                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            MAR 1 2004
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                            No. 03-4114
                                               (D. Ct. No. 2:02-CR-235-TC)
 KURT MERRIAM, also known as                             (D. Utah)
 Kurt Merricam,

               Defendant - Appellant.


                            ORDER AND JUDGMENT          *




Before TACHA , Chief Circuit Judge,     McKAY and McCONNELL , Circuit
Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

      Defendant-Appellant Kurt Merriam entered a conditional plea of guilty to

one count of possession of a firearm by a felon in violation of 18 U.S.C.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 922(g)(1), reserving his right to appeal the district court’s denial of his motion

to suppress evidence of the handgun found in his car. He now appeals the denial

of this motion. We take jurisdiction pursuant to 28 U.S.C. § 1291 and    AFFIRM .

                                I. INTRODUCTION

      In response to a dispute with two adolescent boys, Mr. Merriam chased the

boys, who were on bicycles, in his car. This chase led through side streets, an

apartment complex parking lot, into traffic, and eventually to a restaurant parking

lot. During this time, Mr. Merriam’s wife and young child accompanied him in

the backseat of his car. Once at the restaurant, the boys ran inside. Mr. Merriam

then exited his car and attempted to place one of the boys’ bicycles into his trunk.

      At this time, two Granite School District Police Officers exited the

restaurant and stopped Mr. Merriam. The officers, upon confronting Mr.

Merriam, noted that he “was very agitated . . . , very mad . . . [and] almost hyper .

. . .” Additionally, Mr. Merriam’s “appearance, his demeanor, and everything

indicated that he was under the influence of some type of controlled substance.”

      While questioning Mr. Merriam regarding his actions, the officers frisked

him for weapons and requested identification. Mr. Merriam informed the officers

that his identification was in the front seat of his car and moved toward the

driver’s door. One of the officers stopped Mr. Merriam, informed him that the

officer would retrieve the identification, and confirmed with Mr. Merriam that the


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identification was on the front seat of the car. The officer picked up the only item

on either front seat, a black case. Immediately upon lifting the case, a velcro flap

on its bottom opened, revealing the butt of a handgun. The officer then placed

the case back in the car and arrested Mr. Merriam for theft and possession of a

concealed weapon.

       Before the district court, Mr. Merriam filed a motion to suppress evidence

of the handgun. He alleged that the officer’s entry into the car and handling of

the black case constituted an unlawful search in violation of the Fourth

Amendment. The district court denied his motion, finding the search justified

under the officer safety exception as set forth in   Terry v. Ohio , 392 U.S. 1 (1968),

and its progeny.

                            II. STANDARD OF REVIEW

       “In reviewing the denial of a motion to suppress evidence, we accept the

factual findings of the district court, and its determination of witness credibility,

unless they are clearly erroneous.” United States v. Cervine, 347 F.3d 865, 868

(10th Cir. 2003). We consider the evidence in the light most favorable to the

finding of the district court and make the ultimate determination of

reasonableness under the Fourth Amendment de novo. Id.

                                   III. DISCUSSION

       Mr. Merriam claims that the officer’s search of the passenger compartment


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of Mr. Merriam’s car was not necessary to protect officer safety under    Michigan

v. Long , 463 U.S. 1032 (1983). In   Long , the Supreme Court held that

      the search of the passenger compartment of an automobile, limited to
      those areas in which a weapon may be placed or hidden, is
      permissible if the police officer possesses a reasonable belief based
      on specific and articulable facts which, taken together with the
      rational inferences from those facts, reasonably warrant the officers
      in believing that the suspect is dangerous and the suspect may gain
      immediate control of weapons.     Id. at 1049 (internal quotation
      omitted).

We reject Mr. Merriam’s argument, holding that a reasonable officer could have

reached the conclusion that Mr. Merriam was dangerous and may have gained

immediate control of a weapon. Similar holdings from other circuits heavily

influence our decision.

      In United States v. Coleman, 969 F.2d 126, 131-32 (5th Cir. 1992), the

defendant, a suspected drug trafficker, exited his automobile after being stopped

by police officers. Id. When asked for his identification, the defendant stated

that it was in a leather pouch in the passenger seat of his automobile. Id. Rather

than allow the defendant to get the pouch himself, the officers reached into the

automobile and retrieved the pouch. Id. The officers then opened the pouch,

finding a gun. Id. The Fifth Circuit held that, given the circumstances in that

case, officer safety concerns justified the officers’ actions in retrieving the pouch

themselves. Id.

      Similarly, in United States v. Cardona-Rivera, 904 F.2d 1149, 1154 (7th

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Cir. 1990), the Seventh Circuit held that:

       [t]he officers were entitled to demand identification from [the
       defendant], and when he told them that they would find it, in the
       form of a ticket, in his car, they were entitled to enter the car and
       look for it. It would have been reckless for them, suspecting what
       they did, to let him enter the car and rummage for the ticket, for he
       might have had a gun under the seat or in the glove compartment. So
       the action of the police in entering the car was lawful[.] Id.

        We face a situation similar to those in        Coleman and Cardona-Rivera .

Here, as in those cases, the officers had ample reason to view Mr. Merriam as a

threat to their safety, thus justifying their retrieval of Mr. Merriam’s

identification. First, the officers’ believed Mr. Merriam to be under the influence

of an intoxicant. While suspicion of alcohol or illegal drug use         on its own does

not justify a search premised on officer safety,        see United States v. Wald , 216

F.3d 1222, 1227 (10th Cir. 2000), when combined with Mr. Merriam’s other

actions, it enhances officer safety concerns,         see Long , 463 at 1050 (noting, as one

of the justifications for the weapons search, that the defendant “appeared to be

‘under the influence’ of some intoxicant”).

       Second, Mr. Merriam, based only on a verbal altercation with two boys,

chased them with his car prior to his encounter with the officers. Third, the

officers saw Mr. Merriam attempt to steal one of the boys’ bicycles and throw it

to the ground when he was unable to fit the bicycle into his trunk. Given this

volatile and potentially intoxicant-induced behavior, we find that a reasonable


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officer, evaluating all of the facts before him, would have reasonably believed

that Mr. Merriam was dangerous and that he could have gained immediate control

of a weapon, thereby justifying the officer’s retrieval of Mr. Merriam’s

identification from the passenger compartment of his car.

                               IV. CONCLUSION

      Based on the foregoing, we AFFIRM the district court’s denial of Mr.

Merriam’s motion to suppress entry of the handgun into evidence.

                                      ENTERED FOR THE COURT,



                                      Deanell Reece Tacha
                                      Chief Circuit Judge




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