                                    ___________

                                    No. 96-1128
                                    ___________

United States of America,                *
                                         *
        Plaintiff - Appellee,            *
                                         * Appeal from the United States
        v.                               * District Court for the
                                         * Northern District of Iowa.
Michael D. Menard,                       *
                                         *
        Defendant - Appellant.           *
                                    ___________

                       Submitted:   May 14, 1996

                           Filed:   September 6, 1996
                                    ___________

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


        After Michael D. Menard pleaded guilty to possessing methamphetamine
with intent to distribute and to using or carrying a firearm in relation
to a drug offense, the district court1 sentenced him to two consecutive
sixty-month prison terms.        Menard appeals, contesting only the court's
earlier denial of his motion to suppress evidence seized during a traffic
stop.       United States v. Menard, 898 F. Supp. 1317 (N.D. Iowa 1995).   He
argues that police searched him for weapons solely because they found a
concealed weapon on the vehicle's other passenger, a search that is invalid
under United States v. Flett, 806 F.2d 823 (8th Cir. 1986).      We affirm.




        1
      The HONORABLE MARK W. BENNETT, United States District Judge
for the Northern District of Iowa.
     Shortly before 2:00 a.m. on May 2, 1995, Police Officer Hawley
stopped an automobile that failed to dim its headlights on Highway 71 just
outside of Spencer, Iowa.    Hawley recognized Michael Walker, one of the two
passengers, from a previous narcotics arrest, and had information from an
Iowa drug task force that Walker used drugs and might be involved in drug
sales.    Hawley asked the driver, Lisa Jensen, if he could search the auto,
and she consented.   Jensen, Walker, and Menard, the other passenger, then
exited and stood toward the rear of the auto while Hawley conducted his
search.


     Before Hawley completed the search, Officer Larsen arrived on the
scene to assist.   When Larsen learned Walker's identity, he reminded Hawley
of a recent "Officer Safety Warning" bulletin advising that the Clay County
Sheriff's Department had information that Walker carried an automatic
pistol.   Hawley did a pat-down search of Walker, found a loaded .32 caliber
handgun, and arrested Walker for carrying a concealed weapon.                 Officer
Larsen then asked Menard if he was carrying a gun.            When Menard said no,
Officer Larsen said he would do a pat-down search.            Menard then admitted
that he was carrying a .410 caliber handgun and handed the weapon to
Larsen.   Menard was arrested, and a post-arrest search revealed that he was
carrying ten small plastic bags of methamphetamine.


     Following     the   suppression   hearing   at   which    Hawley   and   Larsen
testified, the district court concluded that it was reasonable for the
officers to take action to protect their safety, and that "the pat-down
search of Menard, once the weapon was found on Walker, was the least
intrusive method to determine rapidly whether any further weapons were in
the hands of anyone else involved in the stop."          898 F. Supp. at 1333.
Therefore, the court denied Menard's motion to suppress.


     On appeal, Menard concedes that Officer Hawley lawfully stopped the
auto for a minor traffic violation, see Iowa Code Ann.




                                       -2-
§ 321.415(1),2 that Hawley properly searched the auto with driver Jensen's
consent, and that the pat-down search of Walker was reasonable.     However,
Menard argues, the officers had no reason to suspect that he was armed or
dangerous.   Therefore, the decision to subject him to a pat-down search was
based upon his association with Walker and violates the "particularized
suspicion" requirement of Flett and Ybarra v. Illinois, 444 U.S. 85 (1979).
We disagree.


     A police officer who has legitimate contact with another person, and
who has reason to believe that person may be armed and dangerous, may
conduct a pat-down search to protect officer safety, regardless of whether
there is also probable cause to arrest.    See Terry, 392 U.S. at 27, 32-33
(Harlan, J., concurring), 34-35 (White, J., concurring).           This case
illustrates a recurring protective search issue:   when police have probable
cause to arrest one member of a group, is it reasonable for them to conduct
pat-down searches of other members of the group to protect officer safety?
Although some circuits have held that all companions of an arrestee may
automatically be frisked for weapons, see United States v. Berryhill, 445
F.2d 1189, 1193 (9th Cir. 1971), we rejected that rule in Flett, applying
instead the Fourth Amendment's traditional, totality-of-the-circumstances
analysis.    It is relevant that one member of a group has been arrested, but
that does not automatically give rise to a reasonable suspicion that the
others may be armed and dangerous.     See 806 F.2d at 827.




     2
      The Supreme Court in Whren v. United States, 116 S. Ct. 1769
(1996), recently confirmed that probable cause to believe that a
traffic violation has occurred justifies a traffic stop. Whren is
significant on another point as well. Though the district court
applied an objective test in denying Menard's motion to suppress,
the court worried that "rely[ing] on objective facts not
subjectively relied upon by the searching officers . . . would
drastically overextend Terry [v. Ohio, 392 U.S. 1 (1968)]." 898 F.
Supp. at 1332. The unanimous Court in Whren laid that issue to
rest, explaining:       "the Fourth Amendment's concern with
'reasonableness' allows certain actions to be taken in certain
circumstances, whatever the subjective intent." 116 S. Ct. at 1775
(emphasis in original). See also Terry, 392 U.S. at 27.

