                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                    UNITED STATES COURT OF APPEALS                    June 28, 2007
                             FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk
                              No. 06-30726


                      UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellant,

                                 versus

                     NICHOLAS JOSEPH DARENSBOURG,

                                                       Defendant-Appellee.


            Appeal from the United States District Court
                for the Middle District of Louisiana
                            (3:05-CR-124)


Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

     The Government’s interlocutory appeal concerns the district

court’s granting Nicholas Darensbourg’s motion to suppress evidence

seized as a result of a patdown search (patdown).             REVERSED       and

REMANDED.

                                   I.

     In   January   2005,   Officers    engaged   in    a   narcotics     sting

operation arrested Fitzgerald for possession of over 100 3,4

methylenedioxymethamphetamine (MDMA) pills (also known as ecstacy),



     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
marijuana, and a loaded handgun. After his arrest, Fitzgerald gave

Officers permission to search for contraband in his bedroom in a

house under surveillance.

       When Officers arrived at that house, they found Aycock and

Darensbourg playing video games.                Aycock confirmed he was the

homeowner and Fitzgerald lived there; stated he had no knowledge of

Fitzgerald’s involvement in narcotics trafficking; and consented to

the house’s being searched.

       Prior to the search, Officers advised Aycock and Darensbourg

they    would   be   patted   down       for   officer   safety.    Before   they

commenced the patdown, however, Darensbourg stated he had a small

bag of marijuana in his trousers’ pocket.                  He was subsequently

arrested and read his Miranda rights. In searching Darensbourg, in

addition to the marijuana, Officers found $840 and keys to his

vehicle parked outside.       Officers contend Darensbourg consented to

his vehicle’s being searched, a claim he disputes.                 In any event,

a search of the vehicle revealed various quantities of ecstacy

pills and powder.

       Officers then called a Deputy, who confirmed he was related to

Darensbourg. After speaking with Darensbourg on the telephone, the

Deputy informed Officers that Darensbourg admitted he had more than

1,000 ecstasy pills in his apartment, as well as large sums of

cash.     Officers     obtained      a    search   warrant   for   Darensbourg’s

apartment, based on the vehicle search and Darensbourg’s statements


                                           2
to   the   Deputy.    At   Darensbourg’s   apartment,   they    recovered

ammunition, approximately 4,000 ecstacy pills, and $9,000.

      Darensbourg was indicted in June 2005 for:        possession with

intent to distribute MDMA, in violation of 21 U.S.C. § 841(a)(1);

possession of marijuana, in violation of 21 U.S.C. § 844(a); and

possession of ammunition by a convicted felon, in violation of 18

U.S.C. § 922(g)(1).    He moved to suppress, claiming:         he did not

give consent to his vehicle’s being searched; and the subsequent

search of his apartment was tainted by the unlawful vehicle search.

Darensbourg did not challenge the constitutionality of the patdown.

      In granting the suppression motion in March 2006, the district

court stated that both parties had “given short shrift to the

critical chain of events”: namely, the patdown, which precipitated

the two subsequent searches.     The court held, sua sponte, that the

patdown did not meet the requirements of Terry v. Ohio, 392 U.S. 1

(1968).    In short, in granting relief, the court went outside the

claims presented in the suppression motion.

      In so holding, the court noted the Government failed to

provide any articulable facts that would have justified finding

Darensbourg was armed and dangerous before conducting the patdown.

In this regard, the court found Darensbourg and Aycock were very

cooperative.    And, based on holding the patdown unconstitutional,

the marijuana seized as a result of it was suppressed.          Moreover,

the subsequent searches of Darensbourg’s vehicle and apartment were


                                   3
held tainted by the initial constitutional violation concerning the

patdown, and the evidence seized in those searches was likewise

suppressed.

      The Government moved for reconsideration, asking for a new

evidentiary hearing and claiming: because the constitutionality of

the patdown was not challenged by Darensbourg, they were not able

to introduce evidence at the suppression hearing to show the

reasonable justification for it.               The Government also contended

that, even without another hearing, it had presented sufficient

evidence    to    show      Officers      had     the     following     reasonable

justification to perform the patdown:              they knew, as part of their

sting operation, that Fitzgerald had just left the house where

Darensbourg was located to perform a drug transaction, armed with

a concealed weapon, and this gave them reason to believe the

occupants    of   that    house    were   also    drug    traffickers     who    were

possibly armed.          In the alternative, the Government asserted:

Darensbourg’s voluntary statement to Officers that he had marijuana

gave them independent probable cause to arrest and search him; or

the   evidence    at   issue      could   be    seized    under   the   good-faith

exception to the exclusionary rule.

