United States v. Arnold, Terrell ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1376
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRELL ARNOLD, JR.,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Indiana, Hammond Division.
No. 2:02-CR-66—Rudy Lozano, Judge.
____________
ARGUED MARCH 2, 2004—DECIDED OCTOBER 4, 2004
PUBLISHED NOVEMBER 2, 2004*
____________
Before CUDAHY, RIPPLE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Terrell Arnold, Jr., pleaded guilty
to possession of a firearm by a felon under 18 U.S.C.
§ 922(g)(1) pursuant to a conditional plea agreement. Under
the plea agreement, he reserved his right to challenge on
appeal the district court’s denial of his motion to suppress
*
This decision was initially released on October 4, 2004, as an
unpublished order. By the court’s own motion, it is being reissued
as a published opinion.
2 No. 03-1376
under the Fourth Amendment evidence seized during the
search of his car. Arnold contends that the police officer at
the scene, Officer Shawn Ford, exceeded the scope of a
protective search when after a traffic stop he pulled down
the armrest in the back seat, which opened into the trunk,
and found a loaded revolver. Arnold also argues that the
officer’s actions cannot alternatively be characterized as
part of a valid inventory search. Because we conclude that
the search did not exceed the bounds of a protective search,
we affirm the district court’s judgment.
I
Officer Ford of the Hammond Police Department testified
at the suppression hearing that he was patrolling Michigan
Street on the night of January 25, 2002, when he spotted
Arnold driving a four-door Pontiac Bonneville with a burned-
out headlight. Arnold was the sole occupant of the vehicle.
Noticing the burned-out headlight, Officer Ford followed the
Bonneville. After observing the Bonneville swerve off and
back onto the road, Officer Ford initiated a traffic stop.
Officer Ford put on his siren and signaled for the
Bonneville to pull over to the side of the road, and Arnold
immediately obeyed. Officer Ford then pulled his car behind
Arnold’s, illuminating the inside of the Bonneville with his
spotlight. After Officer Ford observed Arnold turn around
to look back at him, Arnold then wormed his way between
the passenger and the driver’s seats into the back seat.
Officer Ford testified that Arnold appeared to have been
either retrieving or placing something in the back seat, al-
though Officer Ford could not see below Arnold’s shoulders.
Arnold then returned to the driver’s seat.
After observing Arnold’s unusual action, Officer Ford left
his patrol car and approached the Bonneville. Officer Ford
asked Arnold to step out of the car. He also asked whether
Arnold had a gun; Arnold said no. Officer Ford conducted a
No. 03-1376 3
pat-down because he feared that Arnold had retrieved a
weapon from the back seat, but the pat-down produced no
weapon. Officer Ford then placed Arnold in the back seat of
the patrol car so that he could ensure that the traffic stop
was completed safely. He noticed that Arnold appeared very
nervous and was sweating “a little bit.” On the other hand,
Arnold was cooperative and was neither belligerent nor
smelled of alcohol. A driver’s license check revealed that
Arnold had only a learner’s permit and needed to be ac-
companied by a licensed driver. In Indiana an officer may
write a citation for driving on a learner’s permit without a
licensed driver and request that the vehicle be towed, which
Officer Ford decided to do.
Before towing the vehicle, Officer Ford searched it. He
offered two reasons for the search: first, he needed to ensure
that there were no weapons in the open spaces of the car
that could be stolen or would endanger the towing person-
nel, and second, Arnold’s unusual actions gave him “a lot of
concern for what might be in the vehicle.”
Beginning his search in the back seat, Officer Ford ob-
served that the car contained a middle armrest. From ex-
perience, the officer knew that the area behind the armrest
opened directly into the trunk. Officer Ford pulled the arm-
rest down and discovered a loaded handgun that was visible
in the immediate space of the trunk. Officer Ford announced
his discovery to another officer, who had arrived on the scene
to assist. After asking whether Arnold had a permit for the
gun and receiving a negative response, Officer Ford arrested
him for carrying a handgun without a permit.
Charged with possession of a firearm by a felon, Arnold
responded with a motion to suppress the handgun. He ar-
gued that the officer did not have reasonable suspicion to
search the car, and in any event he exceeded the scope of a
protective search. Furthermore, Arnold contended that the
officer did not conduct a permissible inventory search
4 No. 03-1376
because the initial decision to impound the vehicle was not
pursuant to any established policy or routine. The district
court held an evidentiary hearing and determined that the
search had been permissible under the Fourth Amendment.
The court reasoned that the totality of the circumstances—
Arnold’s unusual action of clambering into the back seat,
the reasonable inference that Arnold may have been hiding
or retrieving a weapon, and his nervous demeanor—pro-
vided the officer with reasonable suspicion to search the
car. Relying upon United States v. Veras, 51 F.3d 1365 (7th
Cir. 1995), which involved a search incident to arrest of a
built-in back seat compartment, the court held that Arnold’s
movement of reaching into the back seat justified the scope
of the officer’s search. Hence, the court did not reach the
alternative “inventory search” argument.
II
On appeal Arnold first argues that the search exceeded
the scope of a protective search under Michigan v. Long,
463 U.S. 1032 (1983), although he concedes that Officer
Ford had reasonable suspicion for conducting some kind of
search. According to Arnold, Long flatly prohibits searches
of trunks; therefore, Officer Ford, by accessing the trunk
from behind the armrest in the back seat of the passenger
compartment, performed an illegal search. Arnold also as-
serts that the district court erroneously relied upon Veras
in denying his motion to suppress because, he claims, a ve-
hicle search incident to arrest is broader than a search
based on reasonable suspicion.
