                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0434p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                           X
                                      Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                            -
                                                            -
                                                            -
                                                                No. 06-6339
              v.
                                                            ,
                                                             >
 LAMAR WILSON,                                              -
                                    Defendant-Appellee. -
                                                           N
                              Appeal from the United States District Court
                           for the Western District of Tennessee at Jackson.
                          No. 06-10025—James D. Todd, Chief District Judge.
                                        Argued: September 17, 2007
                                  Decided and Filed: October 29, 2007
        Before: BATCHELDER and GILMAN, Circuit Judges; VARLAN, District Judge.*
                                             _________________
                                                  COUNSEL
ARGUED: Braden H. Boucek, ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellant. David W. Camp, LAW OFFICE OF DAVID CAMP, Jackson, Tennessee,
for Appellee. ON BRIEF: Braden H. Boucek, ASSISTANT UNITED STATES ATTORNEY,
Memphis, Tennessee, for Appellant. David W. Camp, LAW OFFICE OF DAVID CAMP, Jackson,
Tennessee, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
         RONALD LEE GILMAN, Circuit Judge. This case involves the constitutionality of a pat-
down search of a car passenger that resulted in the discovery of over one pound of powder cocaine.
Lamar Wilson was a passenger in a car driven by Michael Jones when the car was pulled over by
police officers because neither man was wearing a seat belt. The encounter escalated from a routine
traffic stop into a pat-down search for weapons. During this pat-down search, a package wrapped
in duct tape, later discovered to be cocaine, fell from one of Wilson’s pant legs.
        The district court granted Wilson’s motion to suppress evidence of the cocaine, concluding
that the government had not shown that the officers had a reasonable belief that Wilson was armed

        *
         The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of Tennessee, sitting
by designation.


                                                         1
No. 06-6339           United States v. Wilson                                                 Page 2


and dangerous before conducting the pat-down search. On appeal, the government contends that
the search did not violate the Fourth Amendment. For the reasons set forth below, we AFFIRM the
judgment of the district court.
                                       I. BACKGROUND
A.     Factual background
        On the afternoon of January 9, 2006, Chief Deputy Ronnie Moore and Deputy James Jones
of the Lake County Sheriff’s Department were traveling north on Highway 78 in Tiptonville,
Tennessee. The officers passed a gray Chevrolet, driven by Michael Jones and bearing Kentucky
license plates, traveling in the opposite direction. Wilson was riding in the Chevrolet’s passenger
seat. Officer Moore testified that he and Officer Jones (hereafter referred to by his first name of
James) pulled the Chevrolet over after noticing that neither Michael Jones (hereafter referred to as
Jones) nor Wilson was wearing a seat belt, which was in violation of Tennessee law.
       Officer Moore approached Jones while Officer James approached Wilson. Jones and Wilson
were both seated in the vehicle and, by the time they were stopped, had put on their seat belts. Upon
request, Jones produced his driver’s license, which showed a Memphis address despite the fact that
Jones told Officer Moore that he resided in Tiptonville. Officer Moore testified that Jones then
“began talking and rambling and, in response to a question by Moore, ultimately admitted having
served federal time on a gun charge.” Moreover, according to Officer Moore, both Jones and
Wilson were acting extremely nervous.
         At this point, having observed Jones’s and Wilson’s behavior and learned that Jones had
served time on a federal gun charge, Officer Moore returned to his patrol car to run checks on the
car’s license plate as well as Jones’s driver’s license. Officer Moore testified that although the
traffic stop did not last long enough for him to receive the results of the driver’s license check, he
discovered that the Chevrolet was registered to an individual named Gaston. He then approached
Wilson to ask if he was the owner of the car. After ascertaining that Wilson was not the owner of
the car, Moore asked Wilson to provide proof of the car’s registration and insurance.
        While Jones and Wilson both searched for this information, Jones was also talking on his cell
phone. Officer Moore asked him to end the call. Jones complied, but in doing so he turned to
Wilson and said, “They’re coming.” Ultimately Jones and Wilson were unable to provide proof of
registration or insurance for the vehicle that Jones was driving.
