                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 24, 2009
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 07-2230
 v.
                                                (D.C. No. 2:06-cr-02621-WJ-1)
                                                       (D. New Mexico)
 ERNESTO LAZOS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HENRY, Chief Judge, TYMKOVICH, Circuit Judge, and
LEONARD, ** District Judge.


      Ernesto Lazos pleaded guilty to possession with intent to distribute more

than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B). He conditioned his plea on the right to appeal the district court’s

denial of his motion to suppress evidence that officers discovered during a pat-

down search, subsequent to the stop of a vehicle in which he was a passenger. He


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
       The Honorable Timothy D. Leonard, United States District Judge for the
Western District of Oklahoma, sitting by designation.
argues that the officer conducting the search lacked reasonable suspicion and

therefore violated his Fourth Amendment rights. The district court found that the

officers had reasonable suspicion to pat-down Mr. Lazos because (1) a drug task

force officer had reported that he was rumored to be a drug dealer, (2) another

officer had received a report that he brandished a gun at two individuals 17 days

earlier, (3) the context of the stop was suspicious, and (4) he behaved

suspiciously when asked to exit the vehicle. The district court also initially

referenced evidence discovered after the beginning of the pat-down search to

justify the search. Despite this errant reference, we agree with the district court’s

ruling that the officers acted legally. Exercising jurisdiction under 28 U.S.C. §

1291, we affirm the decision of the district court.

                                 I. BACKGROUND

      On a cold November night at approximately 3:30 a.m., Lordsburg Police

Officer Clark Smith stopped a car that was speeding eastbound on I-10 in

Lordsburg, New Mexico. Lordsburg is a small community, and Officer Smith

recalled the driver of the vehicle as Deja-Vu Bowers, a Lordsburg resident.

Officer Smith also remembered that Ms. Bowers and fellow Lordsburg police

officer, Art De La Garza, had a child together. Officer Smith noticed that Ms.

Bowers had “glossy eyes” and “more of a pinpoint glance.” Rec. vol. III, at 19

(Tr. of Hr’g, dated May 14, 2007). Officer Smith told Ms. Bowers he would cite

her for speeding and for not having her driver’s license. Officer Smith noticed a

                                         -2-
male passenger in the front seat of the car as well as three children in the

backseat, one of whom was Officer De La Garza’s son. The male passenger in

the car was Mr. Lazos, though Officer Smith testified he did not initially identify

him.

       After Officer Smith’s brief interaction with Ms. Bowers, Officer De La

Garza as well as Corporal David Arredondo and Deputy Lars Taylor of the

Hidalgo County Sheriff’s Department arrived at the scene of the stop. Officer De

La Garza testified that Officer Smith told him that his son was in the stopped car

with Mr. Lazos and Ms. Bowers. Id. at 43. (This contradicted Officer Smith’s

testimony that he did not recognize Mr. Lazos during the initial interaction.)

Officer De La Garza recognized that he had a conflict of interest based on his

relationship to the passengers and promised to “stay out of the traffic stop as

much as possible.” Id. Officer De La Garza asked Corporal Arredondo and

Deputy Taylor to assist with the stop because of his conflict.

       The officers were aware that Ms. Bowers and Mr. Lazos could be involved

in drug trafficking. Task Force Officer Israel Barrera had previously conveyed a

rumor to Officer De La Garza that Mr. Lazos and the driver had been transporting

methamphetamine from Tucson to Lordsburg. Officer De La Garza testified that

he had heard Mr. Lazos was residing in Tucson and that he was transporting

methamphetamine in the “early morning hours” in amounts between one and six

ounces. Id. at 44. The other officers testified that they were also aware of the

                                         -3-
rumor. In the previous six to eight months, Corporal Arredondo had received

information on “at least two or three occasions” from Officer Barrera and Officer

De La Garza that Ms. Bowers and Mr. Lazos were transporting methamphetamine

between Tucson and Lordsburg. Id. at 69. The police did not have any specific

information that Mr. Lazos and the driver were transporting drugs the night of the

traffic stop.

       Based on the rumor that Mr. Lazos and Ms. Bower were involved in drug

trafficking, Corporal Arredondo went to the passenger’s window to ask Mr. Lazos

“drug interdiction questions” to try to “build more suspicion” that he was

transporting drugs. Id. at 74. As Corporal Arredondo approached, Mr. Lazos

rolled down his window. Corporal Arredondo asked Mr. Lazos to get out of the

car. Mr. Lazos explained that he was sick. Because it was a cold night, Corporal

Arredondo asked whether Mr. Lazos had a jacket. Mr. Lazos got his jacket and

exited the car. As he exited the car, he squeezed between Corporal Arredondo

and the open car door without facing Corporal Arredondo. He then put on his

jacket and walked to the front of the vehicle. Corporal Arredondo testified that

this manner of exiting the car was unusual and suggested Mr. Lazos was hiding

something.

