### The HONORABLE MARK W. BENNETT, United States District Judge 1 

### for the Northern District of Iowa. ___________ No. 96-1128

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Michael D. Menard, * * Defendant - Appellant. *

___________ Submitted: May 14, 1996 Filed: September 6, 1996

___________ Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.
After Michael D. Menard pleaded guil ty to possessing methamphetamine with intent to distribute and to using or carrying a firearm in relation to a drug offense, the district court sentenced him to two consecutiv e 1 sixty- month prison terms. Menard appeals, contesting only the court' s earlier denial of his motion to suppress evidence seized during a traffic stop. United States v. Menard , 898 F. Supp. 1317 (N.D. Iowa 1995). H e argues that police searched him for weapons solely because they found a concealed weapon on the vehicle's other passenger, a search that is invali d under United States v. Flett , 806 F.2d 823 (8th Cir. 1986). We affirm.

### -2- Shortl y before 2:00 a.m. on May 2, 1995, Police Officer Hawle y stopped an automobile that failed to dim its hea dlights on Highway 71 just outside of Spencer, Iowa. Hawley recognized Michael Walker, one of the tw o passengers, from a pr evious narcotics arrest, and had information from an Iowa drug task force that Walker used drugs and might be involved in drug sales. Hawley asked the driver, Lisa Jensen, if he could search the auto, and she consented. J ensen, Walker, and Menard, the other passenger, then exited an d stood toward the rear of the auto while Hawley conducted hi s search.

Before Hawley completed the search, Officer Larsen arrived on th e
scene to assist. When Larsen learned Walker's identity, he reminded Hawle y of a recent "Officer Safety Warning" bulletin advising that the Clay Count y Sheriff 's Department had information that Walker carried an automati c pistol. Hawley did a pat-down search of Walker, found a loaded .32 calibe r handgun, and arrested Walker for carrying a concealed weapon. Office r Larsen then asked Menard if he was carrying a gun. When Menard said no, Officer Larsen said he would do a pat-down search. Menard then admitted that h e was carrying a .410 caliber handgun and handed the weapon t o Larsen. Menard was arrested, and a post-arrest search revealed that he wa s carrying ten small plastic bags of methamphetamine.

Foll owing the suppression hearing at which Hawley and Larse n testified, the district court concluded that it was reasonable for th e officers to take action to protect their safety, and that "the pat-dow n search of Menard, once the weapon was found on Walker, was the leas t intrusive method to d etermine rapidly whether any further weapons were in the hands of anyone else involved in the stop." 898 F. Supp. at 1333

. Therefore, the court denied Menard's motion to suppress.

On appeal , Menard concedes that Officer Hawley lawfully stopped the auto for a minor traffic violation, see Iowa Code Ann.

### The Supreme Court in Whren v. United States , 116 S. Ct. 1769 2 

### (19 96), recently confirmed that probable cause to believe that a traffic violation has occurred justifies a traffic stop. Whren is significant on another point as well. Though the district cour t applied an objective test in denying Menard's motion to suppress, the co urt worried that "rely[ing] on objective facts no t subjectively relied upon by the searching officers . . . woul d drastically overextend Terry [v. Ohio , 392 U.S. 1 (1968)]." 898 F. Supp. at 1332. The unanimous Court in Whren laid that issue t o rest, explaining: "the Fourth Amendment's concern wit h 'r easonableness' allows certain actions to be taken in certai n circumstances, whatever the subjective intent." 116 S. Ct. at 1775 (emphasis in original). See also Terry , 392 U.S. at 27. -3- § 321.415(1), that Hawley properly searched the auto with driver Jensen's 2 consent, and that the pat-down search of Walker was reasonable. However, Menard argues, the of ficers had no reason to suspect that he was armed or dangerous. Therefore, the decision to subject him to a pat-down search wa s based upon his association with Walker and violates the "particularize d suspicion" requirement of Flett and Ybarra v. Illinois , 444 U.S. 85 (1979)

. We disagree.
A police officer who has legitimate contact with another person, and who has reason to believe that person may be armed and dangerous, ma y conduct a pat-down search to protect officer saf ety, regardless of whether there is also probabl e cause to arrest. See Terry , 392 U.S. at 27, 32-33 (Harla n, J., concurring), 34-35 (White, J., concurring). This cas e illustrates a recurring protective search issue: when police have probabl e
cause to arrest one member of a group, is it reasonable for them to conduc t pat-down searches of other members of the group to protect officer safety? Although some circuits have held that all companions of an arrestee ma y automatically be fris ked for weapons, see United States v. Berryhill , 445 F.2d 1189, 1193 (9th Cir. 1971), we rejected that rule in Flett , applying instead the Fourth Am endment's traditional, totality-of-the-circumstances analysis. It is relevant that one member of a group has been arrested, bu t that does not automatically give rise to a reasonable suspicion that the others may be armed and dangerous. See 806 F.2d at 827.

