

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 96-2124

                        UNITED STATES,

                          Appellee,

                              v.

                         OMAR GREENE,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Joseph L. Tauro, U.S. District Judge]                                                               

                                         

                            Before

                    Torruella, Chief Judge,                                                      
               Stahl and Lynch, Circuit Judges.                                                          

                                         

Diana L. Maldonado on brief for appellant.                              
Donald  K.  Stern,  United  States  Attorney,  and  Christopher F.                                                                              
Bator, Assistant United States Attorney, on brief for appellee.             

                                         

                       October 14, 1997
                                         

     Per  Curiam.   Pursuant to  Fed.  R. Crim.  P. 11(a)(2),                            

appellant  Omar Greene entered  a conditional guilty  plea to

the charge of being a felon in  possession of a firearm.  See                                                                         

18  U.S.C.   922(g)(1). He now appeals the denial of his pre-

plea motion to suppress.  For the reasons discussed below, we

affirm    the  order  denying  the  motion  to  suppress  and

appellant's conviction.

                             I. 

     The following facts are  undisputed.  On the  evening of

July  10, 1994, Boston police officers Charles Byrne, Michael

Linsky,  and James Freeman, members of the Anti-Gang Violence

Unit,  were together  in a  police  vehicle in  Roxbury.   At

approximately 10:50  p.m., a  taxicab sped  by them  and went

down  Blue Hill  Avenue.   The officers  pursued the  cab and

activated their lights  and siren once they had  caught up to

it.  The cab pulled over  near an intersection that was about

3/4 of a  mile from the place  the police had first  seen it.

Officers Linsky and Freeman then approached the driver's side

of the  cab while officer  Byrne proceeded to its  right rear

passenger's  side. Appellant was the sole passenger seated in

the rear of  the cab.  Officer  Byrne saw appellant  turn and

look at the approaching officers.  

     When  officer  Byrne  arrived  at the  open  passenger's

window,   he  heard  appellant  exclaim,  "What  did  I  do?"

Appellant appeared nervous.   Byrne responded, "Who  said you

                             -2-

did anything?"  and shined  his flashlight  in at  appellant.

Byrne then observed a large  bulge in appellant's right pants

pocket.   Although he did  not know appellant and  indeed had

not even heard of him  before that day, officer Byrne thought

that  the bulge  might  be  a gun  and  decided  that it  was

necessary  to check to preserve  the officers' safety.  Byrne

opened the door  of the cab, put  his hand on the  bulge, and

felt what he thought was a firearm.  He announced this to his

colleagues and held  appellant's arms  while officer  Freeman

removed from appellant's pocket a fully loaded semi-automatic

handgun with one round in the chamber and seven rounds in the

clip.1  During the course  of these events, appellant made no                 1

movements, save  perhaps for  turning his  head when  officer

Byrne  initially shined  his  light on  him.   Appellant  was

arrested  and  charged  with  two  state  firearm  offenses.2                                                                        2

Ultimately, the state  charges were  dismissed and  appellant

was charged with violating 18 U.S.C.    922(g).

     Relying on  the transcript of  officer Byrne's testimony

at   his  pretrial  detention  hearing,  appellant  moved  to

suppress the gun and ammunition on the ground that the police

                                                    

   1The gun bore an  obliterated serial number and  was later               1
found  to  be stolen.    The  record  does not  suggest  that
appellant was the thief.

   2The cab driver was given a verbal warning and sent on his               2
way.

                             -3-

lacked reasonable suspicion  to stop and search him.3   After                                                                3

the  government  filed  an  opposition,  the  district  court

entered a  one-sentence  order that  denied  the  appellant's

motion without  stating its reasons.   Ten months  later, the

appellant entered a conditional guilty plea and was sentenced

to  30-months'  imprisonment  and  two  years  of  supervised

release.   He  now challenges  the  denial of  his motion  to

suppress.   

                             II.

     Ordinarily,  in  reviewing  the denial  of  a  motion to

suppress, we scan  the district court's findings  of fact for

clear  error,   while  affording   plenary   review  to   its

conclusions  of  law,  including determinations  of  probable

cause and reasonable suspicion.  See, e.g., Ornelas v. United                                                                         

States, 116  S. Ct.  1657, 1659-63  (1996); United States  v.                                                                     

Young,  105 F.3d 1,  5 (1st Cir.  1997).  Our  review here is                 

somewhat hampered because the district court's  order denying

appellant's   motion   to    suppress   gave   no    reasons.

