                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JAN 8 1998
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 GARY RUSSELL SMITH,

           Plaintiff-Appellant,
 v.                                                           No. 96-2164
                                                      (D.C. No. CIV 95-634 BB)
 JAMES SPAIN,                                          (District of New Mexico)

           Defendant-Appellee.




                                  ORDER AND JUDGMENT*



Before Ebel, Circuit Judge, Henry, Circuit Judge, and McWilliams, Senior Circuit
Judge.


       Pursuant to 42 U.S.C. § 1983, Gary Russell Smith filed an action in the United

States District Court for the District of New Mexico against James Spain, a police officer

for Albuquerque, New Mexico, alleging that Spain had deprived him of his Fourth

Amendment rights. Specifically, Smith claimed that Spain unlawfully detained him,

unlawfully searched a fannypack he was carrying around his waist, and then unlawfully

arrested him when marijuana and drug paraphernalia were found in the fannypack. Smith

       *
         This order and judgment is not binding precedent, except under the doctrines of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.
sought damages for the deprivation of his privacy, deprivation of his liberty in being

placed in jail, criminal prosecution, and emotional distress and depression, in an

unspecified amount, “to be determined by the fact finder.”

       By answer, Spain alleged, inter alia, that his “actions were lawful, in good faith,

and in the exercise of governmental functions entitling Officer Spain to qualified

immunity.” This claim of qualified immunity was also set forth in both the Initial Pretrial

Report and the ensuing Pretrial Order.

       Both Smith and Spain withdrew their initial requests for a jury trial, and the case

was heard by a judge, sitting without a jury. At the conclusion of Smith’s case, Spain’s

counsel moved to dismiss under Fed. R. Civ. P. 41(b) and 50, arguing, inter alia, that

Spain, a police officer, was entitled to qualified immunity. The district court, after

argument, denied the motion. The trial then proceeded on to conclusion, when the district

court took the case under advisement, and allowed counsel to file post trial briefs. In his

brief, counsel again argued, inter alia, that Spain was entitled to qualified immunity.

       The district court later made its findings and conclusions, which are in

considerable detail, and held that Spain was entitled to qualified immunity and entered

judgment in favor of Spain. Specifically, the district court concluded, inter alia, that “[a]

reasonable officer in Defendant’s position could thus have believed his conduct was

lawful and Defendant is protected by the legal doctrine of qualified immunity.” Smith

appeals. We affirm.


                                             -2-
       Initially, Smith claims that Spain “waived his qualified immunity defense . . . .”

However, it appears to us that Spain asserted a right to qualified immunity at about every

opportunity. Qualified immunity is an affirmative defense and a defendant may raise it by

a motion to dismiss, a motion for summary judgment or by answer. Further, a defendant

who unsuccessfully raises the defense of qualified immunity before trial, may thereafter

reassert such defense “at trail or after trial.” Quezada v. County of Bernalillo, 944 F.2d

710, 718 (l0th Cir. 1991).

       Certainly, the defense of qualified immunity, as such, was not waived. We are not

here concerned with whether qualified immunity was couched in any particular language.

And in any event, counsel for Smith concedes that even if it were waived, there remains

the underlying question of whether the search of Smith by Spain, and the seizure from

Smith of the marijuana and drug paraphernalia were reasonable, and therefore lawful.

Obviously, the case turns on the facts and circumstances surrounding the detention of

Smith, and the ensuing search and seizure. Basically those facts and circumstances are

not in any great dispute. We shall attempt to summarize those facts and circumstances as

briefly as possible.

       On August 13, 1994, Spain, a Sergeant with the Albuquerque Police Department,

and fellow officers Eloise Griego and Paul Montoya were engaged in an undercover

operation to detect and arrest prostitutes and their patrons in the East Central area of

Albuquerque, a so-called “high crime” area. At that time and place Spain and Griego


                                             -3-
observed a woman approaching cars on East Central Avenue in what appeared to be an

effort to solicit herself as a prostitute. The two officers detained the woman, later

identified as Marcia Shyne, for questioning. It was determined that Shyne was, in fact,

engaged in criminal solicitation and that she might have information which would lead to

other arrests. Griego placed Shyne in an unmarked police vehicle parked in the parking

lot of The Ranch, a bar located at 8900 Central Avenue, N.E. Spain thereafter arrived at

the same parking lot and parked his unmarked vehicle along side of, and next to, Griego’s

vehicle. Spain was dressed in street clothes, not a police uniform, but wore his police

badge as a neck medallion. In questioning Shyne, the two officers learned that Shyne was

part of a prostitution ring operating throughout the United States. This all occurred at

about 4:30 p.m. At about this moment, Smith approached the scene, at which time Griego

and Shyne were seated in Griego’s vehicle, and Spain was standing between the two

vehicles, which were the only vehicles in the parking lot.

       When Spain first saw Smith, the latter was walking through the parking lot in a

direction which was generally away from the two parked unmarked police vehicles.

However, when Smith saw Spain, he changed his direction and, with an angry expression

on his face, began to walk directly towards the two vehicles.1 As he neared the parked



       1
        Smith was apparently a part-time security guard at The Ranch bar, although there
is nothing to indicate that either Spain or Griego knew of this. Smith was not on duty at
the time nor was he in uniform. Rather, he was going from another bar to The Ranch to
“socialize.”

                                            -4-
vehicles, Spain, wearing his badge as a medallion around his neck, identified himself as a

police officer and, in general terms, informed Smith that a police investigation was in

progress and asked him to leave the area. Although told not to move any closer, Smith

continued to draw nearer to the investigation site. Smith had a pack of cigarettes in his

hand. Also, Smith had a fannypack around his waist, and while moving toward Spain, he

started fumbling with his fannypack as if trying to remove something therefrom. Spain

then drew his firearm and held it at a ready position at his side standing behind his police

car so that Smith could not see his weapon.

