                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-4043
                         ___________________________

                              United States of America,

                        lllllllllllllllllllll Plaintiff - Appellant,

                                            v.

                                  Shawn K. Morgan,

                       lllllllllllllllllllll Defendant - Appellee.
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                              Submitted: June 11, 2013
                              Filed: September 10, 2013
                                   ____________

Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.
                        ____________

COLLOTON, Circuit Judge.

       A grand jury indicted Shawn K. Morgan for possession with intent to distribute
five grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1). Morgan moved to suppress evidence that was seized from his person and his
vehicle, and statements he made after law enforcement officers read Morgan his
Miranda rights. The district court granted the motion, and the government appeals.
We reverse the district court’s order, and remand for further proceedings.

                                           I.

      At approximately 12:45 a.m. on April 17, 2012, Officers Aram Normandin and
Josh Downs of the Omaha Police Department were patrolling 24-hour businesses in
response to robberies in the area. In their patrol car, the officers observed a vehicle
with tinted windows parked at the far corner of a grocery store parking lot.
Normandin testified that the occupants of the vehicle were “ducked down,” so he and
Downs “decided to get out and see what was going on.” As the officers approached
the vehicle, the person in the driver’s seat sat up and reached under his seat with both
hands.

      Normandin and Downs pointed their service weapons at the occupants of the
parked vehicle and ordered them to show their hands. The driver, Morgan, initially
kept his hands under his seat, but he complied with a second command to raise his
hands. The officers then removed Morgan and the other two occupants from the
vehicle. By that time, two more police officers had arrived at the scene.

      The officers handcuffed all three occupants and seated them on a curb away
from the car. Normandin testified that he was concerned that there was a weapon
under Morgan’s seat, so he immediately searched the vehicle. When he reached
under the driver’s seat of the vehicle, Normandin felt a lockbox that was large enough
to conceal a handgun. Normandin said that he removed the lockbox from the car and
asked Morgan, “What is this?” Morgan replied, “There’s meth in there, and I’m a
dealer.”

     Based on this response, the officers advised Morgan of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). Normandin opened the lockbox and found

                                          -2-
methamphetamine and a container with a white powdery substance. Morgan then told
the officers that he was a drug dealer from Fremont, Nebraska, and that the
methamphetamine in the lockbox was for a drug deal in Omaha. When Normandin
asked Morgan what was the white powdery substance, Morgan replied that it was
cocaine.     After the substances in the lockbox field-tested positive for
methamphetamine and cocaine, Normandin arrested Morgan. In addition to the
drugs, the officers retrieved $1780 in cash.

       The district court suppressed the physical evidence and Morgan’s postwarning
statements to law enforcement. The court concluded that the officers exceeded the
permissible scope of an investigative stop under Terry v. Ohio, 392 U.S. 1 (1968),
and that Morgan’s unlawful arrest led directly to the seizure of the physical evidence
and the making of the inculpatory statements. The government appeals. We consider
the question of reasonable suspicion de novo and review findings of fact for clear
error. Ornelas v. United States, 517 U.S. 690, 699 (1996).

                                          II.

                                          A.

       A law enforcement officer may detain a person for investigation without
probable cause to arrest when the officer “has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot.’” United States v. Sokolow, 490
U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30). “Whether the particular facts known
to the officer amount to an objective and particularized basis for a reasonable
suspicion of criminal activity is determined in light of the totality of the
circumstances.” United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir. 1994). Once
reasonable suspicion is established, law enforcement officers may conduct a
protective search of a vehicle’s interior, whether or not the occupants have been
removed from the vehicle, because “if the suspect is not placed under arrest, he will

                                         -3-
be permitted to reenter his automobile, and he will then have access to any weapons
inside.” Michigan v. Long, 463 U.S. 1032, 1052 (1983). While Arizona v. Gant, 556
U.S. 332 (2009), clarified the limits of an officer’s authority to search a vehicle
incident to arrest after the arrestee has been secured, Gant expressly recognized the
continuing vitality of Michigan v. Long, and identified protective searches of a
vehicle based on reasonable suspicion of dangerousness as an “established exception
to the warrant requirement.” Id. at 346.