Nevertheless, an "order denying a motion to suppress is to be

upheld if any  reasonable view of the  evidence supports it."

United  States  v.  Lamela,  942  F.2d  100,  102  (1st  Cir.                                      

1991)(internal punctuation  and citations  omitted).   As the

                                                    

   3The   motion  to  suppress  also  sought  to  exclude  an               3
unspecified  amount of marijuana which was found on appellant
after he was arrested.  Appellant has not been charged with a
criminal offense based on this conduct. 

                             -4-

essential facts are undisputed and the district court's legal

conclusions  are subject  to de  novo review,  we may  simply                                                 

decide whether  the stop and search of  appellant were valid.

Cf. United States v. Sepulveda, 102 F.3d 1313, 1315 (1st Cir.                                          

1996)(undertaking  similar  inquiry  where  underpinnings  of

denial of motion to suppress were somewhat unclear).

     A reviewing  court evaluating  the reasonableness  of an

investigative stop must  perform a two-step inquiry.   First,

the  court must  determine  whether  the  police  action  was

justified at its inception.  Second, the court must determine

whether the action  taken was reasonably related  in scope to

the  circumstances which justified the intrusion.  See, e.g.,                                                                        

United States v. Young, 105 F.3d 1, 6 (1st Cir. 1997); United                                                                         

States  v.  Kimball,  25  F.3d 1,  6  (1st  Cir.  1994).   In                               

assessing the reasonableness of a police officer's actions, a

court  "must consider the totality of the circumstances which

confronted  the officer  at  the time  of  the stop."  United                                                                         

States v. Kimball, 25 F.3d at 6.                             

     It is clear that the stop of the speeding cab was valid,

and  appellant does  not seriously  contend  otherwise.   See                                                                         

United  State  v.  Moorefield,  111  F.3d  10,  12  (3d  Cir.                                         

1997)(traffic stop  is lawful where police  observe violation

of traffic  regulations).4  This  case turns  on whether  the                                     4

                                                    

   4Although  appellant  concedes  that   he  was  physically               4
stopped as a  result of the stop of the cab, he suggests that
he was  not legally stopped  because he was only  a passenger

                             -5-

ensuing pat-down search of  appellant's person was justified.

     Appellant argues that  the police were not  justified in

frisking him because they lacked a particularized  reasonable

suspicion  directed  at  him.    Since  only  the driver  had

committed  the traffic violation  and appellant was  only, in

his  view,  an  "accidental  guest"  of  the  cab,  appellant

maintains that the police had no reason to suspect him of any

crime.  Appellant further  asserts  that  where  he  made  no

movements, the  fact  that  officer  Byrne  saw  a  bulge  in

appellant's  pants  did  not give  the  officer  a reasonable

suspicion  to conduct  a  frisk.    In contrast,  relying  on

Pennsylvania  v.  Mimms,  434 U.S.  106,  111-12  (1977), the                                   

government asserts that  a bulge in the clothing  of a person

travelling in  a car that  is lawfully stopped for  a traffic

violation  provides  sufficient grounds  for  the  officer to

believe   that  the  person  is  armed  and  dangerous,  thus

justifying a pat-down search.5                                           5

                                                    

and was not a party to the driver's traffic violation.  "When
a police officer  effects an investigatory stop of a vehicle,
all occupants of  that vehicle are subjected to  a seizure as               
defined by the Fourth Amendment."  United  States v. Kimball,                                                                        
25 F.3d at  5.   See also  United States v.  Robeson, 6  F.3d                                                                
1088, 1091 (5th Cir. 1993)("a  stop results in the seizure of
the passenger  and the driver  alike").  Thus,  appellant was
lawfully stopped even though he was only a passenger the cab.

   5In  Pennsylvania v.  Mimms,  434  U.S. at  11  n. 6,  the               5                          
Supreme Court  held that the  police may order the  driver to
exit  a  vehicle  lawfully stopped  for  a  traffic violation

                             -6-

     Under Terry v. Ohio, 392  U.S. 1, 27 (1968), whether the                                    

pat-down search  of the  appellant was  justified depends  on

"whether  a reasonably prudent man in the circumstances would

be warranted  in the belief  that his safety  or that of  the

others  was in danger."  Accord  United States v. Villanueva,                                                                        

15 F.3d 197,  199 (1st Cir.  1994).  Although  we think it  a

close  question, we conclude that officer Byrne was warranted

in his  belief that  the officers' safety  was in  danger and

that he  was further  warranted in  immediately performing  a

pat-down of appellant. 

