                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-2056
                                     ___________

United States,                       *
                                     *
          Plaintiff – Appellee,      *
                                     * Appeal from the United States
    v.                               * District Court for the
                                     * District of Minnesota.
Thomas Daniel Stachowiak,            *
                                     *
          Defendant – Appellant.     *
                                ___________

                              Submitted: January 15, 2008
                                 Filed: April 3, 2008
                                  ___________

Before BYE, BEAM and GRUENDER, Circuit Judges.
                          ___________

BYE, Circuit Judge.

       Thomas Daniel Stachowiak appeals his conviction for possession with intent
to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841
(b)(1)(B). A limited protective search of his vehicle during a traffic stop led to a
police officer's discovery and seizure of methamphetamine and a scale. Stachowiak
contends the search of his vehicle was unconstitutional and appeals the district court's1
denial of his motion to suppress all evidence discovered subsequent to the initial


      1
        The Honorable James Rosenbaum, Chief United States District Judge for the
District of Minnesota, adopting the Report and Recommendation of the Honorable
Janie S. Mayeron, United States Magistrate Judge for the District of Minnesota.
search. Based on the totality of the circumstances, we conclude the police officer had
reasonable suspicion to believe the appellant was presently armed and dangerous and
the protective search of him was justified. We affirm.

                                            I

       On December 15, 2003, a reliable confidential informant (CI) informed the
St. Paul Police Department as to Stachowiak selling more than one and a half pounds
of crystal methamphetamine each day. The CI stated he had been engaged in the
illegal sale of narcotics from his residence and other prearranged locations since June
2003. The CI stated he regularly carried firearms and had personally observed him
with a firearm in November 2003, while he was in the appellant's residence. The CI
provided a physical description of Stachowiak, described his car as a bluish-green
Dodge Intrepid, and identified his residence.

      Another member of the police force relayed this information regarding
Stachowiak to Officer Mark Nelson, a St. Paul patrol officer. On December 30, 2003,
Officer Nelson parked his marked squad car approximately two blocks away from
appellant's residence. This officer observed him exit his residence and drive away in
a green Dodge Intrepid and followed him.

       The officer observed Stachowiak violate Minnesota Statute Section 169.19,
subd. 5, by failing to signal a hundred feet prior to his turn into a Burger King parking
lot where the officer conducted a traffic stop. The officer's decision to make the stop
was based on the illegal turn, the appellant's "erratic" driving behavior,2 and the
officer's belief he might be in possession of illegal drugs. Law enforcement backup
was requested based on a concern Stachowiak might be carrying a firearm. The


      2
       Officer Nelson testified he found Stachowiak's driving behavior to be erratic
because he immediately changed lanes when the officer pulled in behind him.

                                          -2-
appellant exited his vehicle, and the police officer motioned for him to return. He
complied and sat in his vehicle with the driver's door open. The officer next observed
him lean forward and reach under the front seat as if he were either concealing or
retrieving something.

       Officer Nelson believed Stachowiak was hiding something as he exhibited signs
of extreme nervousness, e.g., his hands were shaking as he handed over his driver's
license. The officer instructed him to step out of the car for the purpose of conducting
a limited pat down and to view the driver's side seat for possible weapons.
Stachowiak refused. The officer retrieved an aerosol restraint and advised he would
spray the appellant if he did not comply. He did get out of the vehicle, but then
immediately attempted to pull away from the police officer. With the assistance of a
backup officer, Stachowiak was brought to the ground and handcuffed. The officers
frisked him for weapons and placed him in the back of a squad car. Because Officer
Nelson was planning to release Stachowiak after issuing him a traffic citation, Officer
Nelson conducted a protective search of Stachowiak's vehicle, to ensure Stachowiak
would not have immediate access to a weapon when he returned to his vehicle. The
officer discovered a plastic tupperware container under the driver's seat, where the
appellant was earlier observed reaching. Inside the container, the officer found
several bags of methamphetamine and a scale. Thereupon, he placed Stachowiak
under arrest.

