was proper
under Terry, we find that the search was indeed lawful for the
reasons stated, and therefore affirm the denial of the motion to
suppress.
AFFIRMED.