        His suspicions raised by Jones’s and Wilson’s inability to produce proof of registration or
insurance, Officer Moore asked Jones for permission to search the vehicle for weapons and drugs.
Jones consented. The officers then asked Jones and Wilson to exit the vehicle so that the officers
could conduct the search. Officer Moore explained to Wilson that he needed to pat him down for
the officer’s safety. A pat-down of Jones was contemporaneously conducted by Officer James. As
Officer Moore conducted the pat-down, a package wrapped in gray duct tape fell from one of
Wilson’s pant legs and landed on the ground. Officer Moore suspected that the package contained
drugs. Later testing indeed confirmed that the package contained one pound, two ounces of powder
cocaine.
        At this point, Officer Moore tried to handcuff Wilson, who resisted arrest by kicking Moore
in the shin and fleeing the scene. Officer James’s simultaneous attempt to handcuff Jones was also
resisted. Wilson briefly stopped fleeing at Officer Moore’s command, but broke free a second time
and jumped into a car belonging to Jones’s friend LaShawnda Ceasar, who had arrived at the scene
in response to Jones’s cell-phone call. When Wilson was later apprehended by authorities, he told
the police that the cocaine belonged to Jones, and that Jones had given it to him to hold when they
were pulled over for the seat-belt violation.
No. 06-6339           United States v. Wilson                                                  Page 3


B.     Procedural background
        Jones and Wilson were subsequently indicted on one count of cocaine possession with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1), and on one count of aiding and abetting the
substantive offense, in violation of 18 U.S.C. § 2. Both defendants moved to suppress evidence of
the cocaine, contending that the discovery was the result of an unreasonable search and seizure in
violation of the Fourth Amendment. The district court denied the motion as to Jones but granted it
as to Wilson, concluding that the government had failed to show that Officer Moore “had a
reasonable belief that Wilson was armed and dangerous before conducting the pat-down search.”
This timely interlocutory appeal by the government followed.
                                          II. ANALYSIS
A.     Standard of review
        In reviewing a motion to suppress evidence, we review the district court’s legal
determinations de novo, but will not set aside its factual findings unless they are clearly erroneous.
United States v. Long, 464 F.3d 569, 572 (6th Cir. 2006). “A factual finding is clearly erroneous
when, although there may be evidence to support it, the reviewing court, utilizing the entire
evidence, is left with the definite and firm conviction that a mistake has been committed.” United
States v. Sanford, 476 F.3d 391, 394 (6th Cir. 2007) (quotation marks omitted). The district court’s
conclusion cannot be clearly erroneous where there are two permissible views of the evidence. Id.
We also “must review the evidence in the light most likely to support the district court’s decision.”
United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996) (quotation marks omitted).
        Moreover, “even the application of the legal principles governing reasonable suspicion to
the facts is subject to some deference.” United States v. Townsend, 305 F.3d 537, 542 (6th Cir.
2002). “Although the standard of review on the ultimate reasonable suspicion inquiry is de novo,
the district court is at an institutional advantage, having observed the testimony of the witnesses and
understanding local conditions, in making this determination.” Id. (italics omitted). For this reason,
we accord “due weight . . . to the inferences drawn from the facts by resident judges.” Id.
(quotation marks omitted).
B.     Constitutionality of the pat-down search of Wilson
         “[T]he Constitution forbids . . . not all searches and seizures, but unreasonable searches and
seizures.” Terry v. Ohio, 392 U.S. 1, 9 (1968). A Terry stop is a type of encounter between police
officers and citizens that is characterized as a “temporary involuntary detention . . . which must be
predicated upon reasonable suspicion” on the part of the officers that criminal activity is afoot.
