United States v. Rideau

This case requires us to consider the reasonableness of a police officer’s actions in an encounter with a person he suspected was intoxicated, standing in the road, at night, in a high crime area. A panel of this court held that the officer violated the Fourth Amendment when he reached out and touched the pants pocket of the individual and discovered a gun. We granted rehearing en banc, and now hold that the officer’s actions were reasonable under the Fourth Amendment.

I.

At about 10:30 one night in July of 1989, police officer Jimmy Ellison and his partner were driving toward the intersection of Bonham Street and Martin Luther King Boulevard, a high crime area in Beaumont, Texas, where people often carried weapons and transacted drug deals on the street, and where public drunkenness was a recurrent problem. As he drove up Bonham Street, officer Ellison saw a man wearing dark clothing standing in the road. Ellison flashed his bright lights to see the man better and to encourage him to get out of the street. The man turned to step out of the roadway and stumbled as he moved toward the shoulder. Ellison suspected that he was drunk. He pulled over, got out of his car, and approached the man to investigate. Ellison asked the man his name. He seemed nervous. When the man did not answer but instead began to back away, Ellison immediately closed the gap and reached out to pat the man’s outer clothing. Ellison’s quick move was to see if he had any weapons that could harm him or his partner. The first place he touched was the man’s right front pants pocket, where he felt a firearm. He shouted “gun” to his partner and grabbed the man’s arm. Ellison and his partner then put the man up against the patrol car, removed the gun from his pocket, handcuffed him and placed him under arrest.

The man was later identified as Izeal Rideau, previously convicted of robbery and burglary in Texas state court. Rideau was charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Before his trial, he moved to suppress the gun, arguing that Ellison violated his Fourth Amendment rights when he stopped him and patted his pants pocket. The district court denied the motion to suppress, and a jury convicted Rideau. A' panel of this court reversed Rideau’s conviction on appeal, however, finding that although the officers were justified in detaining Rideau, they had failed to provide specific and articulable facts to justify a patdown, and thereby violated the Fourth Amendment’s prohibition on unreasonable searches and seizures, 949 F.2d 718. We granted rehearing en banc to consider the issue further.

II.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court explained the limits that the Fourth Amendment imposes on the conduct of police officers on the beat. First, it recognized that effective crime prevention and detection requires that officers be allowed to detain individuals briefly on the street even though there is no probable cause to arrest them. To justify such brief detentions, the officers must have a reasonable suspicion that criminal activity is afoot. The showing required to demonstrate “reasonable suspicion” is considerably less than that which is necessary to prove probable cause. In this context, the Fourth Amendment requires only some minimal level of objective justification for the officer’s actions, measured in light of the totality of the circumstances. See United States v. Sokolow, 490 U.S. 1, 6-8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989).

Second, the Court recognized that law enforcement officers need to protect themselves and the public at large from violence that may ensue in the course of such encounters. It therefore held that if police officers are justified in believing that the individuals whose suspicious behavior they are investigating at close range are armed and presently dangerous to the officers or to others, they may conduct a limited protective search for concealed weapons. Terry, 392 U.S. at 24, 88 S.Ct. at 1881; Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). An officer need not be certain that an individual is armed; the issue is whether a reasonably prudent man could believe, based on “specific and articulable facts,” that his safety or that of others is in danger. Id. 392 U.S. at 27, 88 S.Ct. at 1883; Maryland v. Buie, 494 U.S. 325, 332, 110 S.Ct. 1093, 1097, 108 L.Ed.2d 276 (1990).

In assessing the reasonableness of an officer’s actions, “it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”. Terry, 392 U.S. at 22, 88 S.Ct. at 1880 (citations omitted). The officer’s state of mind, or his stated justification for his actions, is not the focus of our inquiry. See Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2782-83, 86 L.Ed.2d 370 (1985); Scott v. United States, 436 U.S. 128, 138-39, 98 S.Ct. 1717, 1723-24, 56 L.Ed.2d 168 (1978); United States v. Colin, 928 F.2d 676, 678 (5th Cir.1991). As long as all the facts and circumstances, viewed objectively, support the officer’s decisions, the Fourth Amendment is satisfied. We must attempt to put ourselves in the shoes of a reasonable police officer as he or she approaches a given situation and assesses the likelihood of danger in a particular context.

There is no serious question that Ellison had reasonable suspicion to detain Rideau. Rideau had been standing in the roadway at night in a high crime area, where public drunkenness was common, and stumbled out of the road only when Ellison flashed his lights at him. Ellison had reason to believe that Rideau was drunk. Since public intoxication is a criminal offense under Texas law, see Tex. Penal Code § 42.08 (Vernon’s 1991), the officers had adequate grounds for a stop. In any event, Terry recognizes that “[encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime.” 392 U.S. at 13, 88 S.Ct. at 1876. Police have long served the public welfare by removing intoxicated people from the public streets, where they pose a hazard to themselves and others. See Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968); see also Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973) (describing “community caretaking functions” that police officers serve). Officer Ellison was warranted in stopping to investigate the situation and check on the man’s condition.