       When Officer De La Garza saw Mr. Lazos exit the vehicle, Officer De La

Garza instructed Deputy Taylor to tell Corporal Arredondo to use caution with

Mr. Lazos. Officer De La Garza based this warning on a recent, reported

                                        -4-
allegation that Mr. Lazos had a gun. Seventeen days before the traffic stop,

Officer De La Garza’s brother, who is also a Lordsburg police officer, told

Officer De La Garza that he had received a report that Mr. Lazos and another man

brandished firearms at a juvenile and another man that day. The juvenile’s

parents had reported the incident. Though Officer De La Garza suspected Mr.

Lazos to be armed and dangerous based on this report, he did not tell his fellow

officers about the allegation, only relaying his suspicion to Corporal Arredondo

through Deputy Taylor.

      Deputy Taylor said “10-48, 10-80” to Corporal Arredondo: essentially

police code for “use caution, the person might be armed and dangerous.” Id. at

25, 80. The codes prompted Corporal Arredondo to pat Mr. Lazos down for

weapons. Corporal Arredondo ordered Mr. Lazos to assume the pat-down

position—to turn around, interlock his fingers above his head, and spread his feet.

Mr. Lazos complied, but did not spread his feet as widely as necessary. After Mr.

Lazos’s feet were spread far enough apart, Corporal Arredondo began to put his

hands on Mr. Lazos, starting at the neck and working his way down. When he

reached Mr. Lazos’s crotch, he felt a “large lump,” which later turned out to be a

bag of methamphetamine tied to the drawstring of Mr. Lazos’s pants. Id. at 83.

Upon discovery of the large lump, Mr. Lazos attempted unsuccessfully to flee.

After a brief struggle, the officers arrested Mr. Lazos.




                                         -5-
       A grand jury returned a two-count indictment against Mr. Lazos, charging

him with conspiracy to possess with intent to distribute more than 50 grams of

methamphetamine, in violation of 21 U.S.C. § 846, and possession with intent to

distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(B). Mr. Lazos moved to suppress the seized evidence on the

ground that the pat-down search violated the Fourth Amendment because the

officers lacked reasonable suspicion that he was armed and dangerous on the

night of the traffic stop.

       After conducting an evidentiary hearing, the district court denied the

motion. The court ruled that there was reasonable suspicion for the pat-down

because (1) the officers testified that they had received information from a task

force officer that Mr. Lazos was involved in drug trafficking; (2) Deputy Taylor

conveyed to Corporal Arredondo a code meaning the defendant was armed and

dangerous, because of information that “Officer De La Garza’s brother, who is

also employed as a Lordsburg police officer, learned, based on an incident

allegedly involving the defendant brandishing a weapon towards another person

approximately 17 days before November 22, 2006,” id. at 125; (3) the context of

the stop was suspicious, especially because the stop occurred around 3:30 a.m. on

a cold night with three school-aged children in the back seat; and (4) Mr. Lazos

behaved suspiciously during the stop. As to the fourth factor, the court explained

that Mr. Lazos was initially hesitant to exit the vehicle, and he was wearing baggy

                                        -6-
pants, which could have concealed a weapon. According to the court, as he

exited the car, “Mr. Lazos kept his back towards [Corporal] Arredondo in an

effort to conceal what [Corporal] Arredondo thought was something, and I believe

and will find that [Corporal] Arredondo reasonably thought the defendant might

be concealing a weapon based on the way Mr. Lazos exited the vehicle.” Id. The

court also justified the search based in part on information Corporal Arredondo

discovered during the search, that Mr. Lazos was reluctant to spread his legs and

that “the pat-down search before [Mr. Lazos] took off revealed some sort of

object in [his] pants that could have been a weapon.” Id.

      After the court denied his motion to suppress, Mr. Lazos entered a

conditional guilty plea to the second count, possession with intent to distribute

more than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B), reserving his right to appeal the ruling. The court sentenced him to ten

years in prison.

                                 II. DISCUSSION

      Mr. Lazos challenges the district court’s denial of his motion to suppress.