United States v. Bueno, 21 F.3d 120, 123 (6th Cir. 1994). “Reasonable suspicion is based on the
totality of the circumstances and must require articulable reasons and a particularized and objective
basis for suspecting the particular person of criminal activity.” Joshua v. DeWitt, 341 F.3d 430, 443
(6th Cir. 2003) (citation, ellipses, and quotation marks omitted). The pat-down search of Wilson
in the present case arose in connection with a valid traffic stop. “An ordinary traffic stop is like an
investigative detention, the scope of which is governed by Terry principles.” United States v. Perez,
440 F.3d 363, 370 (6th Cir. 2006).
        During a Terry stop, “a reasonable search for weapons for the protection of the police officer,
where he has reason to believe that he is dealing with an armed and dangerous individual, regardless
of whether he has probable cause to arrest the individual for a crime,” is permissible. Terry, 392
U.S. at 27. Terry does not require the officer to “be absolutely certain that the individual is armed;
the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief
that his safety or that of others was in danger.” Id. Because a pat-down search is for the limited
purpose of ensuring the safety of the officer and others around him, the search must “be confined
No. 06-6339           United States v. Wilson                                                   Page 4


in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer.” Id. at 29.
        The district court granted Wilson’s motion to suppress evidence of the cocaine, concluding
that Officer Moore had no reason to believe that Wilson was armed and dangerous. It therefore held
that evidence of the cocaine was inadmissible as to Wilson under the “fruits of the poisonous tree”
doctrine. The court reasoned as follows:
               In this case, the United States points to various “facts” which it
               claims justified the pat-down frisk of Wilson, none of which support
               a reasonable belief that Wilson was armed and dangerous. For
               example, the United States points to the fact that both defendants
               were “extremely nervous” upon being pulled over; that Jones
               “prattled on nonsensically”; that Jones admitted having served time
               on a federal gun charge; that neither Jones nor Wilson owned the
               suspect vehicle; that there was a disparity between the Memphis
               driver’s license, the Kentucky license plates, and Jones’s statement
               to Moore that he lived in Tiptonville; and that after Jones put up his
               cell phone he turned to Wilson and said “They’re coming.”
               ...
               Although the United States cites these facts to justify the pat-down
               frisk of Wilson, most of the facts concern actions or words that Jones
               took or said. Those that do concern Wilson (i.e., the fact that Wilson
               did not own the suspect vehicle and the fact that he appeared
               extremely nervous), taken as a whole and applied to Wilson, would
               not justify a reasonably prudent man in the belief that his safety was
               in danger.
        The government argues that the district court erred in concluding that the facts supporting
a pat-down search of Jones “did not factor into the determination to pat down Wilson,” and that the
court failed to consider that the men were in a vehicle. More specifically, the government contends
that “[g]iven the explicit reference to a gun conviction by one of the car’s occupants and the
statement by that occupant to the other occupant that ‘they’ were coming to the scene, a reasonably
prudent officer would be warranted in believing that both occupants of the car were armed and
dangerous.”
        Both the government and Wilson cite United States v. Bell, 762 F.2d 495 (6th Cir. 1985), in
support of their respective arguments. This court in Bell upheld the pat-down search of Bell, a
passenger in an automobile that was parked in the parking lot of an Ohio food-stamp distribution
center. Id. at 496-97. Agents with the Federal Bureau of Investigation (FBI) approached the vehicle
in order to arrest the driver, Earl Cherry, pursuant to a valid arrest warrant. Id. at 496-97. Cherry
was suspected of a number of crimes, including food-stamp, weapons, and narcotics trafficking. Id.
at 496. At a briefing held prior to the arrest, the agents were informed that three days earlier Cherry,
accompanied by an accomplice, had purchased food stamps at less than face value from an
undercover agent. Id. Moreover, Cherry had made an agreement to sell cocaine to another
undercover agent, and that transaction was scheduled to occur on the day of the arrest. Id. The
agents had even donned protective vests before undertaking to arrest Cherry because they
anticipated that he might prove to be armed and dangerous. Id.
       While another FBI agent was arresting Cherry, Agent Snyder approached Bell on the
passenger side of the vehicle. Id. at 497. Snyder “ordered Bell to put his hands on the dashboard
No. 06-6339           United States v. Wilson                                                   Page 5


of the car.” Id. When Bell refused to comply, Agent Snyder ordered Bell to exit the vehicle. Id.