      Based on the evidence found in Stachowiak's vehicle, the St. Paul police force
obtained and executed a search warrant at his residence. There they seized large
quantities of narcotics and cash and later obtained a confession. Stachowiak moved
to suppress all of the evidence, contending it was the fruit of an illegal search of his
vehicle during a traffic stop.

      Upon conducting an evidentiary hearing, the magistrate judge filed a report
finding the officer retained the requisite suspicion to conduct a protective search and,

                                          -3-
additionally, had probable cause to search Stachowiak's vehicle under the automobile
exception to the warrant requirement. The district court adopted the magistrate judge's
report and recommendation and denied Stachowiak's motion to suppress. He
thereafter plead guilty to one count of possession with intent to distribute
approximately 213 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(B), while reserving his right to appeal all pretrial matters. He was
sentenced to 124 months in prison.

                                            II

       In considering an appeal from the denial of a motion to suppress, we review the
district court's factual findings for clear error and its legal determinations de novo.
United States v. Wells, 223 F.3d 835, 838 (8th Cir. 2000). We are required to affirm
the district court's denial of a motion to suppress "unless it is unsupported by
substantial evidence, based on an erroneous interpretation of the law, or, based on the
entire record, it is clear that a mistake was made." United States v. Gladney, 48 F.3d
309, 312 (8th Cir. 1995) (quotation omitted).

        A stop of a motor vehicle is a seizure under the Fourth Amendment. Delaware
v. Prouse, 440 U.S. 648, 653 (1979). As such, an officer must have "at least
articulable and reasonable suspicion" of illegal activity to stop a motor vehicle. Id.
at 663. It is well established a minor traffic violation provides probable cause for a
traffic stop, even if it is mere pretext for a narcotics search. United States v. Williams,
429 F.3d 767, 771 (8th Cir. 2005). Stachowiak concedes he made an illegal turn,
which objectively justified the stop. See Whren v. United States, 517 U.S. 806, 813
(1996); United States v. Thomas, 93 F.3d 479, 485 (8th Cir. 1996) ("[S]o long as
police have probable cause to believe that a traffic violation has occurred, the stop is
valid even if the police would have ignored the traffic violation but for their suspicion
that greater crimes are afoot.")



                                           -4-
       In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court first considered the
constitutional limitations on the power of police officers to “stop and frisk” suspicious
persons. The Court held a protective search for weapons is constitutional, even in the
absence of traditional fourth amendment probable cause, “where a police officer
observes unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom he is
dealing may be armed and presently dangerous.” Id. at 30. The Supreme Court later
recognized "investigative detentions involving suspects in vehicles are especially
fraught with dangers to police officers" and extended the principle of the Terry frisk
to the passenger compartment of a vehicle, "limited to those areas in which a weapon
may be placed or hidden." Michigan v. Long, 463 U.S. 1032, 1047-49 (1983).

       "At any investigative stop – whether there is an arrest, an inventory search,
neither, or both – officers may take steps reasonably necessary to protect their
personal safety." United States v. Shranklen, 315 F.3d 959, 961 (8th Cir. 2003). In
a case such as this – where an officer has temporarily removed a suspect from his
vehicle, but is not planning to arrest him – the officer is permitted to conduct a limited
protective search of the vehicle before releasing a suspect to ensure he will not be able
to gain immediate control of a weapon. See id. (holding, under the principles of
officer safety outlined in Terry v. Ohio, 392 U.S. 1 (1968), it was reasonable for an
officer to search a pouch, which was hidden under the seat of defendant's car and
might have contained a weapon); United States v. Peoples, 925 F.2d 1082, 1087 (8th
Cir.) (concluding "the officers' act of immobilizing the suspects outside the van did
not obviate the necessity of the search" where the suspects were not under arrest and
"would have been free to reenter the van and pose a danger to the officers.") (citations
omitted), cert. denied, 502 U.S. 938 (1991). If, while conducting a valid search under
Terry and Long, officers discover drugs instead of a weapon, the fourth amendment
does not require the drug-related evidence to be suppressed. Peoples, 925 F.2d at
1087 (citing Long, 463 U.S. at 1050).