Though Mr. Lazos does not challenge the initial stop of the vehicle, he contends

the police lacked reasonable suspicion to remove him from his passenger seat and

conduct a pat-down search of his person. Mr. Lazos maintains that the

information from the task force officer was an inchoate rumor or hunch and

therefore should not contribute to reasonable suspicion. Information related to

                                        -7-
the gun brandishing incident, in Mr. Lazos’s view, was insufficiently

substantiated and too stale to contribute to reasonable suspicion. Mr. Lazos

argues that taken together the facts did not allow officers to draw a reasonable

inference that Mr. Lazos was armed and dangerous. Mr. Lazos also argues that

the district court erred in relying on information obtained after the stop.

      Disagreeing with Mr. Lazos, we hold that the facts in totality allowed the

officers reasonably to suspect that Mr. Lazos was armed and dangerous. Any

district court error in relying on information obtained after the pat-down started

was harmless. Officers were nonetheless justified based on the information about

Mr. Lazos drug-trafficking, the gun brandishing incident, and the additional

suspicious activity prior to the pat-down. We affirm the district court’s ruling on

his motion to suppress.

      A. Standard of Review

      The usual standard applies: motions to suppress are reviewed construing

facts favorable to the prevailing party, credibility and weight of evidence

determinations belong to the district court, and the reasonableness of a search is

reviewed de novo. United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1226

(10th Cir. 2008).

      B. Under the Fourth Amendment, a pat-down search generally requires
      reasonable suspicion that the suspect is armed and dangerous.




                                         -8-
      In accordance with the Fourth Amendment, people have the right “to be

secure in their persons, houses, papers, and effects against unreasonable searches

and seizures.” U.S. Const. amend. IV. Even so, when police officers stop a

vehicle to investigate its occupants, “[p]olice officers are authorized to take

reasonable steps necessary to secure their safety and maintain the status quo.”

United States v. Garcia, 459 F.3d 1059, 1063 (10th Cir. 2006) (quoting United

States v. Gama-Bastidas, 142 F.3d 1233, 1240 (10th Cir. 1998)). Not

surprisingly, the Supreme Court has recognized that passengers may present a risk

to officer safety equal to that of the driver. See Maryland v. Wilson, 519 U.S.

408, 413-14 (1997). Thus, “an officer making a traffic stop may order passengers

to get out of the car pending completion of the stop.” Id. at 415.

      “‘In some circumstances,’ an officer may go further and conduct a

pat-down search for weapons.” United States v. Sanchez, 519 F.3d 1208, 1216

(10th Cir.) (quoting Garcia, 459 F.3d at 1063), cert. denied, 129 S.Ct. 167

(2008). “The purpose of the limited pat-down search is not to discover evidence

of crime, but to allow the officer to pursue his investigation without fear of

violence.” Id. (quotations omitted); see also United States v. Rice, 483 F.3d 1079,

1083 (10th Cir. 2007) (“Officer safety is the primary objective justifying an

officer’s right to perform a pat-down search.”).

      Standards that the Supreme Court established in Terry v. Ohio, 392 U.S. 1

(1968), govern the application of the Fourth Amendment to pat-down searches.

                                         -9-
In Terry, the court recognized that there is no “ready test” to determine the

reasonableness of a search or seizure other than balancing the need to search or

seize with the invasion that the search or seizure entails. Id. at 21 (citation

omitted). We have held that an officer may conduct a pat-down search “if he or

she harbors an articulable and reasonable suspicion that the person is armed and

dangerous.” Sanchez, 519 F.3d at 1216 (citation omitted); see also Arizona v.

Johnson, _ _ _ S.Ct. _ _ _, 2009 WL 160434, at *6 (Jan. 26, 2009) (“[O]fficers

who conduct routine traffic stop[s] may perform a patdown of a driver and any

passengers upon reasonable suspicion that they may be armed and dangerous.”

(quotation marks and citation omitted)). “The reasonable suspicion required to

justify a pat-down search represents a minimum level of objective justification . .

. . Reasonable suspicion is based on the totality of circumstances, taking into

account an officer’s reasonable inferences based on training, experience, and

common sense.” Rice, 483 F.3d at 1083 (quotation marks and citations omitted).

“[A] court may not engage in a sort of divide and conquer analysis by evaluating

and rejecting each factor in isolation.” United States v. Cheromiah, 455 F.3d

1216, 1221 (10th Cir. 2006) (quotation marks omitted). A court must examine

whether under a totality of the circumstances, a “reasonably prudent” officer

“would be warranted in the belief that his safety . . . was in danger.” Terry, 392

U.S. at 27; see also Rice, 483 F.3d at 1083. An officer’s subjective intent or good




                                         - 10 -
faith do not affect the reasonableness of his actions. Whren v. United States, 517

U.S. 806, 813 (1996).

