                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 02-4385
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

KEENAN L. JACKSON,
                                          Defendant-Appellant.

                         ____________
           Appeal from the United States District Court
               for the Central District of Illinois.
             No. 02-30028—Richard Mills, Judge.
                         ____________
      ARGUED APRIL 16, 2004—DECIDED JULY 28, 2004
                     ____________



 Before EASTERBROOK, RIPPLE, and DIANE P. WOOD, Circuit
Judges.
   EASTERBROOK, Circuit Judge. Police in Springfield,
Illinois, stopped Keenan Jackson for a traffic offense. He
was not carrying a driver’s license. After a check of iden-
tifying details via the computer terminal in the squad car
implied that the driver might not be who he claimed, Officer
Sapetti decided to detain Jackson until his identity could be
established. Sapetti handcuffed Jackson and, before seating
him in the police car, patted him down for weapons; he
found a hard item in Jackson’s crotch. The object turned out
to be more than 50 grams of crack cocaine, and Jackson was
indicted for a violation of 21 U.S.C. §841. After the district
2                                                No. 02-4385

court denied his motion to suppress this evidence, Jackson
entered a conditional guilty plea that preserved his right to
appeal the question whether Officer Sapetti violated the
fourth amendment.
   Sapetti testified at the suppression hearing that Jackson
had changed lanes without signaling. Jackson denied com-
mitting any traffic offense. The judge believed Sapetti rather
than Jackson. Given that finding, Sapetti had probable cause
to arrest Jackson. See Whren v. United States, 517 U.S. 806
(1996). And it is reasonable for the police to search the
body, clothing, and immediate possessions of anyone in
custody following an arrest on probable cause. Jackson’s
situation is a replay of Gustafson v. Florida, 414 U.S. 260
(1973): Gustafson was stopped for a traffic violation, arrested
and taken into custody when he could not produce a driver’s
license, and searched. The Court held that search reason-
able. Gustafson and its companion United States v. Robin-
son, 414 U.S. 218 (1973), announce the bright-line rule that
police are entitled to search the persons and possessions of
everyone arrested on probable cause, with or without any
reason to suspect that the person is armed or carrying
contraband. The district court found that Sapetti had
searched Jackson incident to a valid arrest and as a result
held that the cocaine would be admissible against Jackson.
  Jackson does not contend that the district judge’s factual
conclusion is clearly erroneous. Nor does his appellate law-
yer deny that a search incident to arrest is automatically
valid under the fourth amendment. His brief does not cite
Gustafson, Robinson, or Whren. Instead Jackson contends
that Officer Sapetti did not have the level of suspicion that
would have justified a pat-down search under Terry v. Ohio,
392 U.S. 1 (1968). It is hard to see why that matters, given
the probable cause for his arrest. The holding of Gustafson
and Robinson is that police who make an arrest on probable
cause do not need person-specific suspicion that the suspect
is carrying something dangerous. To get anywhere, there-
No. 02-4385                                                  3

fore, Jackson had to challenge the district judge’s conclusion
that Sapetti had effected a valid arrest, yet counsel did not
make any contention along these lines.
  Omission of that argument does not result in plain error.
The principal authority on which Jackson might have relied
(had his lawyer been alert) is Knowles v. Iowa, 525 U.S. 113
(1998), which held that drivers stopped for a routine traffic
offense and given citations without being taken into custody
may not be searched as a matter of routine. Cf. Berkemer v.
McCarty, 468 U.S. 420 (1984) (routine traffic stop does not
create the sort of custody that requires Miranda warnings).
Knowles limits Robinson and Gustafson to custodial arrests;
it instantiates the principle that the reasonableness of a
search depends on what the officers actually do, not what
they might have done. The police did not detain Knowles
before conducting the search. When Knowles was issued, the
Court had yet to decide whether a full custodial arrest for
an offense punishable only by a fine is permissible; three
years later the Justices held that this step is proper. See
Atwater v. Lago Vista, 532 U.S. 318 (2001). See also Wil-
liams v. Jaglowski, 269 F.3d 778, 783 (7th Cir. 2001).
Knowles itself observed that the driver’s failure to produce
a valid license or other proper identification could support
custody. 525 U.S. at 118. And as Knowles explained it is
custody, and not a stop itself, that makes a full search
reasonable: officers’ needs to protect themselves and pre-
serve evidence are what justify the rule allowing searches
of arrested persons.
  So let us go step by step through the events that led to
the cocaine’s discovery. First step: stop of the car. That was
supported by probable cause, given the district judge’s
finding of fact. Second step: request for the driver’s license.
This is reasonable in any traffic stop supported by probable
cause. See also Hiibel v. Sixth Judicial District Court, No.
03-5554 (U.S. June 21, 2004) (even for a Terry stop the
officer may insist that the suspect provide identification).
4                                                  No. 02-4385

   Third step: deciding to detain Jackson in the cruiser after he
did not hand over a driver’s license, and information from
the police database raised doubts about his identity. This is
proper in principle given Atwater and must be called
reasonable under the circumstances. Once Jackson failed to
produce a driver’s license, the police could not put him back
in the car and watch him motor off. (Jackson was traveling
alone; no passenger was available to get behind the wheel.)
Moreover, he could have been a fugitive. See United States
v. Garcia, No. 04-1006 (7th Cir. July 15, 2004). Such a
person might claim, as Jackson did, not to be carrying a
driver’s license or other document that revealed his iden-
tity. Sapetti told him—even while slapping on the hand-
cuffs—that he was not “under arrest” but was just being
“detained” while more identity checking occurred. The
officer’s language does not change the facts, however: there
was probable cause to believe that Jackson had committed
a crime, and he was (reasonably) taken into custody. It does
not matter for current purposes what label the officer
applied at the scene; analysis under the fourth amendment
is objective, as we discussed in Garcia.
  Fourth step: searching a person about to be held for an
indefinite period. Here the justification for that precaution,
as articulated in Knowles and applied in Robinson and
Gustafson, is present in full measure. Sapetti found the
drug in a place from which Jackson could have retrieved a
weapon had he possessed one. It would have been foolhardy
to trundle Jackson into the squad car without ensuring that
he was unarmed. Sapetti was entitled to reduce danger to
himself before securing Jackson in the back seat for how-
ever long it took to find out who he really was. Likewise
Sapetti was entitled to preserve any evidence that Jackson
may have been carrying. That the search turned up drugs
rather than a gun (or bogus identification) does not make it
less valid.
                                                     AFFIRMED
No. 02-4385                                                 5

