*

Honorable Richard Mills, U.S. District Judge for the

Central District of Illinois, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-8492.

UNITED STATES of America, Plaintiff-Appellee,

v.

Mary Lee BANSHEE, a/k/a Mary Lee Johnson, Defendant-Appellant.

June 18, 1996.

Appeal from the United States District Court for the Southern

District of Georgia. (No. CR294-52-1), Anthony A. Alaimo, Judge.

Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,

and MILLS*

, District Judge.

OPINION

RICHARD MILLS, District Judge:

Motion to suppress.

Denied below.

Appealed.

We affirm.

I. FACTS

Following a jury trial in which she was convicted of

Possession with Intent to Distribute Cocaine (21 U.S.C. §

841(a)(1)) and violating the Travel Act (18 U.S.C. § 1952(a)(3),

Mary Lee Banshee was sentenced to 97 months imprisonment. The only

issue on appeal is whether the district court properly denied a

motion to suppress cocaine found during a search. Although for

different reasons than those employed by the district court, we

conclude the search was lawful.
 1

We commend the use of video tape by police officers. It is

a great benefit to the community, the courts, and the police. 

At approximately 5:00 a.m. on July 31, 1994, Mary Lee Banshee

and Lee Ann Johnson were passengers in a rented car being driven by

Kenneth Parker northbound on I-95 in Camden County, Georgia.

Because the car was being operated with the high-beam lights on

when there was traffic in the southbound lane, Deputy Sheriff

William Todd stopped the vehicle. The traffic stop was both video

and audio taped.1

When he stopped the car, Deputy Todd approached and told

Parker to get out of the car. Once Parker got out, Deputy Todd

asked him for his license. Parker failed to present a license but

said he lived in South Carolina and had a license from the District

of Columbia. Parker also told Deputy Todd that he and his

passengers were enroute from a vacation in Miami, Florida and that

his girl friend, Banshee, had rented the car.

While a second officer instituted a computer records check,

Deputy Todd approached Banshee who was in the passenger seat. In

response to Deputy Todd's questions, Banshee stated that a friend

had rented the car and that they were returning from Orlando,

Florida where they had gone to Disney World. Banshee indicated

that Orlando was as far south as the trio had traveled.

The computer check revealed that Parker did not have a license

from either South Carolina or from the District of

Columbia—although the problem may have been with Parker's first

name. Nevertheless, Deputy Todd only issued a warning ticket,

instructed Parker that someone else would have to drive, and told
Parker he was free to go.

Before Parker could leave, however, Deputy Todd asked Parker

for consent to search the car. Parker gave his consent.

Thereafter, Parker was quickly frisked and Deputy Todd approached

the passengers. Johnson exited the vehicle first. When she did,

Deputy Todd asked her if she had any weapons. Johnson replied that

she did not. Deputy Todd then directed her, without conducting a

frisk, to wait behind the car with Parker.

Deputy Todd then told Banshee to get out of the car. When

Banshee got out, Deputy Todd noticed a bulge in her midsection and

asked her if she had any weapons or "anything" on her person.

Banshee replied that she did not. Deputy Todd then asked her to

"turn around and let me see." When she did, Deputy Todd asked:

"you ain't got nothing stuck here?" In response, Banshee stated

that she was pregnant.

Deputy Todd then remarked to the other officer: "if they got

anything she got it on her—she's saying she's pregnant. She, She

got it on her ... I can see it, she got it on her. Go ahead start

searching [the car]." Thereafter, without frisking Banshee, Deputy

Todd directed her to the rear of the rented vehicle and Deputy Todd

got in his car.

Once in his car, Deputy Todd got on the radio and asked for a

female officer to conduct a search. In so doing, he stated: "man,

I think I got another one here, uh, concealed though to where I'm

not going to be able to get to it without a female." No female

officers, however, were available. Deputy Todd then exited his

vehicle and performed a pat-down of Banshee's mid-section. After
doing so, he directed Parker and Johnson to get on the ground and

he handcuffed Banshee.

Once she was handcuffed, Deputy Todd asked Banshee what she

was concealing. Banshee replied that it was something her boy

friend had given her. Deputy Todd then removed one of Banshee's

hands from the handcuffs and told her to put the package that she

was concealing on the hood of the police car. Deputy Todd then

again handcuffed Banshee and proceeded to open the package which

was wrapped in tape. The package field-tested positive for cocaine

and was eventually found to contain 728.7 grams of cocaine.

II. DISTRICT COURT FINDINGS

After Banshee timely moved to suppress the cocaine, a hearing

was held before United States Magistrate Judge James E. Graham.

Following the hearing, Magistrate Judge Graham issued a very

detailed 22-page recommendation to the district court. The basis

of the recommendation was that: (1) the stop was not pretextual;

(2) the scope of the stop was permissible; (3) consent to search

the car was given; (4) the pat-down search of Banshee was proper

under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968); (5) Deputy Todd was entitled to seize the cocaine package

because he believed the package was contraband; (6) the detention

was proper under Terry; and (7) the search of the package was

lawful because when Deputy Todd opened the package there was

probable cause to arrest Banshee. The district court accepted the

recommendation and denied the motion to suppress.

On appeal, Banshee contends that the stop was pretextual and

that Deputy Todd lacked reasonable suspicion much less probable
cause to detain, frisk, and search her. Alternatively, she argues

that even if Deputy Todd had a reasonable suspicion, the stop

elevated into an unlawful arrest, and the search exceeded anything

permitted under Terry. Finally, she maintains that the warrantless

search of the package was impermissible.

