                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 5 1998
                            FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk


    UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 98-4017
    v.                                             (D.C. No. 96-CR-276-G)
                                                          (D. Utah)
    MASON L. HARDY,

          Defendant-Appellant.


                                ORDER AND JUDGMENT       *




Before BALDOCK , EBEL , and MURPHY , Circuit Judges.          **




         Defendant Mason L. Hardy entered a conditional plea of guilty to a

three-count indictment charging him with possession of controlled substances

with intent to distribute, and aiding and abetting. Defendant reserved the right to

appeal the district court’s denial of his motion to suppress evidence obtained


*
  This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
   After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
during a traffic stop. On appeal, Defendant argues that the search of his luggage

located in the trunk of the rental car he was driving was not consensual, not based

on reasonable suspicion, and not within the scope of a permissible inventory

search. He further maintains the evidence was not admissible under the inevitable

discovery doctrine. We affirm the district court’s decision to deny Defendant’s

motion to suppress, but on a ground different than that upon which the district

court relied. See United States v. Bunner , 134 F.3d 1000, 1005 (10th Cir.),

petition for cert. filed April 24, 1998 (court of appeals may affirm on any ground

supported by the record).

                                         I.

      An Emery County, Utah sheriff’s deputy stopped Defendant for speeding.

A computer check revealed that the automobile was rented and that neither

Defendant nor his passenger was authorized to drive it. The deputy contacted the

car rental company, which requested that the car be impounded. The rental

company also consented to a search of the car. When the deputy informed

Defendant that the car would be impounded and he and his passenger would be

driven to a bus station to continue their trip, Defendant became visibly upset and

began removing numerous items from the car, including a black bag from the

trunk. After Defendant placed the black bag on the pavement, he began to

remove articles from it when the deputy specifically asked him if the bag


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contained any weapons. Promptly thereafter, the deputy ordered defendant to stop

reaching into the bag. Defendant then stepped away from the bag. Immediately

thereafter, the deputy looked in the bag and discovered the narcotics. The deputy

arrested Defendant. Defendant filed a motion to suppress, alleging the deputy’s

search of the black bag violated his Fourth Amendment rights.       1



       After an evidentiary hearing, the district court ruled that the black bag

would have been opened and searched in the course of an inventory search of the

car. Thus, although the deputy inspected the contents of the bag before the

inventory search, the district court concluded that the evidence inevitably would

have been discovered.     See United States v. Haro-Salcedo     , 107 F.3d 769, 773

(10th Cir. 1997) (if evidence seized unlawfully would have been inevitably

discovered pursuant to a legal search, such evidence is admissible) (citing      Nix v.

Williams , 467 U.S. 431, 444 (1984)). Therefore, the district court ruled the

evidence admissible and denied Defendant’s motion to suppress.

       In reviewing the district court’s denial of a motion to suppress, we examine

the court’s findings of fact for clear error, viewing all facts in the light most



1
  Although Defendant lacks standing to object to any search of the car because he
did not prove he had lawful possession of it at the time of the stop,      e.g. , United
States v. Miller , 84 F.3d 1244, 1249-50 (10th Cir. 1996),       overruled on other
grounds by United States v. Holland , 116 F.3d 1353 (10th Cir. 1997), Defendant
has standing to challenge the search of his personal luggage.         See United States v.
Martinez , 983 F.2d 968, 973 (10th Cir. 1992).

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favorable to the government, but review de novo the reasonableness of the seizure

and search. Haro-Salcedo , 107 F.3d at 771. We may affirm a district court’s

holding on grounds not relied on by the district court, so long as the record is

sufficient to permit conclusions of law.   See Bunner 134 F.3d at 1005. Our

review of the record compels us to conclude that the deputy’s search of the black

bag was permissible for reasons other than an inevitable inventory search.

                                           II.

       A police officer may conduct a limited search for weapons if he “possesses

a reasonable belief based on ‘specific and articulable facts which, taken together

with the rational inferences from those facts, reasonably warrant’ the officer in

believing that the suspect is dangerous and the suspect may gain immediate

control of weapons.”    Michigan v. Long , 463 U.S. 1032, 1049 (1983) (quoting

Terry v. Ohio , 392 U.S. 1, 21 (1968)) (footnote omitted)). Where a police officer

has reason to believe that he is dealing with an armed and dangerous individual,

he may conduct a reasonable search for weapons for his own protection, even if

he does not have probable cause for arrest, and even if he is not certain that the

individual is armed.   See Terry , 392 U.S. at 27. The question is whether a

reasonably prudent officer drawing reasonable inferences from the facts in light

of his experience would believe his safety was in danger.   See id.




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      In this case, Defendant became visibly upset when the deputy informed him

that the car would be impounded. Defendant attempted to argue with the deputy

about impounding the car. He angrily tossed his belongings from the car onto the

pavement. At the hearing, the deputy testified that he was “very concerned that

[Defendant] would become confrontational” because he was “becoming

increasingly agitated.” R. Supp. Vol. V at 25. The deputy further testified that he

informed Defendant that for the deputy’s own safety he would check the black

bag for weapons.   See id. at 15.

      The deputy was justifiably concerned for his safety because of Defendant’s

obvious distress and erratic behavior. As the Supreme Court stated in   Long , 463

U.S. at 1049, “roadside encounters between police and suspects are especially

hazardous, and . . . danger may arise from the possible presence of weapons in the

area surrounding a suspect.”    The black bag was within Defendant’s reach and

large enough to contain a weapon. The deputy properly restricted his search “to

those areas to which [defendant] would generally have immediate control, and

that could contain a weapon.”    Id. at 1050. Accordingly, we hold that the

deputy’s search of the black bag was reasonable because he was justifiably

concerned for his safety in checking the bag for weapons.




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     The judgment of the United States District Court for the District of Utah

is AFFIRMED.

                                     Entered for the Court


                                     Bobby R. Baldock
                                     Circuit Judge




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