      In   June   2006,    the    district      court    denied   the   motion   for

reconsideration.         (The district court’s authority to rule on an

issue not raised by Darensbourg is questionable.                  Needless to say,

Darensbourg was the master of his suppression motion.                       In any



                                          4
event, before ruling on an issue it raised sua sponte, the court

should have granted the Government’s request for a hearing to

present evidence concerning the Officers’ basis for the patdown.

Perhaps the district court believed the record contained enough

evidence to rule without an additional hearing.               In issuing such

sua sponte rulings, however, district courts should ensure the

parties have an opportunity to present their contentions and

evidence, so that factual and legal questions are developed fully.)

                                    II.

     For a suppression-motion ruling, findings of fact are reviewed

for clear error; conclusions of law, de novo.              E.g., United States

v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000).              Evidence introduced

at a suppression-motion hearing is viewed, of course, in the light

most favorable to the prevailing party.              Id.

     The   primary   issue   at   hand    is   the   reasonableness    of    the

patdown. Under Terry, a law-enforcement officer may briefly detain

and frisk an individual, as long as the officer has a reasonable,

articulable suspicion of criminal activity.            392 U.S. at 30.      “The

officer need not 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. at 27 (emphasis added).

Accordingly, for determining reasonable-suspicion vel non, a court

must consider the totality of the circumstances.              United States v.

                                     5
Arvizu, 534 U.S. 266, 273 (2002). “This process allows officers to

draw on their own experience and specialized training to make

inferences from and deductions about the cumulative information

available to them that might well elude an untrained person.”                   Id.

(internal citations and quotation marks omitted).

       In granting the suppression motion, the district court relied

on Ybarra v. Illinois, 444 U.S. 85, 91 (1979), for the proposition

that   Darensbourg    and    Aycock’s        presence   in   the   home    where   a

narcotics search was to take place, without more, did not provide

individualized suspicion that Darensbourg was either involved in

drug    trafficking    or     armed      and     dangerous.         Ybarra     held

unconstitutional the search of a bar patron, which occurred during

the execution of a search warrant authorizing searching the tavern

and a bartender for heroin possession.                  Id. at 88.        The Court

agreed that police officers had a valid warrant to search the

premises, but that warrant “gave them no authority whatever to

invade the constitutional protections possessed individually by the

tavern’s customers”.        Id. at 92.

       The circumstances at hand are markedly different.                     We are

mindful that “a person’s mere propinquity to others independently

suspected of criminal activity does not, without more, give rise to

probable cause to search that person”.            Id. at 91 (emphasis added);

see also United States v. Cole, 628 F.2d 897, 899 (5th Cir. 1980)

(mere presence at a dwelling suspected of containing narcotics, by

                                         6
itself, is not enough to establish reasonable suspicion).                In

Ybarra the bar patrons had no relationship with the bar or the

bartender — therefore, searching the individuals present at that

bar did not comport with Terry’s requirement for reasonable,

articulable suspicion.

     In contrast, occupants of a house generally have a closer

relationship,    and   it   is   not       unreasonable   to   think   their

relationship might extend to involvement in illegal activities.

(Although it was later determined that Darensbourg did not reside

at the house, the Officers did not know that previous to the

patdown.)     Along that line, the Officers had been conducting

surveillance of the house and had just arrested Fitzgerald, who, a

short time before, had exited the house carrying a large quantity

of drugs and a loaded handgun.     Based on these factors, reasonable

officers could believe that Darensbourg and Aycock could also have

been involved in drug trafficking and were therefore possibly armed

as well.     E.g., United States v. Majors, 328 F.3d 791, 795 (5th

Cir. 2003) (“[F]irearms are tools of the trade for those engaged in

illegal drug activities.” (internal citations and quotation marks

omitted)); see also United States v. Reid, 997 F.2d 1576, 1579

(D.C. Cir. 1993) (defendant’s proximity to drug apartment being

searched and the officer’s concern for safety justified Terry

frisk).     The patdown was reasonable.         (Accordingly, we need not




                                       7
consider the earlier described, alternative claims raised by the

Government.)

     The district court held the patdown tainted the two subsequent

searches     and   seizures   involving   Darensbourg’s   vehicle    and

apartment.     Therefore, among other proceedings on remand, the

district court is to rule on the contested validity of those two

searches and seizures.

                                  III.

     For the foregoing reasons, the suppression ruling is REVERSED

and this matter is REMANDED for further proceedings.

                                             REVERSED AND REMANDED




                                    8