III. ANALYSIS

We find that the lower court's findings on the issues of the

alleged pretextual stop and the search of the cocaine package,

after it was on the hood of the car, are fully supported by the

record and the law. Accordingly, those two issues do not need

additional discussion. The Terry related issues, however, warrant

discussion.

According to the Supreme Court, an officer can conduct a

protective pat-down for weapons if "a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or

that of others was in danger." Terry v. Ohio, 392 U.S. at 27, 88

S.Ct. at 1883. Analysis of whether a Terry frisk was permissible

is objective. Magistrate Judge Graham found that "Deputy Todd

acted reasonably in performing pat-down searches of the

defendants."

 After carefully reviewing the video tape of the arrest, we

find that the lower court's finding was clearly erroneous. The

sequence of events simply does not support a finding that when the

pat-down search of Banshee occurred, Deputy Todd was conducting a

search for weapons to protect himself. See United States v.

Tharpe, 536 F.2d 1098, 1101 (5th Cir.1976) (noting that the

objective Terry standard may not be invoked to condone sham or
 2

We have adopted former Fifth Circuit case law as precedent. 

Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981 (en

banc). The subsequent reversal of Tharpe by the Fifth Circuit in

Causey, however, is not binding. Moreover, it is questionable

whether Causey actually overruled Tharpe. See Causey, 834 F.2d

at 1182 n. 6 (noting that "the holding in Tharpe actually

supports a broad use of an objective standard"). 

 3We do not suggest that in all situations a Terry search

must be conducted immediately. Often, a police officer will not

immediately have sufficient reason to believe that a suspect may

be armed and dangerous. 

pretextual searches), rev'd, United States v. Causey, 834 F.2d 1179

(1987) (en banc).2

 Under the facts of this case, if Deputy Todd was conducting

a Terry search, the search would have occurred immediately after

Banshee got out of the car.3

 Looked at another way, the only piece

of information Deputy Todd had when he conducted the pat-down

search that he did not know about when Banshee initially got out of

the car was that a female officer was not available. The

availability of a female officer, however, is not related to the

question of whether Banshee was armed and dangerous. Moreover,

because the sole purpose of a Terry frisk is officer protection,

there is absolutely no prohibition on police officers conducting

Terry pat-down searches on suspects of a different gender.

Accordingly, we conclude that the only reasonable

interpretation of what occurred is that when Deputy Todd conducted

the pat-down frisk he was not doing it because he had a reasonable

suspicion that Banshee was armed and dangerous, but because he had

reason to believe Banshee was concealing contraband—most likely

drugs—and there was no female officer available to conduct the

search. See Causey, 834 F.2d at 1181 (explaining that "what
signifies is the officer's actions, objectively viewed in light of

the circumstances confronting him."). Thus, we conclude that the

lower court's finding was in error.

 Our conclusion that the pat-down search was not conducted

pursuant to Terry, however, does not end the inquiry. "When the

police possess probable cause to conduct a search, but because of

exigent circumstances, do not have time to obtain a warrant, they

may search without a warrant." United States v. Juarez, 573 F.2d

267, 274 (5th Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 289, 58

L.Ed.2d 262 (1978). The rule applies equally to searches of person

and property. See Schmerber v. California, 384 U.S. 757, 86 S.Ct.

1826, 16 L.Ed.2d 908 (1966) (applying rule to a person).

 In this case, based upon the inconsistent statements and the

bulge in Banshee's mid-section, we find that Deputy Todd had

probable cause to believe a search would uncover evidence of a

crime. See United States v. Thornton, 733 F.2d 121, 127-28

(D.C.Cir.1984) (discussing what constitutes probable cause in this

context). We also find that there were exigent circumstances

excusing the need for a warrant. See Juarez, 573 F.2d at 275

(finding exigent circumstances when a detained suspect might have

left with the contraband if police would have waited to secure a

warrant).

Specifically, Deputy Todd had the option of either letting

Banshee go or detaining her for a prolonged period of time while he

secured a warrant. Accordingly, under the circumstances, the frisk

was much less an intrusion than a prolonged detention. See WAYNE

R. LaFAVE, SEARCH AND SEIZURE § 6.5(c) (1994) ("[w]here, for
example, only a very limited search into a specific location is

needed, it may be that an immediate but warrantless search of that

place is so clearly a lesser intrusion that it may be undertaken in

lieu of impoundment of the premises until a warrant can be

obtained.").

Accordingly, we hold that Deputy Todd had probable cause to

conduct a search and that exigent circumstances excused the need to

get a warrant.

 We also conclude that the search could be considered a lawful

search incident to an arrest. Specifically, we find that the bulge

in Banshee's mid-section, coupled with the inconsistent statements,

were sufficient grounds for Deputy Todd to conclude that Banshee

was committing a crime. See United States v. Tomaszewski, 833 F.2d

1532, 1535 (11th Cir.1987) (finding probable cause to arrest based

upon bulge in defendant's clothing); United States v. Elsoffer,

671 F.2d 1294, 1299 (11th Cir.1982) (same). Moreover, because

there was probable cause for the arrest before the search and the

arrest immediately followed the challenged search, the fact that

Banshee was not under arrest at the time of the search does not

render the search incident to arrest doctrine inapplicable.

Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65

L.Ed.2d 633 (1980); Thornton, 733 F.2d at 128 n 9.

IV. CONCLUSION

Although we conclude that the district court erred when it

accepted the Magistrate's recommendation that the search was proper

under Terry, we find that the search was indeed lawful for the

reasons stated, and therefore affirm the denial of the motion to
suppress.

AFFIRMED.