                                     -3-
      In this case, Officer Hawley stopped an auto for a traffic violation
at 2:00 a.m. on a relatively deserted highway.           Hawley was outnumbered by
the auto's occupants.    When he recognized one passenger as a possible drug
trafficker, he obtained consent to search the car.           The Supreme Court has
frequently noted the inherent danger traffic stops pose to police officers
and the consequent likelihood that minimally intrusive weapons searches
will be reasonable.    See Michigan v. Long, 463 U.S. 1032, 1047-50 (1983);
Foley v. Connelie, 435 U.S. 291, 298 (1978); Pennsylvania v. Mimms, 434
U.S. 106, 109-10 (1977); Adams v. Williams, 407 U.S. 143, 148 (1972).
Thus, Officer Hawley could have reasonably conducted pat-down searches of
Walker and Menard as they exited the auto, so that Hawley could complete
his search without fear that its occupants would prove to be armed and
dangerous should contraband be discovered.         See United States v. Douglas,
964 F.2d 738, 741 (8th Cir. 1992); United States v. Brown, 913 F.2d 570,
572 (8th Cir.), cert. denied, 498 U.S. 1016 (1990); United States v.
Whitfield, 907 F.2d 798 (8th Cir. 1990); cf. United States v. Jones, 759
F.2d 633, 640 n.10 (8th Cir.) (129 officers killed pursuing and stopping
traffic violators in the ten years ending in 1983), cert. denied, 474 U.S.
837 (1985).    Menard argues that Hawley evidenced little if any concern for
his   safety   while   searching   the   auto   before   Officer   Larsen   arrived.
However, Fourth Amendment reasonableness does not require "that a policeman
must feel 'scared' by the threat of danger."        United States v. Tharpe, 536
F.2d 1098, 1101 (5th Cir. 1976) (en banc).3


      Hawley did not pat down Walker and Menard as they exited the auto.
Indeed, Walker was not searched until Officer Larsen arrived and reminded
Hawley of the Officer Safety Warning.            Menard argues that this delay
confirms that there was no particularized suspicion to frisk him, but this
ignores the realities of the situation.




      3
     Overruled in part on other grounds, United States v. Causey,
834 F.2d 1179 (5th Cir. 1987) (en banc).

                                         -4-
Finding a gun on Walker and arresting him heightened the threat to officer
safety because an armed associate of Walker might use force to free him.
See United States v. Simpson, 992 F.2d 1224, 1227 (D.C. Cir.), cert.
denied, 510 U.S. 906 (1993); United States v. Bell, 762 F.2d 495, 501 (6th
Cir.), cert. denied, 474 U.S. 853 (1985); Tharpe, 536 F.2d at 1100.           In
Ybarra, the Supreme Court held that execution of a warrant to search a
tavern and its bartender did not justify a pat-down search of every patron.
See 444 U.S. at 91-93.      But Walker and Menard did not just happen to be
together in a public place.     "The relationship among the patrons at a bar
is quite different from the relationship among the occupants of a house or
car."     United States v. Vaughan, 718 F.2d 332, 335 n.6 (9th Cir. 1983).
Nor may we ignore the totality of the circumstances of this encounter --
a lonely road, late at night, a traffic violation, and suspected drug
trafficking by a passenger found to be carrying a concealed weapon.


        After careful review of the suppression hearing record, we conclude
that the district court correctly rejected Menard's contention that he was
searched for weapons "based on nothing more than his companionship with Mr.
Walker."    Applying the totality-of-the-circumstances standard mandated in
Flett, we affirm the order denying Menard's motion to suppress and the
judgment of the district court.


McMILLIAN, Circuit Judge, concurring specially.


        I concur specially.     This is a fact-intensive case, and I write
separately to emphasize that the opinion applies the analysis in United
States v. Flett, 806 F.2d 823, 827 (8th Cir. 1986), and should not be read
as a retreat from its holding rejecting the automatic companion rule and
instead    adopting   a   totality-of-the-circumstances   analysis,   in   which
companionship alone is not enough to justify a pat-down search, but
companionship




                                      -5-
is   one   circumstance   to   be   considered   in   determining   the   overall
reasonableness of the officer’s actions.


      I also write separately to clarify that this case does not involve
the subjective-objective issue recently resolved by the Supreme Court in
Whren v. United States, 116 S. Ct. 1769 (1996).


      Because I agree that in the present case there was more than mere
companionship, I concur in the decision to affirm the district court’s
denial of the motion to suppress.


      A true copy.


            Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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