We also find that Ellison’s decision to reach out and pat Rideau’s pocket rested on specific and articulable facts. A reasonably prudent man in Ellison’s situation could have believed that his safety and that of his partner was in danger. Ellison already had some reason to believe that Ri-deau might be intoxicated or perhaps injured. When approached and asked his name, Rideau did not respond but appeared nervous and, critically, backed away. It was not unreasonable under the circumstances for Ellison to have feared that Ri-deau was moving back to give himself time and space to draw a weapon. It was not then unreasonable for Ellison simply to touch Rideau’s front pants pocket to determine whether he had a gun.

Rideau’s specific moves took place after a detention, at night, in a high crime area where the carrying of weapons is common. These are articulable facts upon which a police officer may legitimately rely in justifying his actions. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Laing, 889 F.2d 281, 286 (D.C.Cir.1989); United States v. Trullo, 809 F.2d 108, 111 (1st Cir.1987). Stripped from their context, the backward steps offer no threat, but to a police officer in Ellison’s situation, they become very significant in the matrix of the general facts. Stated abstractly, specific actions may be construed as more or less hostile depending on the setting in which they occur. Of course, that an individual is in a high crime neighborhood at night is not in and of itself enough to support an officer’s decision to stop or frisk him. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). But when someone engages in suspicious activity in a high crime area, where weapons and violence abound, police officers must be particularly cautious in approaching and questioning him. Trained, experienced officers like Ellison may perceive danger where an untrained observer would not. Id. at 52 n. 2, 99 S.Ct. at 2641 n. 2. We are unwilling to tie the hands of police officers operating in potentially dangerous situations by precluding them from taking reasonable steps to ensure their safety when they have legitimately detained an individual.

We do not suggest that the police have a right to frisk anyone on the street at night in a high crime neighborhood. There was no such rousting here. First, as we have observed, the detention was proper, beyond cavil. That is, only persons meeting the requirements of a Terry stop can be detained, and this detention did not rest solely on Rideau’s presence in a bad part of town. Second, after Rideau was lawfully detained, he responded to the request of the officer by backing away — a move which in this specific context was reasonably seen as threatening. Ellison could reasonably believe that Rideau was gaining room to use a weapon. Rideau had no legitimate right to be free of the minor invasion of his liberty that came in response to this behavior. On these facts, there is no basis for concluding that the officer’s concerns for his safety were unreasonable. We reject the suggestion that Rideau’s movement could not reasonably be seen as threatening because it at best presented a risk of flight. The suggestion ironically discloses the emptiness of Rideau’s asserted liberty interest. The officer could have grabbed Rideau to keep him from fleeing. It is perverse to suggest that he could not touch him to protect himself against the drawing of a weapon.

The scope of Ellison’s “frisk” of Rideau is a relevant factor for us to consider. “The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977) (quoting Terry); see also Michigan v. Long, 463 U.S. 1032, 1045-46, 103 S.Ct. 3469, 3479, 77 L.Ed.2d 1201 (1983). Reaching out to touch Ri-deau’s pocket was a limited and tailored response to Ellison’s fears for his safety, and served to validate his concerns. Its very spontaneity equally validates the objective reasonableness of the practical balance of safety and liberty. This was not the intrusive exploration of a detainee’s body that the Court envisioned in Terry. Rideau was not put up against a wall or across a car and subjected to a shake down. As we have observed, Ellison could have grabbed Rideau in a more invasive manner to prevent him from fleeing. Thus the minimal intrusion involved in this encounter is another factor supporting officer Ellison’s decision.

The dissent accuses us of taking “significant liberties with both the facts and the law.” It is settled that in reviewing this denial of a motion to suppress, we view the evidence taken both at the suppression hearing and at trial in the light most favorable to the ruling. United States v. Simmons, 918 F.2d 476, 479 (5th Cir.1990). The dissent turns the standard upside down, searching for any inference contrary to the district court’s ruling, proceeding as if this ruling, by a veteran of thirty-six years on the trial bench, did not exist. At trial, Rideau told a very different story about the street encounter, and the district judge simply did not believe him. He denied walking away from the police officers, denied tripping or stumbling, and even denied that the gun was found in the frisk. His story was that the police officers found a cocaine pipe in his sock and while on the “... way from putting me in the back of the vehicle ... that’s when I throwed the gun on the ground.” The dissent refers to our statement that Rideau “began to back away” as “at best misleading.” The arresting officer used these exact words in his testimony, and we are required to give credence to them. Curiously, Judge Smith, in writing the panel opinion described the facts as follows: “Ellison got out of the car and asked Rideau to identify himself. Ri-deau began to back away.”

We do not depart from the rule that police officers must have specific and articulable facts indicating that their safety is in danger to justify a patdown. Nor do we assert that a lawful detention is a license to frisk.. We simply look to the reality that the setting in which the police officer acts may reasonably and significantly affect his decisional calculus. A reasonably prudent man in officer Ellison’s position could believe that he was in danger as he approached Rideau. The minimally intrusive action that he took to ensure his safety and that of his partner was not a violation of Rideau’s constitutional rights. The Fourth Amendment does not require police to allow a suspect to draw first. This is East Texas, but it is 1992.

AFFIRMED.

. Defendant testified that the encounter occurred between 3:30 and 4:30 a.m. The arresting officer placed the time at 10:30 p.m.

. The Court described a frisk in Terry as follows: " ‘The officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet,’" 392 U.S. at 17 n. 13, 88 S.Ct. at 1877 n. 13 (citation omitted).