       The officers had reasonable suspicion to detain Morgan under Terry. While
patrolling a 24-hour grocery store in an area where there had been recent robberies
of 24-hour businesses, the officers observed a vehicle with tinted windows that was
parked far away from the store entrance. It was late at night, and they noticed that the
occupants of the vehicle were attempting to conceal themselves. As Normandin
approached the vehicle, Morgan made furtive gestures under his seat with both hands.
And Morgan refused to remove his hands from under the seat when Normandin first
ordered him to do so. Taken together, these factors amount to reasonable suspicion
that Morgan was engaged in criminal activity, and a reasonable belief that Morgan
was dangerous. See United States v. Martinez-Cortes, 566 F.3d 767, 771 (8th Cir.
2009) (where occupants of vehicle did not promptly comply with police command to
show their hands, and driver moved his arms as if to hide something, “[t]hese furtive
actions gave the officers reason to suspect . . . that criminal activity was afoot, and
that the occupants might be a risk to officer safety unless detained . . . .”).

       The principle announced in Terry has been extended to include vehicle
searches. Long, 463 U.S. at 1049. Morgan’s furtive gestures under his seat as the
officers approached the vehicle gave them reason to believe that there was a weapon
in the vehicle that Morgan might access when the Terry stop ended and he was
permitted to return to the vehicle. This objectively reasonable concern for officer
safety justified Normandin’s immediate protective sweep under the driver’s seat of
the vehicle. United States v. Smith, 645 F.3d 998, 1002 (8th Cir. 2011). Because

                                          -4-
reasonable suspicion was established, the officers’ search of the vehicle’s interior was
permitted even though the occupants had been removed from the vehicle. Long, 463
U.S. at 1052. Normandin also was authorized to search the lockbox he found in the
vehicle, which was large enough to conceal a weapon, because a valid search under
Long extends to closed containers found in the vehicle’s passenger compartment. Id.
at 1049; see United States v. Shranklen, 315 F.3d 959, 962-63 (8th Cir. 2003).




                                          B.

       The scope of a Terry stop is limited, and an investigatory detention “may turn
into an arrest if it lasts for an unreasonably long time or if officers use unreasonable
force.” United States v. Donnelly, 475 F.3d 946, 953 (8th Cir. 2007) (internal
quotation omitted). In determining whether a detention is too long to be justified as
a Terry stop, we consider whether the officers “diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly.” United
States v. Sharpe, 470 U.S. 675, 686 (1985). There is no bright line rule; instead,
“common sense and ordinary human experience must govern over rigid criteria.” Id.
at 685; see United States v. Place, 462 U.S. 696, 709 (1983).

       While officers should employ the least intrusive means reasonably available
to verify or dispel their suspicions, see Florida v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion), they may take any additional steps that are “reasonably necessary
to protect their personal safety . . . during the course of the stop.” United States v.
Hensley, 469 U.S. 221, 235 (1985). Police officers reasonably may handcuff a
suspect during the course of a Terry stop to protect their personal safety. Smith, 645
F.3d at 1002-03; United States v. Navarrete-Barron, 192 F.3d 786, 791 (8th Cir.
1999).



                                          -5-
      In the circumstances of this case, the limits of a Terry stop were not exceeded
when Morgan was removed from the vehicle and handcuffed, and Normandin
conducted a protective sweep of the vehicle. The officers had established reasonable
suspicion and had reason to believe that Morgan was dangerous, and Normandin
searched the vehicle for weapons immediately after securing Morgan. The officers
did not use unreasonable force and did not hold Morgan for an unreasonably long
time.