### Overruled i n part on other grounds , United States v. Causey , 3 

### 834 F.2d 1179 (5th Cir. 1987) (en banc).
-4- In this case, Officer Hawley stopped an auto for a traffic violation at 2:00 a.m. on a rel atively deserted highway. Hawley was outnumbered by the auto's occupants. When he recognized one pa ssenger as a possible drug trafficker, he obtain ed consent to search the car. The Supreme Court has frequently noted the inherent danger traffic sto ps pose to police officers and the consequent likelihood that minimally intrusive weapons searche s will be reasonable. See Michigan v. Long , 463 U.S. 1032, 1047-50 (1983); Foley v. Connelie , 435 U.S. 291, 298 (1978); Pennsylvania v. Mimms , 43 4 U.S. 106, 109-10 (1977); Adams v. Williams , 407 U.S. 143, 148 (1972)

. Thus, Officer Hawley could have reasonably conducted pat-down searches of Walker and Menard as they exited the auto, so that Hawley could complete his search without fear that its occupants would prove to be armed an d dangerous should cont raband be discovered. See United States v. Douglas , 964 F.2d 738, 741 (8th Cir. 1992); United States v. Brown , 913 F.2d 570, 572 (8th Cir.), cert. denied , 498 U.S. 1016 (1990); United States v

. Whitfield , 907 F.2d 798 (8th Cir. 1990); cf. United States v. Jones , 759 F.2d 633, 640 n.10 (8th Cir.) (129 officers killed pursuing and stopping traffic violators in the ten years ending in 198 3), cert. denied , 474 U.S. 837 (1985). Menard argues that Hawley evidencedlittle if any concern for his sa fety while searching the auto before Officer Larsen arrived

. However, Fourth Amendment reasonableness does not require "that a policema n must feel 'scared' by the threat of danger." Un ited States v. Tharpe , 536 F.2d 1098, 1101 (5th Cir. 1976) (en banc). 3

Hawley did not pat down Walker and Menard as they exited the auto

. Indeed, Walker was no t searched until Officer Larsen arrived and reminded Hawl ey of the Officer Safety Warning. Menard argues that this dela y confirms that there was no particularized suspic ion to frisk him, but this ignores the realities of the situation.

### -5-

Finding a gun on Walker and arresting him height ened the threat to officer safety because an armed associate of Walker might use force to free him. See United States v. Simpson , 992 F.2d 1224, 1227 (D.C. Cir.), cert
. denied , 510 U.S. 906 (1993); United States v. Be ll , 762 F.2d 495, 501 (6th Cir.), cert. denied , 474 U.S. 853 (1985); Tharpe , 536 F.2d at 1100. I n Ybarra , the Supreme Court held that execution of a warrant to search a tavern and its bartender did not justify a pat-down search of every patron

. See 444 U.S. at 91-93. But Walker and Menard did not just happen to b e together in a public place. "The relationship among the patrons at a bar is quite different from the relationship among t he occupants of a house or car." United States v. Vaughan , 718 F.2d 332, 335 n.6 (9th Cir. 1983)

. Nor may we ignore the totality of the circumstances of this encounter --
a lonely r oad, late at night, a traffic violation, and suspected dru g trafficking by a passenger found to be carrying a concealed weapon.

After car eful review of the suppression hearing record, we conclude that the district court correctly rejected Menar d's contention that he was searched for weapons "based on nothing more than his companionship with Mr

. Walker." Applying th e totality-of-the-circumstances standard mandated in Flett , we affirm the order denying Menard's motion to suppress and th e judgment of the district court.
McMILLIAN, Circuit Judge, concurring specially.

I concur specially. This is a fact-intensive case, and I writ e sep arately to emphasize that the opinion applies the analysis in Unite d States v. Flett , 806 F.2d 823, 827 (8th Cir. 198 6), and should not be read
as a retreat from its holding rejecting the automatic companion rule and ins tead adopting a totality-of-the-circumstances analysis, in whic h companionship alone is not enough to justify a pat-down search, bu t companionship

### -6-

is one circumstance to be considered in determining the overal l reasonableness of the officer’s actions.

I also write separately to clarify that this case does not involv e the subjective-objective issue recently resolved by the Supreme Court in Whren v. United States , 116 S. Ct. 1769 (1996).

Because I agree that in the present case there was more than mer e companionship, I concur in the decision to affirm the district court’ s denial of the motion to suppress.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.