                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                          REVISED OCTOBER 22, 2004
                                                                                    October 11, 2004
                                    In the
                                                                                Charles R. Fulbruge III
                 United States Court of Appeals                                         Clerk

                                for the Fifth Circuit
                                       _______________

                                           m 03-10827
                                         _______________



                                 UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellant,

                                              VERSUS

                                 RICHARD KENNETH WALLEN,

                                                             Defendant-Appellee.


                                   _________________________

                            Appeal from the United States District Court
                                for the Northern District of Texas
                                      m 03-CR-152-ALL-A
                                 _________________________



Before SMITH, WIENER, and PICKERING,                 appeal from the suppression order. Finding
  Circuit Judges.                                    error, we reverse and remand.

JERRY E. SMITH, Circuit Judge:                                             I.
                                                        Wallen’s vehicle was stopped for speeding
   Richard Wallen was charged with posses-           by Officer Bryan Miers. As Miers approached
sion of two firearms that were not registered        Wallen’s vehicle, he observed what appeared
to him in the national registry, in violation of     to be two rifles on the passenger side of the
26 U.S.C. § 5861(d). Alleging violation of his       truck. When Miers requested Wallen’s license
Fourth Amendment rights, he successfully             and proof of insurance, Wallen responded that
moved to suppress evidence seized from his           he thought they were in his wallet that was
truck. The government takes an interlocutory         somewhere on the passenger side of his truck.
Wallen, who was alone, exited the truck and             en him and discovered that authorities in Dal-
walked around the front of the truck to the             las County had a warrant out for Wallen’s ar-
passenger side, which he opened. As Wallen              rest for a traffic violation. Miers exited the
stepped out of the vehicle, Miers noted that he         car, put Wallen in handcuffs, and placed him
was barefoot.                                           in the backseat of the patrol car. Miers told
                                                        Wallen he was placing him in “temporary cus-
   After reaching the passenger side, Wallen            tody” until the warrant could be confirmed
started searching through the clutter of items,         because of “the amount of firepower that you
with Miers standing right behind him. As the            have [unintelligible] in this vehicle.”
search began, Miers noticed a handgun pro-
truding from underneath a bag and interceded,               Miers began to search the interior of Wal-
“Okay, just, that’s okay, just step away from,          len’s truck, uncovering four rifles, three hand-
man you’re making me nervous with all those             guns (two of which were loaded), and a shot-
weapons in there. Just go ahead and shut the            gun. He observed that the barrel of one of the
door and step to the rear of the truck please.”         rifles had been threaded at the end to allow an
                                                        attachment to be screwed on. While search-
   Wallen complied, whereupon Miers asked               ing, Miers received a communication, inform-
Wallen whether he had a license to carry a              ing him that the aforementioned warrant for
concealed weapon. Wallen stated that he did             Wallen could not be executed outside Dallas
not have a license but that he was not carrying         County.
any concealed weapons. Miers then asserted
that Wallen was carrying handguns, to which                Miers returned to the patrol car and asked
Wallen replied that he was carrying guns “from          Wallen what kinds of weapons he had, to
a place of business which is . . . handgun ori-         which Wallen responded that he had three
ented,” which, he contended, the law allowed.           handguns and four rifles (not mentioning the
Miers then told Wallen that the fact that he            shotgun). Wallen explained that he operated
had a gun business was only a defense to                a shooting range and was presently moving the
transporting a concealed handgun.                       weapons to his residence because of flooding.
                                                        Miers then informed Wallen that the warrant
   Because Wallen had thus far failed to pro-           for his arrest could not be confirmed, but he
duce identification, Miers asked for his name,          would nevertheless remain in custody because
date of birth, and address. He left Wallen at           of possession of handguns without a permit
the rear of the truck, asking him to “hang              and because of the fact that he did not know
tight.” While radioing the information from             who Wallen was or what he was intending to
his patrol car, he observed Wallen moving               do with the weapons.
toward the cab of his truck. Miers exited the
patrol car and instructed Wallen to return to              Miers called another officer and his supervi-
the rear of the truck. Wallen hesitated in com-         sor to the scene. On arrival, they confirmed
pliance, at first only moving partially to the          that the guns were not stolen, and measured
rear of the truck. After being given the in-            the barrel length of the gun that had the
struction for a second time, Wallen complied.           threading on the end of the barrel. Miers told
                                                        his supervisor that given the amount of fire-
    After returning to his patrol car, Miers ver-       power Wallen possessed, his lack of identifica-
ified the personal information Wallen had giv-          tion, and the threaded rifle barrel, Miers was