                                           -5-
       Stachowiak argues Officer Nelson did not have reasonable, articulable
suspicion to believe he was armed and dangerous and thus had no authority to conduct
a protective search of his vehicle for weapons. The critical inquiry 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." United States v. Roggeman, 279 F.3d 573, 578
(8th Cir. 2002). In this case, the officer had information from a reliable CI about
Stachowiak regularly carrying firearms. He had observed the appellant's driving
behavior, which the officer believed indicated Stachowiak was trying to "dodge" him.
He then observed the nervous behavior and the furtive gesture under the seat.

       Stachowiak concedes the furtive gesture might arouse some suspicion, but
argues it is the single piece of support the government has for its position, and is
insufficient to meet the reasonable, articulable suspicion standard. Stachowiak
argues: the information from the CI was stale and could no longer be relied upon; a
reasonable person would not find switching lanes and signaling a turn at twenty feet,
instead of a full one hundred feet, erratic driving; and there is nothing suspicious
about nervous behavior when being stopped and questioned by a police officer.

       To determine whether a seizure was conducted within the parameters of Terry,
we must determine whether the facts collectively provide a basis for reasonable
suspicion, rather than determine whether each fact separately establishes such a basis.
Peoples, 925 F.2d at 1085 (citing United States v. Cortez, 449 U.S. 411, 417 (1981)).
While the officer's subjective perceptions of the driver's nervous behavior or evasive
driving standing alone may not be sufficient to constitute a reasonable, articulable
suspicion, when taken with the other factors, they contribute to the suspicion. See
United States v. Juvenile TK, 134 F.3d 899, 903 (8th Cir. 1998) (stating "police are
entitled to be suspicious of vehicular movement that, while not illegal, may be
reasonably perceived as evasive"); United States v. Bloomfield, 40 F.3d 910, 918-19
(8th Cir. 1994) (explaining nervousness and other subjective perceptions are valid
factors supporting reasonable suspicion).

                                         -6-
       First, we reject the contention the information Stachowiak sells drugs and
regularly carries firearms was stale. There is no bright-line test for determining when
information is stale. United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993).
Simply counting the numbers of days between the occurrence of the facts supplied and
the issuance of the affidavit is not sufficient. Id. (citing United States v. McCall, 740
F.2d 1331, 1336 (4th Cir. 1994)). Time factors must be examined in the context of
a specific case and the nature of the crime under investigation. Id. In this case, the
police department received the relevant information two weeks prior to Stachowiak's
arrest from a CI who had personally seen Stachowiak with a firearm within the last
month. See United States v. Hartje, 251 F.3d 771, 775 (8th Cir. 2001) (holding a drug
transaction one month prior to the warrant application was not stale information in
light of the ongoing nature of the crime). Given the ongoing nature of Stachowiak's
armed drug trafficking, having occurred regularly for at least six months, the two-
week period between the traffic stop and the police department's receipt of the firearm
information did not render the information stale.

       Second, we find the knowledge Stachowiak was likely to be armed, coupled
with the observation of his furtive gesture, was more than sufficient to lead a
reasonable officer to believe his safety could be in danger. We also note he refused
to cooperate with the officers and had to be forceably removed from his vehicle and
handcuffed. See Peoples, 925 F.2d at 1087 (finding suspect's refusal to comply with
officers' instructions contributed to a reasonable suspicion suspects were engaged in
criminal activity and were potentially dangerous). Considering the totality of the
circumstances, we hold the police officer had reasonable suspicion to believe
Stachowiak was presently armed and dangerous and therefore determine his protective
search was justified.




                                          -7-
                                          III

       Additionally, the appellant challenges the district court's finding the police
officer had probable cause to search his vehicle under the automobile exception to the
warrant requirement. Because we conclude the search was a proper limited protective
search under Terry, we decline to address this argument.

                                          IV

       After a careful examination of the record in light of the standards set forth, we
cannot say the district court clearly erred in finding Officer Nelson had reasonable,
articulable suspicion to conduct a limited protective search. The evidence obtained
during the search of Stachowiak's vehicle was admissible. The conviction is affirmed.
                        ______________________________




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