                                                                  [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                                                                    U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                        No. 04-11220                      APRIL 18, 2005
                                                                       THOMAS K. KAHN
                                                                             CLERK
                          D.C. Docket No. 03-00357-CR-J-NE

UNITED STATES OF AMERICA,

                                                                     Plaintiff-Appellee,

                                            versus

JANICE JOSEPHINE ROGERS,

                                                                     Defendant-Appellant.


                      Appeal from the United States District Court
                         for the Northern District of Alabama


                                      (April 18, 2005)


Before BLACK and WILSON, Circuit Judges, and NANGLE*, Senior District Judge.

PER CURIAM:




       *
          The Honorable John F. Nangle, Senior United States District Judge for the Eastern
District of Missouri, sitting by designation.
                                  I. Introduction

      Defendant Janice Rogers, convicted of possessing with the intent to

distribute in excess of five grams of methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B), appeals the district court’s denial of her motion to

suppress a search of her person. We reverse.

                               II. Standard of Review

      This court reviews questions of law regarding a district court’s denial of a

motion to suppress de novo. United States v. Rhind, 289 F.3d 690, 693 (11th Cir.

2002). Findings of fact are reviewed for clear error. United States v. Gil, 204 F.3d

1347, 1350 (11th Cir. 2000).

                                     III. Facts

      On August 18, 2000, a search warrant was issued for the residence of Hal

Atchley. (RII-45 at 4) Prior to conducting the search, the officers were advised that

Atchley had a history of violence and resisting arrest. Id. at 4-5. The officers were

also told that Atchley’s girlfriend, ostensibly defendant Rogers, might be present at

the scene of the search. (RII-45 at 4)

      Upon arriving at Atchley’s trailer, the officers knocked but received no

response. Id. at 6. The officers then entered the trailer and encountered Rogers, who

was in the bedroom. Id. Rogers was immediately ordered down at gunpoint and

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handcuffed for the officers’ safety. Id.

      Officer Terry McCrackin observed a “large bulge” in defendant’s pocket and

proceeded to reach directly into defendant’s pockets and remove the bulge along with

the other contents of defendant’s pockets, laying the items on the bed.              Id.

McCrackin testified that he had not formed any opinion as to what the bulge was,

that he had no idea whether it was a gun or knife or posed any threat to him, but

thought it was a “possibility.” Id. at 11-12. He also testified, however, that he had

been involved in over one hundred searches of methamphetamine labs and had

learned to anticipate a number of risks, including booby traps, chemicals, and

weapons. Id. at 9-10.

      The items removed from defendant’s pockets included two individually

wrapped packages in black electrical tape, comparable in size to a cigarette lighter but

slightly bigger in width, containing pills and a powdery substance. Id. at 9. The

substances were later tested and found to be methamphetamine. Id. The officers did

not find a methamphetamine lab on the premises, but they did find a burn pile with

fuel cans and tubes behind the trailer. (RIII-45 at 91-92)

      Rogers was indicted on August 4, 2003 (RI-1) and filed her motion to suppress

on August 14, 2003. (RI-7) The district court initially declined to permit the use of

the evidence under a Terry-stop theory. (RI-45 at 21-22) See Terry v. Ohio, 392 U.S.

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1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The prosecutor suggested, however, that

the evidence was also permissibly seized under United States v. Young, 909 F.2d 442

(11th Cir. 1990), and the district court eventually allowed the evidence, with the

following discussion:

             Well, I'll tell you it's a tough question because Ybarra is not right
      on point and Young is not right on point. And Gray, the United States
      v. Gray, which the Eleventh Circuit cites in Young, is not right on point.
             I'm going to deny the motion based on everything I've heard
      today. All right. I'll - based on the reading of these three cases together,
      I'm going to deny the motion.
             The Eleventh Circuit is pretty - although in the Young case they
      ended up talking about exigent circumstances, and I do not find that
      here, they still refer to the dissenting opinion of Ybarra and refer to
      Gray, which dealt with searching a jacket. So I'm going to deny the
      motion.

(RI-45 at 24)
                                    IV. Discussion

      In Terry v. Ohio, the Supreme Court held permissible under the Fourth

Amendment an officer’s patdown of persons he had reasonable articulable suspicion

were armed and posed a threat to the officer. 392 U.S. 1, 29-30, 88 S. Ct. 1868, 1884

(1968). The district court in this case made an express finding that the government’s

evidence did not establish the basis for a Terry patdown, stating that the officer

“didn’t frisk her until after she was handcuffed .. . .I haven’t heard of any perceivable

danger from the government’s proof.” (RI-45 at 21) The court then decided to



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“scratch Terry ... [as] not applicable.” Id. at 22. The district court’s factual findings

were not clear error. Accordingly, the search of Rogers was not permissible under

Terry.

         Appellee’s reliance on Young is unfounded as well. In Young, this Court

permitted the search of a purse due to exigent circumstances, which are not present

in this case. See Young, 909 F.2d at 443-44. As for the relationship test discussed in

dicta in Young, although we may choose to apply that test in a future case, the facts

of this case do not lend themselves to its application because the search here was of

a person rather than of the person’s effects. See id. at 444-45.

                                    V. Conclusion

         Thus, we REVERSE the district court's denial of Rogers’ Motion to Suppress

and REMAND the case to the district court for further proceedings consistent with

this opinion.




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