Bell unlocked the door but did not otherwise move. Id. Agent Snyder then forcibly “extracted Bell
from his seat.” Id. At the suppression hearing, Agent Snyder testified that Bell stared at him in a
defiant manner. Id. Bell failed to respond to Agent Snyder’s next command that asked Bell “to
place his hands on the roof of the car.” Id. At this point, Agent Snyder placed Bell’s hands on the
car and commenced a pat-down search, which revealed that Bell was carrying an unloaded automatic
pistol. Id.
       Although this court ultimately held that the search of Bell was not in violation of his Fourth
Amendment rights, it expressly declined to adopt a so-called “automatic companion” rule whereby
any companion of an arrestee would be subject to a “cursory ‘pat-down’ reasonably necessary to
give assurance that they are unarmed.” Id. at 498 (citation omitted). “As to the propriety of the
‘automatic companion’ rule, we do not believe that the Terry requirement of reasonable suspicion
under the circumstances . . . has been eroded to the point that an individual may be frisked based
upon nothing more than an unfortunate choice of associates.” Id. at 499 (citation omitted). It further
concluded that an “automatic companion” rule would be inconsistent with the Supreme Court’s
stated policy of carefully maintaining the “narrow scope of Terry’s exception to the warrant
requirement.” Id. (citation and quotation marks omitted).
         This court instead upheld the search in Bell on the basis that there were “specific articulable
facts known to Agent Snyder at the time he approached the passenger side of the Cadillac, as well
as rational inferences therefrom, which might reasonably support the perception that Bell posed a
risk to the security of the officers.” Id. at 500. These facts included Agent Snyder’s knowledge that
Cherry, the target of the arrest warrant, was suspected of being armed and dangerous because
narcotics transactions often involve weapons. Id. Moreover, the agents were advised in advance
of the execution of the warrant that Cherry had been seen with an accomplice. Id. at 501. The court
thus noted that Bell’s presence as a passenger, “while not itself justifying a frisk, was permissibly
considered in analyzing whether there was reasonable cause to believe that Bell was potentially
armed and dangerous.” Id. For these and other reasons not relevant to the present case, the court
concluded that, under the “totality of the circumstances test,” the pat-down search of Bell did not
violate the Fourth Amendment. Id. at 502.
         Contrary to the government’s argument, the facts in the present case are not analogous to the
totality of the circumstances that existed in Bell. The driver of the vehicle in Bell was known to be
potentially armed and dangerous because he was a drug dealer, and the very purpose of the stop was
to arrest that driver. Moreover, the driver was known to have been traveling with an accomplice.
This is a totally different fact pattern from that in the present case, where Jones and Wilson were
pulled over simply because they were not wearing their seat belts, a minor traffic violation. Jones’s
spontaneous admission that he had served time on a federal gun charge does not suggest that “Jones
was potentially armed.” If anything, the admission at that point in the traffic stop suggests
cooperation with authorities, not resistance. Had Jones intended to draw a gun on the officers, it is
unlikely that he would have been so forthcoming about his prior conviction.
        The government also asserts that the district court “entirely disregarded from the equation
anything having to [do] with Jones.” A reading of the court’s order in its entirety, however,
indicates the court’s recognition that Wilson’s proximity to Jones was relevant, but not dispositive,
to the analysis. This is a correct interpretation of the law, because this court has held that the
government must indeed show additional factors in order for the search to be constitutional. See
United States v. Robinson, 149 F.3d 1185, 1998 WL 322656, at *3 (6th Cir. 1998) (holding that,
although the government can rely on the fact that the defendant’s traveling companion was found
to be carrying a weapon “as part of the basis for establishing reasonable suspicion with regard to”
the defendant, the government “must point to additional specific and articulable facts” in order to
No. 06-6339           United States v. Wilson                                                    Page 6


satisfy Terry) (unpublished) (emphasis added). To hold otherwise would in effect adopt the
“automatic companion” rule that has already been rejected by this court. See Bell, 762 F.2d at 498.
