                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-1706
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Luis F. Martinez-Cortes,                 *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: January 13, 2009
                                  Filed: May 22, 2009
                                   ___________

Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

       Luis Martinez-Cortes entered a conditional plea of guilty to possession with
intent to distribute more than fifty grams of methamphetamine. He appeals the district
court’s1 denial of his motion to suppress, arguing that police officers violated his
Fourth Amendment rights when they stopped and searched the vehicle that Martinez-
Cortes was backing down the driveway of a residence as police arrived to execute a
search warrant. Reviewing the court’s factual findings for clear error and ultimate


      1
        The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska, adopting the Report and Recommendation of the Honorable F.A.
Gossett, United States Magistrate Judge for the District of Nebraska.
Fourth Amendment questions de novo, we affirm. See United States v. Olson, 262
F.3d 795, 798 (8th Cir. 2001) (standard of review).

                                   I. Background

      On October 3, 2006, Sheriff’s Investigator Joe Benak obtained a warrant to
search 7510 Trumble Avenue, a single family dwelling in Omaha, for controlled
substances, drug paraphernalia, and evidence of drug crimes. The warrant expressly
included “the person of William J. Baber . . . any vehicles registered to William J.
Baber . . . and/or any curtilage located at 7510 Trumble Avenue.” The warrant
authorized a no-knock entry because “the presence of a rifle at the residence could
present danger” to the executing officers.

       At 7:45 p.m., officers proceeded to 7510 Trumble Avenue in three vehicles to
execute the warrant. As they turned onto Trumble, they saw a tan Ford Excursion
backing down the driveway of the target residence, a vehicle they had seen at the
residence during prior surveillance. A police van parked in front of 7510, discharging
officers who proceeded to the house to execute the warrant. Meanwhile, Corporal
Fred Bishop stopped his police cruiser in front of the Excursion, blocking its ability
to leave, and trained his emergency lights and spotlight on the vehicle. Deputy Sheriff
Brian Jarrett parked the third (unmarked) police vehicle directly behind the cruiser.
In the spotlight, the officers could see two individuals they could not identify in the
front seats of the Excursion.

       Jarrett, Benak, and Bishop approached the Excursion, weapons drawn, and
ordered the occupants to put the vehicle in park and show their hands. As the officers
drew near, they saw that the front seat occupants were Hispanic males, not William
Baber, who is white, but they could not see if anyone was in the rear of the Excursion.
Deputy Jarrett observed both occupants moving their arms and the driver, later
identified as Martinez-Cortes, looking towards the middle console and moving as if

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to shove something between the center console and his right leg. After several more
demands, Martinez-Cortes put the Excursion in park and both occupants showed their
hands. The officers ordered them out of the Excursion and told them to lie on the
ground, where they were handcuffed and asked for identification. Martinez-Cortes
provided a Nebraska identification card. The passenger had no identification but gave
his name and date of birth.

       Deputy Jarrett next called for a routine check for wants and warrants. Jarrett
arrested Martinez-Cortes when the dispatcher advised that he had an outstanding
misdemeanor warrant and his driving privileges had been revoked and suspended. A
search of the Excursion then yielded a small baggy containing two grams of
methamphetamine near the center console, a baggy containing 5.1 grams of
methamphetamine in a zipped compartment near the driver’s side back door, and three
baggies containing 78.6 grams of methamphetamine inside a blue-gray console on the
floor behind the driver’s seat. This prosecution followed.

                                    II. Discussion

      Martinez-Cortes argues that the initial stop of the Excursion was unlawful
because he committed no traffic violation and the officers had no reasonable suspicion
criminal activity was afoot, that his detention was unreasonably extended for a records
check, and therefore that his subsequent arrest and search of the vehicle were
unlawful. Like the district court, we disagree.

       Police officers must have a constitutionally reasonable basis for stopping a
motor vehicle. The critical question is, “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 v. Ohio, 392 U.S. 1, 21-22 (1968)
(quotations omitted). In making reasonable-suspicion determinations, reviewing
courts “must look at the ‘totality of the circumstances’ of each case to see whether the

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detaining officer has a ‘particularized and objective basis’ for suspecting legal
wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002). Here, we conclude
that police officers arriving to execute the warrant to search 7510 Trumble Avenue
and William Baber had three valid reasons to stop and at least briefly detain the
departing Excursion and its occupants.

        First, the search warrant authorized the officers to search, not only the
residence, but also vehicles registered to Baber and vehicles located within the
property’s curtilage. When they arrived to execute the warrant, the officers saw a
vehicle previously seen at that location backing down the driveway. It had just left
the curtilage, where it could be searched. It might be registered to Baber, in which
case it could be searched wherever found. Thus, the officers had reason to believe that
the warrant authorized search of the vehicle, and it was reasonable to stop the vehicle
to determine whether it should be included in the warrant search.