       At this point, the government concedes that Smith was not free to leave because

Spain decided that it was advisable to search Smith’s fannypack to find out whether he

had a firearm therein. Accordingly, Spain grabbed Smith and walked him to a nearby

wall. There was little resistance by Smith. After having placed Smith in a “spread eagle”

position against the wall, Spain grabbed the fannnypack from Smith’s waist, and in the

process felt what he thought was a firearm in the fannypack. Without “patting down,” as

such, the fannypack, he unzipped the fannypack and found marijuana and a marijuana

pipe therein, but no weapon. Spain then arrested Smith for possession of marijuana and

drug paraphernalia.

       At about this point, Officer Montoya arrived on the scene. He saw no cuts or

abrasions on Smith’s head or face. As the officers were still conducting their ongoing

investigation of Shyne, other officers took Smith to the local detention center. The


                                            -5-
officer who transported Smith to the center testified that he saw no cuts or abrasions on

Smith’s face. The medical technician who examined Smith at the detention center

testified that Smith had no injuries of any kind to his face, but that Smith did have an

abrasion on his elbow, and smelled of alcohol.

       The foregoing summary is based, in the main, on the district court’s findings of

fact, to which Smith, on appeal, makes no particular challenge. In fact, in his brief,

counsel for Smith stated that he “is not unhappy with the district court’s factual findings

in the trial,” and that Smith’s appeal relies, principally, on the factual findings made by

the district court. However, at the same time, counsel also argues that certain of the

district court’s findings are unsupported by the evidence.

       Government officials performing discretionary functions are given qualified

immunity which shields them from civil damages liability “as long as their actions could

reasonably have been thought consistent with the rights they are alleged to have violated,”

and further that such immunity “protects all but the plainly incompetent or those who

knowingly violate the law . . ..” Anderson v. Creighton, 483 U.S. 635, 638 (1986). In

line with Anderson, supra, in Dixon v. Richer, 922 F.2d 1456 (10th Cir. 1991) we held

that the doctrine of qualified immunity shields government officials from liability for civil

damages if their conduct does not violate clearly established constitutional rights of which

reasonable persons would have known. Our study of the record leads us to conclude that

the facts and circumstances of the case support the district court’s conclusion that Spain


                                             -6-
was entitled to qualified immunity.

       Spain, and his fellow officer, had arrested Shyne for solicitation for prostitution

and were in the process of questioning her in a parking lot adjacent to The Ranch. Spain

indicated that he was aware that prostitutes frequently have their pimp nearby monitoring

their enterprise. Smith, when first observed by Spain, was walking through the parking

lot away from the investigation site. However, when he saw Spain and the others, he

abruptly changed direction and walked straight towards Spain, Griego and Shyne. Spain

identified himself as a police officer, and wore his badge as a medallion around his neck.

Smith had a fannypack around his waist, and Spain testified that he was aware that

firearms were often carried in a fannypack, even by police officers. Spain told Smith to

“stop” and indicated he should leave the area. Smith did not stop and continued to walk

towards Spain. At that point Smith tried to unzip his fannypack and appeared to be trying

to remove an object from the fannypack. Spain’s reaction was that Smith might be going

for a weapon. It was in this general setting that Spain removed the fannypack from

around Smith’s waist and Spain testified that, in so doing, he felt an object in the

fannypack that felt like a firearm.2 Spain then inspected the fannypack, finding no

weapon therein, but finding marijuana and a marijuana pipe.

       Like the district court, we conclude that Spain’s conduct was, under the described




       N.M. Stat. Ann. § 30-7-2 (1978) (Repl. Pamp. 1994) provides that it shall be
       2

unlawful to carry a concealed loaded weapon, with certain exceptions thereto.

                                            -7-
circumstances, reasonable. The alternative for Spain was to do nothing and hope that

Smith did not have a firearm in the fannypack. The law does not require that a police

officer take such a risk, and permits a limited stop, detention and seizure if there be

“objective reasonableness.”3 The present case in our view comes well within the ambit of

Terry v. Ohio, 392 U.S. 1 (1968). As was said in Terry, the reasonableness of any search

and seizure must be assessed in light of the particular circumstances against the standard

of whether a man of reasonable caution is warranted in believing that the action taken was

appropriate. Terry, 392 U.S. at 21-22.

       We are not persuaded by United States v. Davis, 94 F.3d 1465 (10th Cir. 1996),

relied on by Smith. Davis is a criminal case in which we, on appeal, held that there was

no reasonable suspicion to justify the investigative stop and that the district court

therefore erred in denying the defendant’s motion to suppress the use at trial of the

firearm there in question. However, the facts of the instant case are different than those

in Davis. For example, the defendant in Davis was apparently walking away from the

police immediately prior to the “stop” and was posing no immediate threat, whereas

Smith, in the instant case, was walking towards the police in an angry and threatening

manner and was attempting to extract something from his fannypack. There are other

differences between the instant case and Davis, as well.


       3
        A police officer is not required to use the “least intrusive means” in a stop or
seizure case, only that he use “reasonable ones.” United States v. Melendez-Garcia, 28
F.3d 1046, 1052 (10th Cir. 1994).

                                             -8-
       In sum, in the words of Anderson v. Creighton, supra, Spain’s conduct did not

indicate that he was “plainly incompetent” nor did his actions indicate that he intended to

“knowingly violate the law.” Rather, his conduct was reasonable under the facts and

circumstances confronting him, where, in the interest of self-preservation, he had to make

split second decisions.

       Judgment affirmed.

                                          ENTERED FOR THE COURT

                                          Robert H. McWilliams
                                          Senior Circuit Judge




                                            -9-