         The government next argues that the district court failed to take into account that the officers
in this case were dealing with two individuals who were in a car rather than on the street. Bell is
cited by the government for the proposition that “law enforcement officers are faced with a less
substantial task in justifying the limited intrusion of a patdown when its subject is seated in a car,
than when approaching an individual on the street or in some other circumstance.” Id. at 500. The
government thus contends that the district court incorrectly applied the law by confining its
reasoning “to a general Terry analysis.”
         Bell, however, does not relax the standard under Terry simply because the defendant is
seated in a vehicle as opposed to walking down the street. To be sure, the Supreme Court has
“specifically recognized the inordinate risk confronting an officer as he approaches a person seated
in an automobile.” Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977). That risk, however, stems
in part from the “hazard of accidental injury from passing traffic,” and not solely from the potential
of assault on the officer by the person seated in the vehicle. Id. at 111. This court in Bell was careful
to note that “there is nothing about being seated in a car which is itself suspicious.” Bell, 762 F.2d
at 500 n.6. In sum, the fact that a person is seated in a vehicle does not create a different test, but
instead is simply a relevant consideration under the totality of the circumstances. Id. at 499. It in
no way changes the overarching constitutional analysis: “The fundamental inquiry in determining
whether evidence is admissible is whether, in light of the ‘totality of the circumstances’ surrounding
the seizure, it was reasonable for law enforcement personnel to proceed as they did.” Id.
        We are left with three specific and articulable facts offered by the government in support of
the legality of the pat-down search of Wilson: (1) the words and actions of Jones, the driver, (2) the
fact that Wilson did not own the vehicle, and (3) Wilson’s extreme nervousness. The words and
actions of Jones during the stop were undeniably suspicious and possibly indicative that Jones was
involved in some sort of criminal activity. This is not enough, however, to justify a pat-down search
of Wilson, the sole justification for which was to protect the officers from an armed and dangerous
suspect. See Michigan v. Long, 463 U.S. 1032, 1050 n.14 (“A Terry search, unlike a search without
a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or
destruction of evidence of crime.”) (quotation marks omitted).
         Moreover, the fact that Wilson did not own the car does not support his pat-down. Most
passengers do not own the vehicle in which they are riding. What is left, at bottom, is Wilson’s
“extreme nervousness” when the officers approached the car. But Officer Moore testified that it was
fairly common for people to be nervous when he pulled them over. Nervous behavior, standing
alone, is not enough to justify a Terry search. United States v. Mesa, 62 F.3d 159, 162 (6th Cir.
1995) (“Although there are a plethora of cases referring to a defendant appearing nervous,
nervousness is generally included as one of several grounds for finding reasonable suspicion and not
a ground sufficient in and of itself.”) (footnote omitted); cf. United States v. Montgomery, 377 F.3d
582, 586 (6th Cir. 2004) (holding that a Terry search was justified “[b]ased upon the nervousness
of all of the occupants, the marijuana stem in plain view, []attempts to conceal the marijuana stem
and an unknown object, respectively”).
         In sum, the government can point to no specific and articulable facts to justify the pat-down
of Wilson on the basis of a reasonable suspicion that he was armed and dangerous. Nor did the
district court incorrectly apply the law. We thus find no error in granting the motion to suppress as
to Wilson. Although we do not relish the consequence that the possessor of a large quantity of drugs
will escape punishment, our overriding concern is that the police must abide by the Fourth
Amendment protections afforded to all of the inhabitants of this great country, guilty and innocent
alike. See Terry, 392 U.S. at 13 (stating that “Courts which sit under our Constitution cannot and
No. 06-6339          United States v. Wilson                                               Page 7


will not be made party to lawless invasions of the constitutional rights of citizens by permitting
unhindered governmental use of the fruits of [unreasonable searches and seizures].”).
                                      III. CONCLUSION
       For all of the reasons set forth above, we AFFIRM the judgment of the district court.