                                                    2
concerned that Wallen might be a sniper.               passenger compartment of a vehicle if he has a
Wallen then insisted that he was merely trans-         reasonable suspicion that the person poses a
porting the guns from his firing range and sug-        danger and may gain immediate control of
gested that the officers contact the Duncanville       weapons.
Police Department to vouch for his ownership
of a shooting range.                                      The court denied the motion, holding that
                                                       Long did not apply because Wallen could not
    After determining that the length of the           have gained control of the weapons after he
threaded barrel was fifteen and one-half inches,       was already handcuffed and in the patrol car,
the officers called an agent at the Bureau of          and that it was not reasonable to consider him
Alcohol, Tobacco, and Firearms, who in-                dangerous, because he was cooperative with
formed them that the possession of a barrel            Miers. Citing Miers’s inconsistent reasons for
shorter than sixteen inches was a violation of         placing and keeping Wallen in custody, the
federal law unless the weapon was registered.          court concluded that the search was not a valid
Wallen was placed under arrest, approximately          protective sweep for weapons, but rather a
one hour and nineteen minutes after the initial        “rummaging through the vehicle in an effort to
stop, for unlawfully carrying concealed weap-          find illegal firearms that could provide incrimi-
ons and the firearms violation. The police             nating evidence against Wallen.” The govern-
subsequently discovered a silencer in Wallen’s         ment appeals the denial of the motion for
truck and established the fact that one of the         reconsideration pursuant to 18 U.S.C. § 3731
weapons was fully automatic. The entire                and rule 4(b)(1)(B)(i), FED. R. APP. P.
traffic stop was recorded by a camera in
Miers’s vehicle.                                                            III.
                                                                            A.
                      II.                                 We uphold a district court’s findings of
   The government charged Wallen with un-              facts on a motion to suppress unless they are
lawful possession of a machine gun and a si-           clearly erroneous. United States v. Shabazz,
lencer in violation of § 5861(d). Wallen               993 F.2d 431, 434 (5th Cir. 1993). Conclu-
moved to suppress the guns, claiming an un-            sions of law are reviewed de novo. United
reasonable search and seizure under the Fourth         States v. Gonzales, 190 F.3d 668, 671 (5th
Amendment. During the suppression hearing,             Cir. 1999). Findings that are in plain contra-
the parties presented the court with Miers’s           diction of the videotape evidence constitute
testimony and with the videotape of the stop.          clear error.1
Holding that the guns seized from Wallen’s
vehicle were obtained through an illegal search
for which no exception applied, the district
court suppressed them.
                                                          1
   The government moved for reconsideration                 See, e.g., United States v. Jones, 234 F.3d
in which it reiterated prior arguments regard-         234, 237 n.1, 241-43 (5th Cir. 2000) (rejecting
                                                       witness testimony regarding whether an answer
ing the validity of the search. It contended,
                                                       aroused an officer’s suspicion, and correcting
inter alia, that the search was permissible un-
                                                       findings regarding the time at which a transaction
der Michigan v. Long, 463 U.S. 1032, 1049              occurred, because testimony and findings conflicted
(1983), which allows an officer to search the          with videotape evidence).

