United States v. Lesean Hardy , 375 F. App'x 658 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2610
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Lesean D. Hardy, also known as *
Leasean Smith, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 13, 2010
Filed: May 13, 2010
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Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Lesean D. Hardy conditionally pleaded guilty to being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). He appeals the district court’s1 order
denying his motion to suppress evidence. We affirm.
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa, adopting the report and recommendation of the
Honorable Jon S. Scoles, United States Magistrate Judge for the Northern District of
Iowa.
I.
On the afternoon of November 12, 2008, two Cedar Rapids Police Department
patrol officers responded to a radio call regarding a silver minivan that had just been
involved in a narcotics transaction. The officers initiated a traffic stop and approached
the minivan, observing that there were two occupants in the front seat and another
individual in the back seat, later identified as Hardy. When questioned by the officers,
the front passenger could not produce identification and he gave inconsistent
information about his age. The officers then asked the front passenger to accompany
them to their patrol car, while Hardy and the driver remained in the minivan. As the
officers continued talking with the front passenger, they observed Hardy moving from
the back seat to the front seat.
Several minutes later, an officer in the canine unit arrived to perform a dog sniff
on the minivan. The canine officer asked the driver and Hardy to step out of the
automobile, and he attempted to perform pat-down searches on both occupants after
they exited. Before Hardy could be patted down, however, he took off running with
the officers in close pursuit. When the officers caught up to Hardy several blocks
away, he was holding a gun in his right hand.
II.
Hardy’s motion to suppress argued that the attempted pat-down search was not
justified. On an appeal from a denial of a motion to suppress, we review the district
court’s factual findings for clear error and its legal conclusions de novo. United States
v. Lopez-Vargas, 457 F.3d 828, 830 (8th Cir. 2006). “A police officer may search an
individual’s outer clothing to discover weapons when the officer reasonably believes
that the individual may be armed and dangerous.” United States v. Ward, 23 F.3d
1303, 1306 (8th Cir. 1994) (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)). We view the
facts supporting a protective frisk under an objective standard, looking at the totality
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of the circumstances known to the officer at the time of the search. United States v.
Ellis, 501 F.3d 958, 961 (8th Cir. 2007).
Several facts objectively justified the initial safety-related search in this case.
First, the officers suspected that at least one of the minivan’s occupants had just
committed a narcotics crime. Based on their experience, the officers reasonably could
have concluded that those who commit narcotics crimes might also be carrying
weapons. See Ward, 23 F.3d at 1306 (stating that the analysis must give due weight
to reasonable inferences that law enforcement officers may draw based on their
experience); see also United States v. Robinson, 119 F.3d 663, 667 (8th Cir. 1997) (“It
is reasonable for an officer to believe that an individual may be armed and dangerous
when that individual is suspected of being involved in a drug transaction because
‘weapons and violence are frequently associated with drug transactions.’”) (citing
United States v. Brown, 913 F.2d 570, 572 (8th Cir. 1990)). Second, the presence of
three individuals in the minivan likely made it more difficult for the officers to
maintain control of the situation, thus heightening the risk to officer safety. See
Maryland v. Wilson, 519 U.S. 408, 414 (1997) (“[D]anger to an officer from a traffic
stop is likely to be greater when there are passengers in addition to the driver in the
stopped car.”). Third, Hardy was observed moving around inside the vehicle, which
one of the officers testified was very unusual. In these circumstances, the officers had
an objectively reasonable basis for believing that Hardy may have been armed and
dangerous, and thus the pat-down was warranted.
Moreover, even if the pat-down search had been improper, suppression of the
evidence would not be required because the gun was not obtained as a result of the
attempted search. The officers located the weapon only after Hardy fled from the
officers, pulled the gun from his pocket, and held it within view. Although Hardy
argues that his flight was a predictable result of the search, he has failed to explain
how the officers’ conduct could have possibly caused him to display a weapon he was
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trying to hide. We therefore conclude that the district court did not err in denying
Hardy’s motion to suppress evidence of the firearm.
The judgment is affirmed.
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