       Second, it was reasonable to stop the Excursion to determine whether any
occupant was a resident of 7510 Trumble Avenue. The warrant authorized searching
the person of William Baber. That gave the arriving officers reason to stop the
Excursion to determine whether Baber was riding or hiding in the rear of the vehicle.2
Moreover, the Supreme Court has squarely held “that a warrant to search for
contraband founded on probable cause implicitly carries with it the limited authority
to detain the occupants of the premises while a proper search is conducted.” Michigan
v. Summers, 452 U.S. 692, 705 (1981). In Summers, the Court concluded it was
constitutionally reasonable to detain a person descending the front steps while the
warrant search was conducted. Later cases have confirmed that this authority to
forcibly detain during the warrant search extends to all occupants of the premises, not
just the owner or the subject of the warrant. See L.A. County v. Rettele, 550 U.S.


      2
        The district court’s finding that the officers could not tell whether Baber was
in the vehicle before they made the stop was not clearly erroneous.

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609, 613-14 (2007); Muehler v. Mena, 544 U.S. 93, 98-99 (2005). Detaining
occupants while a house is being searched “prevent[s] flight in the event that
incriminating evidence is found” and facilitates “the orderly completion of the
search.” Summers, 452 U.S. at 702-03. Thus, the officers acted reasonably in
detaining Martinez-Cortes while they conducted a records check that might reveal
whether he was an occupant of 7510 Trumble Avenue. See United States v. Gill, 290
F. App’x 965, 967 (8th Cir. 2008) (unpublished) (reasonable to stop a person exiting
residence about to be searched who might be a resident).

        Third, stopping the Excursion was justified by the strong interest in protecting
the safety of officers engaged in the inherently dangerous activity of executing a
warrant to search for narcotics. See Rettele, 550 U.S. at 614; Summers, 452 U.S. at
702. The officers had sufficient evidence that firearms were on the premises to
convince a magistrate to issue a no-knock warrant. It was dark outside, and a vehicle
previously seen at the residence was backing down the driveway as the officers
approached. The Excursion was close enough to the residence that “an armed
individual inside could pose a danger to officers on the scene.” United States v. Jones,
471 F.3d 868, 875 (8th Cir. 2006), cert. denied, 127 S. Ct. 2953 (2007); see Maryland
v. Buie, 494 U.S. 325, 333 (1990). Moreover, had the officers allowed the Excursion
to drive away, they faced the risk that its occupants would use a cell phone to warn
those in the house of the imminent search, thereby undermining the protections of a
no-knock entry. “The risk of harm to both the police and the occupants is minimized
if the officers routinely exercise unquestioned command of the situation.” Summers,
452 U.S. at 702-03.

       These inherent risks to officer safety were magnified when the occupants of the
Excursion did not promptly comply with orders to put the vehicle in park and show
their hands, and Martinez-Cortes moved his arms as if to hide something between his
leg and the car’s console. These furtive actions gave the officers reason to suspect,
indeed, probable cause to believe that criminal activity was afoot, and that the

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occupants might be a risk to officer safety unless detained while the warrant search
was completed. This justified the officers’ decisions to order Martinez-Cortes out of
the Excursion, see United States v. Stachowiak, 521 F.3d 852 (8th Cir. 2008); United
States v. Spotts, 275 F.3d 714, 719 n.2 (8th Cir. 2002); to handcuff him, see United
States v. Walker, 555 F.3d 716, 721 (8th Cir. 2009); to run a check for outstanding
wants and warrants, see United States v. Tuley, 161 F.3d 513, 515 (8th Cir. 1998); and
to search those areas of the vehicle where a weapon or contraband might be hidden,
see United States v. Bell, 480 F.3d 860, 864 (8th Cir. 2007).3

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________




      3
        Because Martinez-Cortes was secured outside the Excursion and then arrested
for an undescribed misdemeanor warrant, the Supreme Court’s recent decision in
Arizona v. Gant, No. 07-542 (Sup. Ct. Apr. 21, 2009), severely limits the officers’
authority to conduct a warrantless search of the vehicle incident to his arrest.
However, the warrant to search vehicles in the curtilage of 7510 Trumble Avenue
combined with the occupants’ furtive actions when the Excursion was stopped gave
the officers probable cause to believe that contraband or other evidence of drug crimes
would be found in the stopped vehicle, which was an independent basis for conducting
a warrantless search of the vehicle. See United States v. Ross, 456 U.S. 798 (1982),
cited with approval in Gant, slip op. at 13.

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