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 guilty 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 consecutive

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). He

argues that police searched him for weapons solely because they found a

concealed weapon on the vehicle's other passenger, a search that is invalid

under United States v. Flett, 806 F.2d 823 (8th Cir. 1986). We affirm.
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Shortly before 2:00 a.m. on May 2, 1995, Police Officer Hawley

stopped an automobile that failed to dim its headlights on Highway 71 just

outside of Spencer, Iowa. Hawley recognized Michael Walker, one of the two

passengers, from a previous 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. Jensen, Walker, and Menard, the other passenger, then

exited and stood toward the rear of the auto while Hawley conducted his

search.

Before Hawley completed the search, Officer Larsen arrived on the

scene to assist. When Larsen learned Walker's identity, he reminded Hawley

of a recent "Officer Safety Warning" bulletin advising that the Clay County

Sheriff's Department had information that Walker carried an automatic

pistol. Hawley did a pat-down search of Walker, found a loaded .32 caliber

handgun, and arrested Walker for carrying a concealed weapon. Officer

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 he was carrying a .410 caliber handgun and handed the weapon to

Larsen. Menard was arrested, and a post-arrest search revealed that he was

carrying ten small plastic bags of methamphetamine. 

Following the suppression hearing at which Hawley and Larsen

testified, the district court concluded that it was reasonable for the

officers to take action to protect their safety, and that "the pat-down

search of Menard, once the weapon was found on Walker, was the least

intrusive method to determine 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

(1996), 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 court

applied an objective test in denying Menard's motion to suppress,

the court worried that "rely[ing] on objective facts not

subjectively relied upon by the searching officers . . . would

drastically overextend Terry [v. Ohio, 392 U.S. 1 (1968)]." 898 F.

Supp. at 1332. The unanimous Court in Whren laid that issue to

rest, explaining: "the Fourth Amendment's concern with

'reasonableness' allows certain actions to be taken in certain

circumstances, whatever the subjective intent." 116 S. Ct. at 1775

(emphasis in original). See also Terry, 392 U.S. at 27. 

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§ 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 officers had no reason to suspect that he was armed or

dangerous. Therefore, the decision to subject him to a pat-down search was

based upon his association with Walker and violates the "particularized

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, may

conduct a pat-down search to protect officer safety, regardless of whether

there is also probable cause to arrest. See Terry, 392 U.S. at 27, 32-33

(Harlan, J., concurring), 34-35 (White, J., concurring). This case

illustrates a recurring protective search issue: when police have probable

cause to arrest one member of a group, is it reasonable for them to conduct

pat-down searches of other members of the group to protect officer safety?

Although some circuits have held that all companions of an arrestee may

automatically be frisked 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 Amendment's traditional, totality-of-the-circumstances

analysis. It is relevant that one member of a group has been arrested, but

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 in part on other grounds, United States v. Causey,

3

834 F.2d 1179 (5th Cir. 1987) (en banc). 

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In this case, Officer Hawley stopped an auto for a traffic violation

at 2:00 a.m. on a relatively deserted highway. Hawley was outnumbered by

the auto's occupants. When he recognized one passenger as a possible drug

trafficker, he obtained consent to search the car. The Supreme Court has

frequently noted the inherent danger traffic stops pose to police officers

and the consequent likelihood that minimally intrusive weapons searches

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, 434

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 and

dangerous should contraband 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 1983), cert. denied, 474 U.S.

837 (1985). Menard argues that Hawley evidenced little if any concern for

his safety while searching the auto before Officer Larsen arrived.

However, Fourth Amendment reasonableness does not require "that a policeman

must feel 'scared' by the threat of danger." United 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 not searched until Officer Larsen arrived and reminded

Hawley of the Officer Safety Warning. Menard argues that this delay

confirms that there was no particularized suspicion to frisk him, but this

ignores the realities of the situation. 
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Finding a gun on Walker and arresting him heightened 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. Bell, 762 F.2d 495, 501 (6th

Cir.), cert. denied, 474 U.S. 853 (1985); Tharpe, 536 F.2d at 1100. In

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 be

together in a public place. "The relationship among the patrons at a bar

is quite different from the relationship among the 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 road, late at night, a traffic violation, and suspected drug

trafficking by a passenger found to be carrying a concealed weapon.

After careful review of the suppression hearing record, we conclude

that the district court correctly rejected Menard's contention that he was

searched for weapons "based on nothing more than his companionship with Mr.

Walker." Applying the totality-of-the-circumstances standard mandated in

Flett, we affirm the order denying Menard's motion to suppress and the

judgment of the district court.

McMILLIAN, Circuit Judge, concurring specially. 

I concur specially. This is a fact-intensive case, and I write

separately to emphasize that the opinion applies the analysis in United

States v. Flett, 806 F.2d 823, 827 (8th Cir. 1986), and should not be read

as a retreat from its holding rejecting the automatic companion rule and

instead adopting a totality-of-the-circumstances analysis, in which

companionship alone is not enough to justify a pat-down search, but

companionship
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is one circumstance to be considered in determining the overall

reasonableness of the officer’s actions. 

I also write separately to clarify that this case does not involve

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 mere

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.