                                                   3
                      B.                                 measures to ensure that there were no other
   Under the Fourth Amendment, warrantless               weapons within the person’s immediate grasp
searches are presumptively unreasonable, and             before permitting him to reenter his automo-
the government bears the burden of establish-            bile. Id. at 1052.
ing circumstances to justify them. United Stat-
es v. Lage, 183 F.3d 374, 380 (5th Cir. 1999);              Under Long, this court has found protective
United States v. Berick, 710 F.2d 1035, 1037             searches of automobiles valid under the Fourth
(5th Cir. 1983). The government argues that              Amendment where the police officer had an
the search was valid under Long.                         objective reason to fear for his safety or the
                                                         safety of others.2 Where we have rejected a
   In Long, two police officers stopped to in-           protective search, the officers had almost
vestigate a car that had swerved into a ditch.           nothing on which to base a concern for safety;
See Long, 463 U.S. at 1035. The driver ap-               the police did not observe unusual weapons,
peared intoxicated, and when the officers fol-           nor did the individuals act in a particularly
lowed him to his vehicle, they noticed a hunt-           suspicious manner.3
ing knife on the floorboard, so they frisked him
and searched the car for weapons. See id. at                Miers encountered facts that would objec-
1036. During the search, they shone a light              tively cause him reasonably to suspect that
into the car, observed something protruding              there were other weapons in the vehicle and to
from under the armrest, and discovered a                 worry about his safety. At the time of the pro-
pouch containing marihuana. See id. at 1036,             tective search, Miers knew Wallen possessed
1050.
                                                            2
   The Supreme Court determined that protec-                  See, e.g., United States v. Baker, 47 F.3d 694
tive pat-down/frisk searches authorized by               (5th Cir. 1995) (upholding protective automobile
Terry v. Ohio, 392 U.S. 1, 22 (1968), extend             search based on existence of hunting knife, ammu-
to passenger compartments of automobiles,                nition, and occupant’s general statement that she
but limited to those areas in which a weapon             “did not know” the location of a pistol); United
                                                         States v. Coleman, 969 F.2d 126, 131 (5th Cir.
may be placed or hidden, when the police
                                                         1992) (upholding protective automobile search af-
officer possesses “an articulable and objec-             ter an individual stopped for traffic violation ad-
tively reasonable belief that the suspect is po-         mitted to possessing gun in pouch where he kept
tentially dangerous.” See Long, 463 U.S. at              license and registration); United States v. Maestas,
1051. “‘[The] issue is whether a reasonably              941 F.2d 273, 277 (5th Cir. 1991) (upholding
prudent man in the circumstances would be                search of a car based on accusatory and threaten-
warranted in the belief that his safety or that of       ing conversations between two parties in car).
others was in danger.’” Id. at 1050 (quoting
                                                            3
Terry, 293 U.S. at 27). The Court emphasized                  See, e.g., Estep v. Dallas County, 310 F.3d
the need to protect officers’ safety, because            353, 358 (holding that camouflage gear, National
“roadside encounter[s] between police and                Rifle Association sticker, key-chain mace, and an
suspects are particularly hazardous, and . . .           unusual tone of voice on the part of the passenger
                                                         did not justify protective automobile search); see
danger may arise from the possible presence of
                                                         also United States v. Hunt, 253 F.3d 227 (5th Cir.
weapons in the area surrounding a suspect.”
                                                         2001) (holding that the mere fact that the driver
Id. at 1049. The Court determined that the               met the officer outside his car with a license does
officers acted reasonably in taking preventive           not justify a protective search).

                                                     4
at least three weapons in his truck. Wallen               Court identified a purpose of protective
disobeyed instructions at least once, when he             searches to be the concern that “if the suspect
walked in the general direction of the cab after          is not placed under arrest, he will be permitted
Miers had instructed him to “sit tight” at the            to reenter his automobile, and he will then
rear of his vehicle.                                      have access to any weapons inside.”

    Wallen had admitted that he lacked any                   The possibility that Miers might release
documentation for the weapons, and he could               Wallen to his truck would provide grounds for
not provide anything at the time to support his           the protective search. Additionally, in United
claim that he owned a target range. At the                States v. Sanders, 994 F.2d 206, 208-10 (5th
time that the search was initiated, he was                Cir. 1993), we rejected a similar argument that
aware of a Dallas County warrant issued on his            a frisk was invalid because the suspect was
arrest. Additionally, the stop happened at                already in handcuffs with respect to a Terry
night, and Wallen was suspiciously barefoot.4             stop. We recognized that suspects in hand-
Miers’s actions were justified, because on                cuffs can remain a danger to the police, partic-
these facts, “a reasonably prudent man in the             ularly when weapons are present. Id. As a
circumstances would be warranted in the belief            result, we held that the danger justified a pat-
that his safety or that of others was in danger.”         down to secure the officer’s safety. Given that
Id.                                                       a protective sweep of an automobile under
                                                          Long is viewed as a “Terry pat-down” of a car,
   Despite this binding authority, the district           the Sanders rule applies here to legitimize this
court concluded that Wallen was not danger-               sweep, although Wallen was in handcuffs at
ous, and the search was invalid, because                  the time.5
(1) Wallen was in handcuffs at the time of the
search; (2) Miers did not intend to release                  The district court ’s reasoning that this
Wallen back into his vehicle; (3) Wallen was              search was invalid under Long, because Miers
cooperative throughout the traffic stop; and              did not intend to release Wallen back to his
(4) Miers did not actually fear for his own               car, is unavailing, because the district court
safety. The district court’s grounds lack merit.          contradicts itself in its findings. To refute the
                                                          inevitable-discovery argument that was made
   First, the court was incorrect in finding that         by the government during the suppression
the protective search was invalid because Mi-             hearing, the district court found:
ers had already placed Wallen in handcuffs.
This finding misunderstands the nature of the                The contents of the tape leave open the
protective search; the fear of a person’s gain-              possibility that Officers [sic] Miers would
ing immediate control of weapons does not                    not have arrested Wallen for his possession
limit itself to the time of the stop, but extends            of the handguns that were found on the seat
through the entire interaction between him and
the officer. In Long, 463 U.S. at 1051-52, the               5
                                                                See United States v. Ibarra-Sanchez, 199
                                                          F.3d 753, 760 n.7 (5th Cir. 1999) (noting that a
                                                          Long protective sweep of a van “might also be
   4
     See Long, 463 U.S. at 1050 (relying in part on       justified” in a case where the police had placed all
the fact that it was night as a factor enhancing          the occupants in handcuffs and in the backseats of
danger to the police).                                    their patrol cars).