An officer with a reasonable suspicion that a motorist may
be armed and may be able to gain immediate control of
weapons may conduct a protective search of the passenger
compartment of the vehicle without a warrant. Long, 463
U.S. at 1049; United States v. Brown, 133 F.3d 993, 998 (7th
Cir. 1998). Such a search must be confined to “those areas
No. 03-1376 5
in which a weapon may be placed or hidden.” Long, 463
U.S. at 1049; see United States v. Mancillas, 183 F.3d 682,
699 (7th Cir. 1999).
The Supreme Court in Long defined the scope of a permis-
sible protective search by borrowing the standard for
vehicle searches incident to arrest established in New York
v. Belton, 453 U.S. 454 (1981). See Long, 463 U.S. at 1049 &
n.14. In Belton the Court held that an officer may conduct
a vehicle search incident to arrest limited to the passenger
compartment both to protect the officer and to preserve
evidence. Belton, 453 U.S. at 460; see also Thornton v. United
States, 124 S. Ct. 2127, 2131 (2004). Thus, the difference be-
tween a search under Belton and one under Long is simply
the rationale for conducting it, not its physical boundaries.
Long, 463 U.S. at 1049 & n.14; cf. United States v. Cervantes,
19 F.3d 1151, 1153 (7th Cir. 1994) (citing both Long and
Belton for proposition that investigatory search entitles offi-
cer to look into accessible, closed compartments of a car for
weapons). Although the general search area covered by
Belton and Long is the same, the limited rationale for per-
mitting a search under Long—safety concerns—constrains
an officer to search only the locations that may contain a
weapon and to which the motorist may have access. United
States v. Holifield, 956 F.2d 665, 669 (7th Cir. 1992). Hence,
assuming that an officer limits his search to those areas, the
boundaries of the passenger compartment under Belton
apply equally to the scope of a search under Long.
Although no court seems to have addressed the specific
problem of a trunk that is readily accessible from inside the
passenger compartment, we see no reason to distinguish this
accessible area from any other. We have already held that
a secret compartment built into the back seat of a vehicle is
within the scope of a search incident to arrest, Veras, 51 F.3d
at 1372, and that locked glove compartments are within the
boundaries of searches under Long, Holifield, 956 F.2d at
668-69. Other circuits have held that a search under Belton
6 No. 03-1376
encompasses cargo spaces of sports utility vehicles,
hatchbacks, and station wagons. See United States v. Oguin-
Rivera, 168 F.3d 1203, 1205-07 (10th Cir. 1999) (covered cargo
area of SUV was accessible from inside vehicle and was thus
part of passenger compartment); United States v. Caldwell,
97 F.3d 1063, 1067 (8th Cir. 1996) (hatchback area is search-
able as part of passenger compartment); United States v.
Doward, 41 F.3d 789, 793-94 (1st Cir. 1994) (same); United
States v. Pino, 855 F.2d 357, 364 (6th Cir. 1988) (cargo area
of mid-sized station wagon was within passenger compart-
ment); United States v. Russell, 670 F.2d 323, 327 (D.C. Cir.
1982) (hatchback area is within “lunging distance”). In anal-
yzing whether these searches were permissible, these courts
considered whether an item located in the area in question
was generally, “even if not inevitably,” within reach. Belton,
453 U.S. at 460; see Doward, 41 F.3d at 794.
In this case Officer Ford had reasonable suspicion that
Arnold may have retrieved or concealed a weapon based on
his unusual movements. See United States v. Fryer, 974 F.2d
813, 819 (7th Cir. 1992) (reasonable suspicion to search
area that was focus of defendant’s furtive gesture); United
States v. Nash, 876 F.2d 1359, 1361 (7th Cir. 1989). Con-
sistent with this belief, Officer Ford properly focused his
search on the location into which Arnold had climbed—the
back seat—and the areas immediately accessible to Arnold
while he was there. See United States v. Evans, 994 F.2d
317, 322 (7th Cir. 1993) (search under Long).
That the officer reached into the trunk while he was in-
side the car, by pulling down the armrest in the back seat,
does not mean that his search automatically exceeded the
boundaries delineated in Long. An officer armed solely with
reasonable suspicion may not search the trunk of a vehicle
when the motorist would not have been able to reach a
weapon located there, Valance v. Wisel, 110 F.3d 1269, 1278
(7th Cir. 1997). Here, however, the area behind the armrest
that opened into the trunk was generally accessible from the
No. 03-1376 7
passenger compartment, see Holifield, 956 F.2d at 669
(searches under Long should be directed to locations that
may contain a weapon and “to which the suspect may have
access”). Just as if the gun had been behind the back seat
in a hatchback or in the covered cargo area of an SUV,
Arnold could have gained immediate access to it through
the armrest, even though the weapon was technically located
in the usually protected realm of the trunk. Taking into ac-
count the purpose of the officer’s search, it seems likely that
in no more time than it would take a motorist to retrieve a
weapon from a locked glove compartment, Arnold could
have reached the handgun. Officer Ford’s search of the trunk
area behind the armrest did not exceed the permissible
scope of a search under Long.
Arnold also argues that Officer Ford was not justified in
conducting the search because the officer had no intention
of allowing Arnold to reenter the vehicle with only a learner’s
permit. Arnold fails to acknowledge, however, that Officer
Ford may have permitted him to gather items from the car
before leaving the scene even if the officer would not have
permitted him to drive the vehicle. This argument also over-
looks the possibility that Arnold, who sat unhandcuffed in
the back of the patrol car, could have broken away from
Officer Ford’s control. See Long, 463 U.S. at 1051; Holifield,
956 F.2d at 669.
Under the circumstances, we have no occasion to address
the government’s plain view argument, which it failed to
present before the district court and thus waived. Similarly,
because we have found this search justified under Long, we
have no need to address the government’s effort to justify
the search as a valid inventory search.
The judgment of the district court is AFFIRMED.
8 No. 03-1376
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-2-04