      C. Corporal Arredondo had reasonable suspicion to pat-down Mr. Lazos.

      In our view, information from the task force officer about drug-trafficking,

reports of gun-brandishing, and Mr. Lazos’s suspicious behavior during the traffic

stop all contributed to reasonable suspicion under a totality of the circumstances.

To the extent the district court relied on evidence collected after the search began,

any error is harmless.

             1. Rumors of drug-trafficking contributed to reasonable suspicion.

      Mr. Lazos argues that the rumors that he was a drug dealer were

unsubstantiated, unreliable, and unspecific and therefore did not establish

reasonable suspicion. He argues under Terry reasonable suspicion must be based

on objectively reasonable inferences from “known facts.” Dunaway v. New York,

442 U.S. 200, 209 n.11 (1979) (citing Terry, 392 U.S. at 21, 27). In this sense,

suspicion may not be based on “inchoate suspicions and unparticularized

hunches.” Lyons, 510 F.3d at 1237 (citations omitted). In response, the

government points to evidence in the record that the information came from a

local drug task force officer who told the officers that Ms. Bowers and Mr. Lazos

were transporting methamphetamine from Tucson to Lordsburg for sale. The

officers also knew that the deliveries occurred in the “early morning hours,” and

that their preferred route was I-10. Rec. vol. III, at 44. The officers corroborated

                                        - 11 -
these rumors when they encountered Bowers and Lazos traveling eastbound on I-

10 at 3:30 a.m. We hold that the information, though perhaps of anonymous

origin, was specific enough under the circumstances to be reliable. This

information contributed to the reasonable suspicion.

      2. The report of the gun-brandishing incident contributed to reasonable
      suspicion.

       Mr. Lazos argues that the district court improperly considered the gun-

brandishing incident because the information was stale and unsubstantiated.

Seventeen days prior to the stop, Officer De La Garza’s brother was called to a

house to investigate a report that Mr. Lazos and another man both brandished

guns at two people at the residence. The juvenile victim’s parents reported the

incident. Officer De La Garza’s brother had been to the house where the incident

allegedly took place to take the report from the victim’s parents. The

circumstances of the report suggest that officers could reasonably rely on it.

When officers know the identities of the source of the allegation, they can “hold

[them] responsible if [their] allegations turned out to be fabricated.” United

States v. Jenkins, 313 F.3d 549, 554 (10th Cir. 2002). Given that the officers

knew the identities of the source and had investigated the incident by at least

going to the house, the district court properly found that the information was

specific and reliable enough to contribute to reasonable suspicion.




                                        - 12 -
      Similarly, the information was not too stale to contribute to reasonable

suspicion. Information can be too stale if it “no longer suggests that the items

sought will be found in the place to be searched.” United States v. Snow, 919

F.2d 1458, 1459 (10th Cir. 1990). Staleness does not depend on an elapsed

number of days. Instead, the court must consider whether “the nature of the

criminal activity, the length of the activity, and the nature of the property to be

seized” or items sought suggest staleness. Id. at 1460. It is reasonable to infer

that one who brandishes a firearm will intermittently possess that firearm for

some period of time afterwards. Cf. United States v. Miles, 772 F.2d 613, 616

(10th Cir. 1985) (holding a two-and-a-half week old report of gun theft was not

too stale to contribute to probable cause that the particular guns involved in the

theft remained in a suspect’s possession). Here, Mr. Lazos allegedly brandished a

firearm 17 days earlier. Seventeen days is not too distant a point in time that an

officer would be unreasonable in concluding that Mr. Lazos might possess that

firearm and engage in similar behavior endangering the officer. We hold that the

officers reasonably relied on this information, and the district court was correct to

take it into account.

      3. The totality of the circumstances, including Mr. Lazos’s suspicious
      behavior and the context of the stop, support a finding of reasonable
      suspicion.

      Other factors contributed to reasonable suspicion. Officer Smith stopped

the vehicle for speeding on a cold November weeknight at 3:30 a.m. Three

                                         - 13 -
school-aged children were in the backseat. When Mr. Lazos exited the vehicle,

he did so in a manner that avoided facing Corporal Arredondo directly. The

district court found that the manner in which Mr. Lazos exited the car reasonably

aroused suspicion in Corporal Arredondo that Mr. Lazos was armed. Taken

together with the information about drug trafficking and the report of gun

brandishing, these factors support the district court’s finding of reasonable

suspicion. See Johnson, 2009 WL 160434, at *6 (holding officers may pat-down

passengers that they reasonably suspect to be armed and dangerous).