                                                      5
   if Officer Miers had not discovered what he          able under the Fourth Amendment.6 Specifi-
   considered to be other illegal weapons               cally with regard to the matter of a protective
   through his warrantless search of the vehi-          sweep under Long, this court has emphasized
   cle. Though not apparent from the record,            that there is no legal requirement that an of-
   there is a possibility that Officer Miers did,       ficer subjectively fear for his own safety before
   to some degree, accept Wallen’s position             engaging in such a search.7 Even if the district
   that he had a right to be transporting the           court was correct in finding that Miers was
   handguns to his home from his gun range              not actually fearful for his safety, the circum-
   east of Ferris, Texas.                               stances of this case would be enough objec-
                                                        tively to put a reasonable officer in fear and
The district court cannot have it both ways; its        thus to justify the instant search under Long.
finding of fact that there was a possibility that
Wallen would be returned to his vehicle estab-                                  IV.
lishes the threat of danger that justifies a Long           Miers may not have proceeded in his inves-
search, despite the fact that at the time of the        tigation of the traffic stop in the most prudent
search the defendant was handcuffed.                    manner, but his actions did not violate the
                                                        Fourth Amendment. Under Long, Miers’s
    Additionally, the district court’s rationale        search after handcuffing Wallen was valid, in
that a Long search was not permitted because            that he had reasonable objective grounds to
of its finding that Wallen was “cooperative” is         fear for his safety. As the district court found,
not compelling. The videotape demonstrates,             Miers’s sweep of the vehicle uncovered the
and the district court noted, that Wallen dis-          rifle with the allegedly short barrel. Because
obeyed Miers’s instruction to “hang tight” at           the parties do not contest that the short-barrel
the rear of the truck, and he delayed in com-           gun provided Miers with probable cause to
plying with the instruction to return when he           arrest Wallen and to search and impound the
subsequently left his position.                         remaining weapons, the silencer and the ma-
                                                        chine gun, the order suppressing them was im-
    Even if Wallen’s conduct was the result of          providently granted.
an honest misunderstanding regarding Miers’s
instructions, the conduct must be analyzed
from the officer’s perspective. See Long, 463
U.S. at 1049. From Miers’s perspective, a                  6
                                                              See Whren v. United States, 517 U.S. 806,
reasonably prudent person would be warranted            813 (1996) (“Not only have we never held . . . that
in detecting danger from these circumstances,           an officer’s motivation invalidates objectively jus-
particularly in light of the guns that were             tifiable behavior under the Fourth Amendment, but
already identified in plain view.                       we have repeatedly held and asserted to the con-
                                                        trary.”)
   The district court’s finding that Miers did             7
not in fact fear for his safety is incorrect, be-            See Baker, 47 F.3d at 694 (rejecting argument
cause the validity of the protective search is          that lack of actual fear on officer’s part invalidated
                                                        Long automobile search, because Fifth Circuit
based on objective evidence. The subjective
                                                        “has never held that an officer’s objectively reason-
motivations of police are irrelevant to deter-
                                                        able concern for safety does not justify a protective
mining whether a search or seizure is reason-           search for weapons where the officer has no actual
                                                        fear for his safety”).

                                                    6
   The suppression order is REVERSED, and
this matter is REMANDED for further pro-
ceedings as appropriate.




                                            7
