     Case: 09-10647     Document: 00511145109          Page: 1    Date Filed: 06/17/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 17, 2010

                                       No. 09-10647                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee
v.

TIMOTHY WAYNE CRAIG,

                                                   Defendant–Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CR-57-Y




Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Appellant Timothy Wayne Craig was convicted in federal district court of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and was
sentenced to 188 months’ imprisonment. On appeal, Craig argues that the
district court erred by denying his motion to suppress the firearm. The arresting
officer, Officer Snyder, had probable cause to arrest Craig and did not act




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-10647

unreasonably in effectuating the arrest. Accordingly, we AFFIRM the district
court’s ruling.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Officer Snyder initiated a traffic stop on a car with an expired registration.
The car pulled into a parking lot and stopped. Officer Snyder parked his patrol
vehicle and approached the car on foot. Craig, the driver and sole occupant of
the car, exited the car and stood between Officer Snyder and the car’s open door.
As Officer Snyder walked toward Craig, he saw what appeared to be the barrel
and front sight of a handgun sticking out from under the driver’s seat. While
asking for Craig’s license and insurance, Officer Snyder confirmed that what he
saw was a handgun. Officer Snyder believed Craig was moving around in an
effort to put himself between Officer Snyder and the gun.
      Craig began to reach into his car.       Officer Snyder drew his weapon,
pointing it at Craig’s head. After cursing at Craig and threatening to “blow
[Craig’s] head off,” Officer Snyder pulled Craig away from the car. Officer
Snyder handcuffed Craig and secured Craig in the patrol car. Officer Snyder
retrieved the gun and apologized for using profanity, explaining that Craig’s
movement toward the gun put him in fear for his safety.
      Craig was charged with being a felon in possession of a firearm. Before
trial, Craig moved to suppress the gun. The district court denied the motion,
explaining that the gun was in plain view and that the video from Officer
Snyder’s patrol car showed that Officer Snyder was lawfully outside of Craig’s
car when he saw the gun. The district court concluded that upon seeing the gun,
Officer Snyder had probable cause to arrest Craig. After a jury trial, Craig was
found guilty. Craig timely appealed.
           II. JURISDICTION AND STANDARD OF REVIEW
      This is a direct appeal from a judgment in a criminal case, and we have
jurisdiction under 28 U.S.C. § 1291. On review of a denial of a motion to

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suppress, we review questions of law de novo and findings of fact for clear error.
See United States v. Mata, 517 F.3d 279, 284 (5th Cir. 2008). We may affirm on
any basis established by the record.         See Bramblett v. Comm’r of Internal
Revenue, 960 F.2d 526, 530 (5th Cir. 1992).
                                 III. ANALYSIS
A.      Whether Officer Snyder Had Probable Cause to Arrest Craig
        “The Supreme Court has defined probable cause as the ‘facts and
circumstances within the officer’s knowledge that are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit an
offense.’”   Piazza v. Mayne, 217 F.3d 239, 245–46 (5th Cir. 2000) (quoting
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). Under the statute at issue in
this case, “[a] person commits an offense if he intentionally, knowingly, or
recklessly carries on or about his person a handgun, illegal knife, or club.” T EX.
P ENAL C ODE A NN. § 46.02 (2003). Among the affirmative defenses to section
46.02 is a defense for a person who is “traveling.” Id. § 46.15. A person is
“presumed to be traveling” if the person is, among other criteria, “in a private
motor vehicle” and “not carrying a handgun in plain view.” Id.
        Craig argues that Officer Snyder did not have probable cause to arrest him
because facts known to Officer Snyder at the time of the arrest established that
Craig was traveling. The parties disagree as to whether an arresting officer
making a probable cause determination must consider facts establishing an
affirmative defense. We need not resolve this dispute. Even assuming an officer
must consider facts establishing an affirmative defense, the facts known to
Officer Snyder did not establish an affirmative defense in this case.
        The Government argues that the traveling defense does not apply because
Craig was carrying the gun in plain view. Craig responds that he never actually
carried the gun in plain view: When he was in the car, he was carrying the gun,

