PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-8492

D.C. Docket No. CR294-52-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

MARY LEE BANSHEE, a/k/a Mary Lee Johnson, 

 Defendant-Appellant,

 Appeal from the United States District Court

for the Middle District of Georgia

(June 18, 1996)

As Amended July 12, 1996

Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit 

Judge, and MILLS*, District Judge. 

___________________ 

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

Central District of Illinois, sitting by designation.
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 We commend the use of video tape by police officers. It

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

 

REVISED 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.

 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
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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
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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
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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

(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
6

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 review whether there was reasonable suspicion and

probable cause de novo. Ornelas v. United States, 116 S.Ct.

1657 (1996).

After carefully reviewing the record, we find that the

findings adopted by the district court 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 are more problematic.

Nevertheless, because we find that Deputy Todd had probable

cause to conduct a search and that exigent circumstances

existed, whether or not the frisk and ensuing search were

justifiable pursuant to Terry need not be addressed.

"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 (1978). The rule applies equally to

searches of person and property. See Schmerber v. California,

384 U.S. 757 (1966) (applying rule to a person). 
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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. Thorton, 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
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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 (1980);

Thorton, 733 F.2d at 128 n9.

IV. CONCLUSION

 We find that the search was indeed lawful for the

reasons stated, and therefore affirm the denial of the motion

to suppress.

AFFIRMED.