      A notable aspect of this stop is the association between the occupants of the

vehicle and Officer De La Garza. This association could cast doubt on the

officers’ motives and possibly the source of the information regarding Mr.

Lazos’s drug trafficking history. Nonetheless, the subjective intent of an officer

does not render lawful conduct unlawful. Whren, 517 U.S. at 813. * Furthermore,

the evidence need not be sufficient to convict Mr. Lazos; it need only be

sufficient to cast reasonable suspicion on him. See United States v. Valenzuela,

365 F.3d 892, 896 (10th Cir. 2004). Given the circumstances, the officers had

reasonable suspicion to conduct a pat-down search of Mr. Lazos out of concern

for their safety.


      *
        We also note that we are concerned with Corporal Arredondo’s testimony
that he was going to talk to Mr. Lazos in order to “build more suspicion.” Rec.
vol. III, at 74. While this is troubling, it only goes to Corporal Arredondo’s
subjective intent, not to the question of reasonable suspicion.

                                        - 14 -
      D. Reasonable suspicion exists here even if the district court erred when it
      considered events that occurred after the search began.

      The district court may have erred by listing the lump found and Mr.

Lazos’s initial failure to spread his legs as supporting reasonable suspicion for the

pat-down. Rec. vol. III, at 125; see United States v. Powell, 483 F.3d 836, 838

(D.C. Cir.) (“[A] search not justified when it is begun cannot be used to elicit

evidence with which to justify the search after the fact.” (citing United States v.

Spinner, 475 F.3d 356, 359 n.* (D.C. Cir. 2007))), cert. denied, 128 S.Ct. 646

(2007). The prosecutor attempted to correct this error:

      Mr. Saltman [prosecutor]: One thing, Your Honor. When the Court
      went through its list of things that supported reasonable suspicion, it
      identified the defendant’s failure to spread his feet and also the lump
      that Sergeant Arredondo felt. I’m afraid the Tenth Circuit might
      construe those as part of that pat down, so I would just ask the Court to
      find that the factors it identified before those two, because I think those
      two were the last two, that all the factors that the Court identified
      before those two support reasonable suspicion for the pat down.

Rec. vol. III, at 127. It is not clear from the record that the court completely

corrected its initial error. Responding to the prosecutor, the court said:

      The Court: Well, you know, I think I’ve –– I mean, if the circuit
      disagrees with what I said, then they won’t hesitate to let me know.
      Certainly, the pat-down search had not taken place when Sergeant
      Arredondo was attempting to have the defendant spread his legs, so if
      I didn’t make that clear, I’ll make that clear now.

      And then again, you might be right, but certainly, the –– you know, at
      the time the pat down occurred, my point was the, you know, the
      sergeant was justified in thinking there was a weapon. But technically,
      that’s right. The pat down had already occurred. But I’ve stated my


                                     - 15 -
      reasons that justified the Terry pat-down search, and like I said, if the
      circuit disagrees with me, they won’t hesitate to let me know.

Id. at 127-28. Thus, the district court did not clearly indicate that it only relied

on evidence prior to the search to justify the search.

      We hold that to the extent the district court relied on subsequently observed

behavior or learned facts, the error is harmless. This error is equivalent to an

error in an evidentiary ruling, because the court may have considered evidence

that it should not have. Cf. United States v. Cestnik, 36 F.3d 904, 910 (10th Cir.

1994). This type of error is harmless “unless the error had a substantial influence

on the outcome of the proceeding or leaves one in grave doubt as to whether it

had such effect.” United States v. Thompson, 287 F.3d 1244, 1253 (10th Cir.

2002); See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance

that does not affect substantial rights must be disregarded.”). As noted above,

there is ample evidence supporting reasonable suspicion without reference to Mr.

Lazos’s hesitance to spread his legs or the lump found in his pants. Therefore,

any error would not affect the outcome of the case because reasonable suspicion

nonetheless existed.




                                         - 16 -
                              III. CONCLUSION

      For the aforementioned reasons, we AFFIRM the district court’s denial of

Mr. Lazos’s motion to suppress.



                                                 Entered for the Court


                                                 Robert H. Henry
                                                 Chief Circuit Judge




                                      - 17 -
