United States v. Wallen

United States Court of Appeals
Fifth Circuit
F I L E D
October 11, 2004
Charles R. Fulbruge III
Clerk
REVISED OCTOBER 22, 2004
In the
United States Court of Appeals
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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Richard Wallen was charged with posses-
sion of two firearms that were not registered
to him in the national registry, in violation of
26 U.S.C. § 5861(d). Alleging violation of his
Fourth Amendment rights, he successfully
moved to suppress evidence seized from his
truck. The government takes an interlocutory
appeal from the suppression order. Finding
error, we reverse and remand.
I.
Wallen’s vehicle was stopped for speeding
by Officer Bryan Miers. As Miers approached
Wallen’s vehicle, he observed what appeared
to be two rifles on the passenger side of the
truck. When Miers requested Wallen’s license
and proof of insurance, Wallen responded that
he thought they were in his wallet that was
somewhere on the passenger side of his truck.

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

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concerned that Wallen might be a sniper.
Wallen then insisted that he was merely trans-
porting the guns from his firing range and sug-
gested that the officers contact the Duncanville
Police Department to vouch for his ownership
of a shooting range.
After determining that the length of the
threaded barrel was fifteen and one-half inches,
the officers called an agent at the Bureau of
Alcohol, Tobacco, and Firearms, who in-
formed them that the possession of a barrel
shorter than sixteen inches was a violation of
federal law unless the weapon was registered.
Wallen was placed under arrest, approximately
one hour and nineteen minutes after the initial
stop, for unlawfully carrying concealed weap-
ons and the firearms violation. The police
subsequently discovered a silencer in Wallen’s
truck and established the fact that one of the
weapons was fully automatic. The entire
traffic stop was recorded by a camera in
Miers’s vehicle.
II.
The government charged Wallen with un-
lawful possession of a machine gun and a si-
lencer in violation of § 5861(d). Wallen
moved to suppress the guns, claiming an un-
reasonable search and seizure under the Fourth
Amendment. During the suppression hearing,
the parties presented the court with Miers’s
testimony and with the videotape of the stop.
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.
The government moved for reconsideration
in which it reiterated prior arguments regard-
ing the validity of the search. It contended,
inter alia, that the search was permissible un-
der Michigan v. Long, 463 U.S. 1032, 1049
(1983), which allows an officer to search the
passenger compartment of a vehicle if he has a
reasonable suspicion that the person poses a
danger and may gain immediate control of
weapons.
The court denied the motion, holding that
Long did not apply because Wallen could not
have gained control of the weapons after he
was already handcuffed and in the patrol car,
and that it was not reasonable to consider him
dangerous, because he was cooperative with
Miers. Citing Miers’s inconsistent reasons for
placing and keeping Wallen in custody, the
court concluded that the search was not a valid
protective sweep for weapons, but rather a
“rummaging through the vehicle in an effort to
find illegal firearms that could provide incrimi-
nating evidence against Wallen.” The govern-
ment appeals the denial of the motion for
reconsideration pursuant to 18 U.S.C. § 3731
and rule 4(b)(1)(B)(i), FED. R. APP. P.
III.
A.
We uphold a district court’s findings of
facts on a motion to suppress unless they are
clearly erroneous. United States v. Shabazz,
993 F.2d 431, 434 (5th Cir. 1993). Conclu-
sions of law are reviewed de novo. United
States v. Gonzales, 190 F.3d 668, 671 (5th
Cir. 1999). Findings that are in plain contra-
diction of the videotape evidence constitute
clear error.1
1 See, e.g., United States v. Jones, 234 F.3d
234, 237 n.1, 241-43 (5th Cir. 2000) (rejecting
witness testimony regarding whether an answer
aroused an officer’s suspicion, and correcting
findings regarding the time at which a transaction
occurred, because testimony and findings conflicted
with videotape evidence).

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

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

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

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

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