F I L E D

United States Court of Appeals

Tenth Circuit

DEC 30 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

KEVIN GLADE THOMSON, also

known as Kevin Thompson, also

known as Kevin Thomsom,

Defendant-Appellant. 

No. 02-4224

Appeal from the United States District Court

for the District of Utah

(D.C. No. 2:00-CR-191-DAK)

Wayne T. Dance, Assistant United States Attorney (Paul M. Warner, United

States Attorney; Diana Hagen, Assistant United States Attorney, with him on the

briefs), Salt Lake City, Utah, for Plaintiff-Appellee.

Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack,

Federal Public Defender, with him on the briefs), Salt Lake City, Utah, for

Defendant-Appellant.

Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and

MURPHY, Circuit Judge.

MURPHY, Circuit Judge.
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I. INTRODUCTION

Police Officer Joseph Cyr seized defendant Kevin Thomson’s handgun

from a nylon bag during an investigation concerning threats Thomson allegedly

made to his co-workers. When Thomson was indicted for possession of a firearm

following a domestic violence conviction, in violation of 18 U.S.C. § 922(g)(9),

he filed a motion to suppress the handgun. The district court denied the

suppression motion, relying on the community caretaker exception to the Fourth

Amendment warrant requirement. Thomson entered into a plea agreement with

the government, but reserved his right to appeal the district court’s denial of his

motion to suppress. See Fed. R. Crim. P. 11(a)(2). Thomson appeals and this

court exercises jurisdiction pursuant to 28 U.S.C. § 1291. This court affirms the

district court’s denial of the motion to suppress, but on different grounds than

those relied on below.

II. BACKGROUND

Officer Cyr responded to a report that Thomson had made threatening

remarks to his co-workers at Alcatel, a business located in Salt Lake City, Utah. 

The employees of Alcatel had locked themselves in the ground level office. 

Officer Cyr located the ground level office and he was allowed to enter after

identifying himself. He interviewed the manager, Mr. Panza, and two witnesses. 
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Panza informed Cyr that Thomson had been terminated a few days earlier but had

remained in the building for two-and-one-half days. Panza further indicated

Thomson was on the fifth floor where he was purportedly cleaning out his office. 

Panza informed the officer that Thomson had a history of drug abuse and was

known to carry a handgun. Officer Cyr next spoke with one of the witnesses, Mr.

Hutchinson, who informed him that earlier in the day he had heard Thomson say

the words “fire storm” and “this place is going to burn.” Hutchinson also

informed Cyr that a few weeks earlier he had a phone conversation with Thomson

during which Thomson said to Hutchinson, that the conversation was “just

between you and me. If you tell anyone else, I’ll kill you.” In addition,

Hutchinson told Cyr that Thomson carried a gun in a green canvas bag. 

The other witness, Mr. Stott, told Cyr about an incident in Thomson’s

office. Stott had noticed a large bullet on Thomson’s desk and asked, “[w]hat is

that for?” According to Stott, Thomson replied, “[i]t’s for all you mother F‘ers. 

You’re all the same.” Officer Cyr also noted that all of the employees appeared

to be frightened. 

At some point during Officer Cyr’s interview of the employees, Officer Hill

arrived. The two policemen went to the fifth floor and found Thomson sitting at

the desk in his office. Cyr asked Thomson to place his hands on his desk and

Thomson complied. Cyr asked Thomson if he had any weapons on his person,
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and Thomson replied that he did not. Cyr patted Thomson down and asked if he

had weapons nearby. Thomson indicated that there was a weapon in a green

canvas bag on the floor next to him. Cyr took the bag and carried it over to the

other side of the desk away from Thomson. Cyr opened the bag and immediately

found a handgun and three magazines of ammunition. 

Cyr seized the weapon and took it to the police station as evidence. Cyr

then spoke with a detective who assisted him in determining that he had probable

cause to arrest Thomson for assault. Officer Cyr then returned to Alcatel and

took Thomson into custody. Thompson was charged by state authorities with

aggravated assault and carrying a concealed weapon. He later pleaded guilty to a

federal charge of violating 18 U.S.C. § 922(g)(9), possessing a firearm following

a domestic violence conviction. Under the plea agreement, however, Thomson

retained his right to appeal the district court’s denial of his motion to suppress. 

III. DISCUSSION

A. The Initial Seizure of the Handgun 

When reviewing a district court’s denial of a motion to suppress, we accept

the factual findings unless they are clearly erroneous and consider the evidence in

a light most favorable to the government. United States v. Elliott, 107 F.3d 810,

813 (10th Cir. 1997). We review de novo the district court’s legal conclusion

concerning whether a Fourth Amendment violation occurred. Id. 
1

 In United States v. Bute, this court expressly held that “the community

caretaking exception to the warrant requirement is applicable only in cases

involving automobile searches.” 43 F.3d 531, 535 (10th Cir. 1994).

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The district court denied the motion to suppress because it concluded that

Officer Cyr’s opening of the bag and temporary seizure of the weapon were

permissible under the community caretaker doctrine. On appeal the government

has conceded that the community caretaker doctrine is inapplicable to the facts in

this case.1 Instead, the government argues that Officer Cyr was justified in

opening the bag under the rationale of Terry v. Ohio, 392 U.S. 1 (1968). 

In Terry, the Supreme Court held that during an investigatory stop police

officers were entitled to make a limited search for weapons that might be used to

harm them when they have a reasonable, articulable suspicion of danger. 392

U.S. at 24. This rationale is not necessarily limited to a frisk of the person under

investigation. See Michigan v. Long, 463 U.S. 1032, 1047 (1983) (“Terry need

not be read as restricting the preventative search to the person of the detained

suspect.”). 