       A Terry stop involves a police investigation “at close range,” Terry, 392 U.S.
at 24, and it is reasonable for officers to fear for their safety—even when a suspect
is secured—because the suspect will be permitted to return to his vehicle and to
access any weapons inside at the end of the investigation. Long, 463 U.S. at 1051-52.
The officers were “acting in a swiftly developing situation,” Sharpe, 470 U.S. at 686,
and were authorized to take reasonable steps to protect their safety during and
immediately after the Terry stop. Hensley, 469 U.S. at 235.

                                         III.

       The next question on appeal is whether the physical evidence and Morgan’s
statements later in the encounter—that he was a drug dealer in Fremont, Nebraska,
that the methamphetamine was for a drug deal in Omaha, and that the white substance
was cocaine—are admissible. The district court concluded that the physical evidence
and statements were obtained as a result of an unlawful arrest in violation of the
Fourth Amendment, and thus were inadmissible fruits of the poisonous tree under
Wong Sun v. United States, 371 U.S. 471 (1963). As explained, however, we disagree
that there was an unlawful arrest, so the district court’s rationale does not justify
suppression of the evidence and statements.

      The government does not challenge the district court’s suppression of the
statement Morgan made before the officers advised him of his Miranda rights—i.e.,

                                         -6-
that there was methamphetamine in the lockbox and that Morgan was a dealer. The
question then arises whether the physical evidence and later statements must be
suppressed as the fruits of a conceded Miranda violation.

        In United States v. Patane, 542 U.S. 630 (2004), the Supreme Court ruled that
a violation of the Miranda rule does not justify the suppression of physical evidence
that is the fruit of custodial interrogation conducted without Miranda warnings. Id.
at 642-44 (plurality opinion); id. at 644-45 (Kennedy, J., concurring in the judgment).
Therefore, the methamphetamine and cocaine Normandin found in the lockbox, and
the $1780 in cash the officers retrieved, should not be suppressed.

       Warned statements elicited after an initial Miranda violation may be
admissible, so long as officers do not purposefully elicit an unwarned confession
from a suspect in an effort to circumvent Miranda requirements. Missouri v. Seibert,
542 U.S. 600, 604 (2004) (plurality opinion); id. at 622 (Kennedy, J., concurring in
the judgment); United States v. Torres-Lona, 491 F.3d 750, 757-58 (8th Cir. 2007)
(treating Justice Kennedy’s concurrence as “controlling”). When officers have made
no such calculated effort to elicit a confession, Seibert is not implicated, and the
admissibility of postwarning statements is governed by the principles of Oregon v.
Elstad, 470 U.S. 298 (1985). See Torres-Lona, 491 F.3d at 758; Seibert, 542 U.S. at
622 (Kennedy, J., concurring in the judgment). Here, Morgan does not argue that
Normandin’s question about the lockbox was “a designed, deliberate, intentional, or
calculated circumvention of Miranda,” United States v. Black Bear, 422 F.3d 658,
664 (8th Cir. 2005), and there is no significant evidence that the officer deployed
such a strategy. So Morgan’s warned statements are admissible if his waiver of rights
was voluntary, knowing, and intelligent. Elstad, 470 U.S. at 318.

      After the officers read Morgan his Miranda rights, Morgan volunteered that he
was a drug dealer from Fremont who sold drugs in Omaha. Normandin then asked
Morgan what was the white powdery substance in the lockbox, and Morgan replied

                                         -7-
that it was cocaine. “[T]here is no contention that [Morgan] did not understand his
rights; and from this it follows that he knew what he gave up when he spoke.”
Berghuis v. Thompkins, 130 S. Ct. 2250, 2262 (2010). No evidence suggests that
these postwarning statements were coerced, compelled, or otherwise involuntary. We
therefore conclude that Morgan’s postwarning statements are admissible.

                                  *       *       *

      For these reasons, the order of the district court suppressing physical evidence
and statements is reversed, except with respect to the statement that Morgan made
before the administration of Miranda warnings. The case is remanded for further
proceedings.
                       ______________________________




                                         -8-