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but it was hidden beneath his legs. When he got out of the car, the gun might
have been in plain view, but he was no longer carrying it, since he had exited the
car and did not take it with him.
       Generally, we rely on the commonly understood meaning of a legal term
unless there is reason to believe the term was intended to have a different
meaning. See, e.g., United States v. Strakoff, 719 F.2d 1307, 1309 (5th Cir. 1983)
(“Absent any legislative or judicial precedent to the contrary, there is no reason
not to adopt [a] logical, accepted interpretation for [a] statutory term of art.”).
In our constitutional jurisprudence, we have stated that an item is in plain view,
at the very least, if it is visible to an officer without the need to manipulate other
objects in order to see it. See, e.g., United States v. Virgil, 444 F.3d 447, 452 (5th
Cir. 2006) (finding that a gun was in plain view because “the testimony . . .
indicated that the police saw the gun . . . without even moving the door”). There
is no question that Officer Snyder saw the gun without having to manipulate
other objects. Therefore, the gun was in plain view.
       Next, we turn to Craig’s argument that although the gun might have been
in plain view, he was no longer carrying it at that time because he had gotten
out of the car. This argument does not persuade us. Whether or not Craig was
carrying the gun when he got out of the car, Officer Snyder certainly had
probable cause to believe that Craig was carrying the gun: the gun was in the
car, and it is undisputed that Craig was driving and was the only person in the
car.
       Accordingly, we find that the gun was in plain view, the traveling
exception does not apply to Craig, and Officer Snyder had probable cause to
believe that Craig was violating section 46.02.




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B.      Whether Officer Snyder Acted Unreasonably in Effectuating the
        Arrest
        Craig argues that Officer Snyder acted unreasonably in effectuating the
arrest; accordingly, even if probable cause existed for the arrest, the arrest
nonetheless violated Craig’s Fourth Amendment rights. The Supreme Court has
stated that “in principle every Fourth Amendment case, since it turns upon a
‘reasonableness’ determination, involves a balancing of all relevant factors.
[Usually], the result of that balancing is not in doubt where the search or seizure
is based upon probable cause.” Whren v. United States, 517 U.S. 806, 817 (1996).
When probable cause exists, “the only cases in which [the Supreme Court has]
found it necessary actually to perform the ‘balancing’ analysis involved searches
or seizures conducted in an extraordinary manner, unusually harmful to an
individual’s privacy or even physical interests . . . .” Id. at 818. These cases
include seizure by means of deadly force, Tennessee v. Garner, 471 U.S. 1 (1985),
unannounced entry into a home, Wilson v. Arkansas, 514 U.S. 927 (1995),
warrantless entry into a home, Welsh v. Wisconsin, 466 U.S. 740 (1984), and
physical penetration of a suspect’s body, Winston v. Lee, 470 U.S. 753 (1985).
        Craig argues that the instant case involved sufficiently extraordinary
circumstances because Officer Snyder pointed his weapon at Craig and
threatened to “blow [Craig’s] head off.” Craig also points to Officer Snyder’s
liberal use of curse words, arguing that this language—although perhaps not
extraordinary per se—indicates that Officer Snyder’s overall attitude toward
Craig was extremely inappropriate, especially considering that this was a simple
traffic stop. We disagree with Craig’s characterization of the arrest. Officer
Snyder was dealing with a potentially deadly situation in which he had just
spotted a gun in plain view. Craig had already acted in an unusual manner,
getting out of the car as Officer Snyder approached. Officer Snyder reasonably
believed Craig was trying to position himself between Officer Snyder and the


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gun, and Officer Snyder reasonably believed that when Craig was reaching back
into the car, Craig might have been reaching for the gun. Officer Snyder’s
response to the situation as he perceived it did not rise to the level of
extraordinary circumstances—such as deadly force or bodily penetration—that
would require this Court to conduct an actual balancing analysis. Accordingly,
we find that Officer Snyder’s method of effectuating the arrest did not violate
Craig’s Fourth Amendment rights.
                             IV. CONCLUSION
      Officer Snyder had probable cause to arrest Craig and did not act
unreasonably in effectuating the arrest. Accordingly, we AFFIRM the district
court’s ruling.




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