     To be sure, all the  police knew was that: (1) appellant

was a passenger in a speeding cab who (2) had glanced back at

the  officers as they  approached, (3) appeared  nervous, (4)

asked, "What did I do?" and (5) had a bulge  in the pocket of

his pants.   Appellant made no  sudden or furtive  movements,

and  was  not  known  to  officer  Byrne   before  that  day.

Appellant contends that these observations do not support any                                                                         

suspicion that he was engaged in criminal activity, let alone

a  crime  where   a  gun  might  be  present.   We  disagree.

                                                    

without violating the  Fourth Amendment.  The  Court recently
extended  this rule to  passengers.  See  Maryland v. Wilson,                                                                        
117 S. Ct. 882, 886  (1997)("an officer making a traffic stop
may order passengers to get out of the car pending completion
of  the stop").  While Mimms also  upheld a pat-down frisk of                                        
the driver based  solely on the police  officer's observation
of  a  bulge,  Wilson  did  not  involve  a pat-down  search.                                 
Because other  circumstances were  present in  this case,  we
need  not decide  whether the  observation  of a  bulge on  a
passenger of a  vehicle stopped for a  traffic violation will
alone justify a pat-down of the passenger.    

                             -7-

Appellant's  nervousness  and  question could  reasonably  be

construed   by   a  seasoned   police  officer   as  evincing

consciousness of guilt.  The  bulge, even if alone not enough

to support a reasonable suspicion,  was surely a factor to be

considered with the  others given the widespread  presence of

guns  on  the   streets  of  Boston.  See  United  States  v.                                                                     

Villanueva, 15 F.3d at 199  (recognizing the plethora of  gun                      

carrying, particularly  by the young).  And while the officer

might well have conducted a lesser  intrusion (e.g., by first

ordering  the appellant  to exit  the cab,  or by  asking him

whether he was  carrying a gun), it was  not unreasonable for

him  to  simply proceed  with  a  frisk  where to  have  done

otherwise under the circumstances may have given appellant an

opportunity to use  the gun. Cf. United States  v. Young, 105                                                                    

F.3d 1, 7  (1st Cir. 1997)(holding police  officer reasonably

lunged  at gun of  armed robbery suspect  where lesser action

may have created risk of harm).6                                            6

     Other courts have upheld pat-down searches of passengers

who  exhibited  similarly suspicious  behavior.   See,  e.g.,                                                                        

United  States v. Moorefield,  111 F.3d at  13-14 (collecting                                        

cases); United States v. Hassan El, 5 F.3d 726, 731 (4th Cir.                                              

1993)(upholding  search in  which  officer  grabbed at  bulge

through open car  window and removed handgun);  United States                                                                         

                                                    

   6The  fact  that  the  gun  was  found  with  a  round  of               6
ammunition  chambered  suggests  that  appellant  was   quite
prepared to use the weapon.

                             -8-

v.   Mitchell,   951   F.2d    1291,   1294-95   (D.C.   Cir.                         

1991)(upholding pat-down search of passenger who obeyed order

to  exit  car).   To  be sure,  in  each of  these  cases the

passengers appeared nervous and engaged in furtive  movements

which gave the police cause for suspicion.  Appellant made no

such  movements here.     Nevertheless,  the foregoing  cases

remain   instructive.    The  fact  that  appellant  made  no

movements toward the gun did not eliminate the suspicion that

he drew to himself with his question, particularly in view of

the  "inordinate risk of  danger to law  enforcement officers

during traffic  stops...."  United  States v. Baker,  78 F.3d                                                               

125, 137  (4th  Cir.  1996)(upholding  protective  search  of

driver who  was subject of  lawful traffic stop  where driver

exhibited  bulge  that  could  be  made  by  weapon).   Given

appellant's  nervousness,  his assumption  (evidenced  by his

question), that he was the object  of the stop, and the bulge

in   his  pocket,   we  think   the   frisk  was   justified.

Accordingly, the order denying appellant's motion to suppress

and the judgment of conviction are affirmed.                                                       

                             -9-
