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United States v. Newberry

filed: March 8, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES WALTER NEWBERRY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. DC No. CR-90-0774-HLH-1. Harry L. Hupp, District Judge, Presiding

Before: Canby, Boochever, and Norris, Circuit Judges.

MEMORANDUM

James Newberry appeals from the district court's denial of his motion to suppress evidence. During a routine traffic stop of Newberry and his wife Karen on September 29, 1990, California Highway Patrol Officer Frederick Laurn discovered a loaded .22 magnum semi-automatic pistol and several baggies of marijuana in a briefcase in the back hatch of the car. That discovery created probable cause for a search of the entire vehicle, which revealed a bag containing 1.5 kilograms of methamphetamine and resulted in the Newberrys' arrest. The critical inquiry on this appeal is whether Officer Laurn's actions is discovering the contents of the briefcase were proper.

The briefcase contains a fiberboard "desk" partition that divides the briefcase into two sections. Although Officer Laurn testified at the suppression hearing that he immediately saw a gun in the bottom section when Newberry opened the briefcase (allegedly to look for identification), the district court concluded that Officer Laurn must have reached over and lifted the desk partition himself. The court held that this action was "justified by concern for officer safety." R.T. 2/26/91 at 136.

At the suppression hearing, the district court reviewed conflicting declarations and heard conflicting testimony, and made findings of fact to support its ruling. We must accept these findings unless they are clearly erroneous. United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992). The ultimate Conclusion of the lawfulness of a search, however, is reviewed de novo. See United States v. Homick, 964 F.2d 899, 903 (9th Cir. 1992); United States v. Litteral, 910 F.2d 547, 553 (9th Cir. 1990).

Terry v. Ohio, 392 U.S. 1 (1968), held that

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, . . . he is entitled for the protection of himself . . . to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id. at 30. For such a protective search to be justified,

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. And in 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 reasonable inferences which he is entitled to draw from the facts in light of his experience.

Id. at 27 (citations and footnote omitted). Thus, at minimum, an officer "must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous." Sibron v. New York, 392 U.S. 40, 64 (1968). The fact that an individual is validly stopped based on a reasonable suspicion of criminal activity is not sufficient to justify a concomitant search. United States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988); United States v. Post, 607 F.2d 847, 851 (9th Cir. 1979).

Although Terry stated an objective test of whether a "reasonably prudent man" would be concerned for his safety, 392 U.S. at 27; accord United States v. Garcia, 909 F.2d 389, 391 (9th Cir. 1990); Thomas, 863 F.2d at 628, other Supreme Court cases have apparently added a subjective requirement. See Michigan v. Long, 463 U.S. 1032, 1047 (1983) (Terry search allowed "when the officer has a reasonable belief" that suspect is armed and presently dangerous); id. at 1052 n.16 ("the officer must have an articulable suspicion that the suspect is potentially dangerous"); Ybarra v. Illinois, 444 U.S. 85, 93 (1979) (frisk permitted when officer "reasonably believes or suspects" detainee to be armed). We have reconciled these cases by requiring the officer to have a subjective belief that is objectively reasonable. United States v. Prim, 698 F.2d 972, 975 (9th Cir. 1983); accord United States v. Lott, 870 F.2d 778, 783-84 (1st Cir. 1989).

The experienced trial Judge showed great patience in his conduct of the suppression hearing and sincerely endeavored to resolve what appeared to him to be factual inconsistencies. We conclude, however, that the district court erred in its implied finding that Officer Laurn had the requisite subjective belief that James and Karen Newberry were armed and dangerous.*fn1 Indeed, this Conclusion is virtually compelled by Officer Laurn's admirably candid testimony at the suppression hearing that before discovering the gun he had no reason to believe the Newberrys were armed and had no concern for his safety beyond the general suspicion he possesses every time he pulls over a car. R.T. 2/25/91 at 48-50; R.T. 2/26/91 at 7. A general concern for safety, without specific and articulable facts supporting a reasonable suspicion that a particular suspect is armed and dangerous, has never been held sufficient to justify a Terry search. Were we to accept the district court's findings, we would therefore be required to reverse. We are troubled, however, by several aspects of those findings.

First, the district court concluded that Officer Laurn did not see the gun until he lifted the desk partition because "the [desk] does not come up when the briefcase is opened by itself." R.T. 2/26/91 at 133. Similarly, the district court examined a photograph of Officer Laurn holding up the desk to display the briefcase's contents and concluded that the briefcase "couldn't look that way [when it was opened] until the [desk] was lifted." Id. at 136. These Conclusions fail to acknowledge the district court's own finding that the underside of the desk partition may be snapped to a strap on the interior of the briefcase lid. R.T. 2/26/91 at 62. If the strap is attached to the desk, the desk comes up with the lid when the briefcase is opened. Thus the district court's finding that the desk cannot possibly come up with the briefcase lid is clearly erroneous, and the finding that the desk was down when Newberry opened the briefcase is questionable absent any indication in the record that the court considered the possibility that the desk was attached to the briefcase lid.

Moreover, the lack of a clear finding that the desk was not snapped to the briefcase at the time the gun was discovered leads us to believe that the district court may have mistakenly thought that the interior strap was broken. Our concern is based on Newberry's testimony at the suppression hearing concerning a "flap" connecting the desk to the briefcase that had been "gone for years." Id. at 75. The transcript of Newberry's testimony regarding the briefcase does not make clear to which "flap" he was referring. In her brief before this court, however, the Assistant United States Attorney who prosecuted the case and argued at the suppression hearing expresses the mistaken belief "that the snap on the desk was broken, so that when the briefcase was opened, the desk stayed down." Appellee's Brief at 17. Our own examination of the briefcase has revealed that the snap on the desk and the ...


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