  RIPPLE, Circuit Judge, dissenting. The key question in
this case is the type of detention to which Mr. Jackson was
subject while waiting for Officer Sapetti to investigate his
identity. As noted by the majority, the subjective intent of
both parties—Officer Sapetti and Mr. Jackson—are irrel-
evant to the inquiry: The justification for the stop, as well
as the nature of the resulting detention, both are governed
by an objective standard. See Whren v. United States, 517
U.S. 806, 813 (1996) (holding that “[s]ubjective intentions
play no role in ordinary, probable-cause Fourth Amendment
analysis”); Ochana v. Flores, 347 F.3d 266, 270 (7th Cir.
2003) (“A suspect is under custodial arrest when ‘a reason-
able person in the suspect’s position would have understood
the situation to constitute a restraint of freedom of move-
ment of the degree which the law associates with formal
arrest.’ ”) (quoting United States v. Ienco, 182 F.3d 517, 523
(7th Cir. 1999)). However, whereas the unstated intentions
of Officer Sapetti in instituting the stop may be irrelevant
to the probable cause determination, his stated inten-
tions—that he was not placing Mr. Jackson under ar-
rest—are a factor to consider in assessing whether a
reasonable person in Mr. Jackson’s circumstances would
conclude that he was under arrest. See Ochana, 347 F.3d at
270 (“Ochana had no reason to believe that he was under
custodial arrest for any offense. He was not told that he was
under arrest . . . .”); United States v. Corral-Franco, 848
F.2d 536, 541 (5th Cir. 1988) (accord); cf. United States v.
Mendenhall, 446 U.S. 544, 555 n.6 (1980) (“We agree with
the District Court that the subjective intention of the DEA
agent in this case to detain the respondent, had she at-
tempted to leave, is irrelevant except insofar as that may
have been conveyed to the respondent.”); United States v.
Pratt, 355 F.3d 1119, 1124 (8th Cir. 2004) (“Although the
officers testified that they did not believe they had arrested
Pratt when they physically restrained him, this fact does
not change the outcome. An officer’s uncommunicated
6                                                No. 02-4385

subjective intent is irrelevant to the question of whether an
individual has been seized.” (citation omitted; emphasis
added)).
  Considering Officer Sapetti’s statements and the other
circumstances surrounding Mr. Jackson’s detention, I do
not believe that the detention amounted to a full custodial
arrest. Officer Sapetti did not tell Mr. Jackson he was under
arrest; to the contrary, the officer told Mr. Jackson that he
was not under arrest. Officer Sapetti detained Mr. Jackson
for the purpose of investigating his identity; the officer gave
no indication that Mr. Jackson’s moving violations were the
reason for his being held. Furthermore, the nature of the
detention, as communicated by Officer Sapetti to Mr.
Jackson, was going to be brief—the officer was going to
handcuff Mr. Jackson and secure him in the police car; Mr.
Jackson was not being transported to police headquarters
for booking. Far from suggesting an arrest, Mr. Jackson’s
detention has all of the markings of a Terry stop—“a brief,
investigatory stop,” United States v. Ocampo, 890 F.2d 1363
(7th Cir. 1989), for the purpose of determining whether
“criminal activity may be afoot,” Terry v. Ohio, 392 U.S. 1,
30 (1968). And, therefore, Officer Sapetti’s search of Mr.
Jackson must be evaluated as a search incident to a Terry
stop.
  It is well-established that an officer conducting a Terry
stop may conduct a protective search of the suspect for the
purpose of “the discovery of weapons which might be used
to harm the officer or others nearby.” Terry, 392 U.S. at 26.
Furthermore, if during a lawful patdown of a suspect’s
outer clothing, an officer “feels an object whose contour and
mass makes its identity immediately apparent” and “if the
object is contraband, its warrantless seizure [is] justified.”
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). The
question, therefore, is whether it was “immediately appar-
ent” to Officer Sapetti that the object located on Mr.
Jackson was contraband. Stated another way, was Officer
No. 02-4385                                                 7

Sapetti “acting within the lawful bounds marked by Terry
at the time he gained probable cause to believe that the
lump in [Mr. Jackson’s pants] was contraband.” Dickerson,
508 U.S. at 377.
  The district court did not reach this question. It concluded
that Mr. Jackson’s detention constituted an arrest and
consequently evaluated Officer Sapetti’s search according to
the broader standard for a search incident to an arrest. It
did not evaluate the search in light of Terry and Dickerson
to determine whether the nature of the contraband became
apparent to Officer Sapetti during the course of a reason-
able search for weapons, or whether it became apparent
only after manipulation of the object beyond that which
Terry allows. See Dickerson, 508 U.S. at 378. Because this
issue is one that is best addressed by the district court in
the first instance, I would remand the case to the district
court to determine whether Officer Sapetti’s actions were
consistent with Terry and its progeny.
  For these reasons, I respectfully dissent.
8                                         No. 02-4385

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—7-28-04