If the police detect a weapon or contraband during a Terry search, they are

entitled to seize it. This is true whether the Terry search is a simple frisk or a

limited search beyond the person of the suspect. See Long, 463 U.S. at 1050

(noting that the Fourth Amendment does not require an officer to ignore

contraband discovered during a Terry search of a car); Minnesota v. Dickerson,
2

 In Dickerson the contraband seized was suppressed because the police

officer exceeded the scope of a permissible Terry pat down. Minnesota v.

Dickerson, 508 U.S. 366, 377-78 (1993).

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508 U.S. 366, 375-76 (1993). In Dickerson, the Supreme Court analyzed the

justification for such a seizure by analogizing to the plain view doctrine:

If a police officer lawfully pats down a suspect’s outer clothing and

feels an object whose contour or mass makes its identity immediately

apparent, there has been no invasion of the suspect’s privacy beyond

that already authorized by the officer’s search for weapons; if the

object is contraband, its warrantless seizure would be justified by the

same practical considerations that inhere in the plain-view context.

Id. The Supreme Court concluded that a “plain feel” exception to the warrant

requirement would justify the seizure of contraband detected during a pat down

because the officer knew the nature of the item.2 Thus, upon detection of a

weapon or contraband the officer may reach into a pocket and seize the item. Id.

A similar analysis justifies Officer Cyr’s seizure of the gun in this case. Officer

Cyr only opened the bag after his Terry stop investigation revealed that it

contained a weapon. Such an action was reasonable under the circumstances. 

Thomson concedes that the police had a reasonable articulable suspicion

sufficient to justify the initial encounter with him and the pat down of his person. 

Likewise, Thomson does not object to Officer Cyr’s questions concerning the

weapon. Instead, Thomson argues that allowing Cyr to open the bag and seize the

weapon under these circumstances would impermissibly extend Terry to allow a
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search of any container in the vicinity of the person being questioned. We

disagree. 

In this case, Officer Cyr both knew that the bag contained a weapon and

had a reasonable articulable suspicion that Thomson was dangerous. His

knowledge that the handgun was in the bag resulted not only from the statements

of two witnesses, but also from Thomson’s acknowledgment that the bag

contained a handgun. Furthermore, Cyr had information indicating that Thomson

had made repeated threats against his coworkers and his behavior that day caused

the other employees to lock themselves in an office. Allowing Officer Cyr to

open the bag under these circumstances does not authorize a broader search. 

Indeed, in this case Officer Cyr did not conduct a general search of Thomson’s

desk drawers or Thomson’s office. Instead, his actions were “reasonably related

in scope to the circumstances which justified the interference in the first place.” 

Terry, 392 U.S. at 20. In opening the bag, Cyr’s actions were limited to what was

needed to seize the weapon discovered during his investigation of a potentially

dangerous suspect. Accordingly, we conclude that removing the weapon from the

bag was permissible under the Fourth Amendment. 

B. The Continued Seizure of the Handgun

Allowing Officer Cyr to control the weapon for the duration of the

encounter with Thomson does not mean that Cyr was entitled to retain the weapon
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indefinitely. It is, however, “well established that under certain circumstances the

police may seize evidence in plain view without a warrant.” Arizona v. Hicks,

480 U.S. 321, 326 (1987) (quoting Coolidge v. New Hampshire, 403 U.S. 443,

465 (1971)). Police are entitled to seize items that they have probable cause to

believe are evidence of a crime. See United States v. Falcon, 766 F.2d 1469,

1475 (10th Cir. 1985). 

In this case, Officer Cyr had probable cause to believe that the handgun

found in the bag was evidence of a crime. Officer Cyr was summoned to Alcatel

because Thomson’s co-workers were frightened by his activities. Two witnesses

described three separate threats made by Thomson. Hutchinson described an

incident on the day of Cyr’s investigation in which Thomson had said “this place

is going to burn,” and mentioned a “firestorm.” An earlier statement made by

Thomson suggested a specific threat to shoot his co-workers. Thomson’s

handgun would have allowed him to carry out such a threat. In addition,

Thomson had a basis to be antagonistic to his co-workers because he had recently

been terminated. Finally, Cyr observed that the other employees were sufficiently

frightened of Thomson to lock themselves in an office. Thus, the weapon was

relevant to Thomson’s intent to intimidate others or to actually carry out his

threats. These circumstances were sufficient to give Cyr probable cause to seize
3

 § 76-5-107 states in relevant part, “(1) A person commits a terroristic

threat if he threatens to commit any offense involving bodily injury, death, or

substantial property damage, and:. . . . (b) he acts with intent to: . . . (iii) place a

person in fear of imminent serious bodily injury, substantial bodily injury, or

death.” 

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the weapon as potential evidence of a violation of Utah Code Ann. § 76-5-107,

Terroristic Threats.3

 

Officer Cyr’s failure to immediately realize he had probable cause to arrest

Thomson does not undermine our conclusion. First, the determination of whether

or not there is probable cause to arrest is separate from the determination of

whether there is probable cause to believe an item is evidence of a crime. 

Second, an officer’s subjective belief as to the existence of probable cause is not

determinative because we measure probable cause against an objective standard. 

United States v. Davis, 197 F.3d 1048, 1051 (10th Cir. 1999). As explained

above there was an objectively sufficient basis to believe that the handgun was

evidence of a crime. Accordingly, the continued seizure was proper. 

IV. Conclusion

As we described above, Cyr’s initial search of the bag was justified by the

circumstances and the subsequent seizure of the weapon as evidence was

supported by probable cause. Accordingly, we affirm the district court’s denial

of the motion to suppress, but for the reasons described above rather than those

relied on by the district court. United States v. Sandoval, 29 F.3d 537, 542 n.6
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(10th Cir. 1994)(noting that the court of appeals may affirm a district court

decision on any grounds sufficiently supported by the record).