## 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 (P aul M. Warner, United States Attorney; Diana Hagen, Assistant United Stat es Attorney, with him on the briefs), Salt Lake City, Utah, for Plaintiff-Appell ee. Scott Keith Wilson, Assistant Federal Public Defend er (Steven B. Killpack, Federal Public Defender, with him on the briefs), S alt Lake City, Utah, for Defendant-Appellant.

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

MURPHY , Circuit Judge.-2-

I. INTRODUCTION Police Officer Joseph Cyr seized defendant Kevin Th omson’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 violat ion of 18 U.S.C. § 922(g)(9), he filed a motion to suppress the handgun. The dis trict court denied the suppression motion, relying on the community careta ker exception to the Fourth Amendment warrant requirement. Thomson entered int o a plea agreement with the government, but reserved his right to appeal th e district court’s denial of his motion to suppress. See Fed. R. Crim. P. 11(a)(2). Thomson appeals and th is 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 lo cated in Salt Lake City, Utah. The employees of Alcatel had locked themselves in t he ground level office. Officer Cyr located the ground level office and he was allowed to enter after identifying himself. He interviewed the manager, M r. Panza, and two witnesses.-3-

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 purport edly cleaning out his office. Panza informed the officer that Thomson had a histo ry of drug abuse and was known to carry a handgun. Officer Cyr next spoke w ith 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 phon e conversation with Thomson during which Thomson said to Hutchinson, that the c onversation 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 agreen canvas bag. The other witness, Mr. Stott, told Cyr about an inc ident in Thomson’s office. Stott had noticed a large bullet on Thomso n’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 floorand 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,-4-

and Thomson replied that he did not. Cyr patted Th omson down and asked if he had weapons nearby. Thomson indicated that there w as 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 open ed 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 det ermining that he had probable cause to arrest Thomson for assault. Officer Cyr t hen returned to Alcatel and took Thomson into custody. Thompson was charged bystate 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 agr eement, however, Thomson retained his right to appeal the district court’s d enial of his motion to suppress.
III. DISCUSSION A. The Initial Seizure of the Handgun When reviewing a district court’s denial of a motio n to suppress, we accept the factual findings unless they are clearly errone ous 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 occ urred. 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).
-5- The district court denied the motion to suppress be cause it concluded that Officer Cyr’s opening of the bag and temporary seiz ure 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 w as 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 investigato ry stop police officers were entitled to make a limited search forweapons 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 limi ted to a frisk of the person under investigation. See Michigan v. Long , 463 U.S. 1032, 1047 (1983) (“ Terryneed 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 Terrysearch, they are entitled to seize it. This is true whether the Terrysearch 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 Terrysearch of a car); Minnesota v. Dickerson ,2 In Dickerson the contraband seized was suppressed because the p olice

officer exceeded the scope of a permissible Terrypat down. Minnesota v. Dickerson , 508 U.S. 366, 377-78 (1993).
-6- 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 ide ntity immediately apparent, there has been no invasion of the suspect ’s privacy beyond that already authorized by the officer’s search forweapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the pl ain-view context. Id. The Supreme Court concluded that a “plain feel” e xception 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 p ocket 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 Terrystop investigation revealed that it contained a weapon. Such an action was reasonable under the circumstances. Thomson concedes that the police had a reasonable a rticulable suspicion sufficient to justify the initial encounter with hi m 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 impermissibl y extend Terryto allow a-7-

search of any container in the vicinity of the pers on being questioned. We disagree. In this case, Officer Cyr both knew that the bag co ntained 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 acknowled gment that the bag contained a handgun. Furthermore, Cyr had informat ion 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 aut horize 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 act ions were “reasonably related in scope to the circumstances which justified the i nterference in the first place.” Terry , 392 U.S. at 20. In opening the bag, Cyr’s action s were limited to what was needed to seize the weapon discovered during his in vestigation of a potentially dangerous suspect. Accordingly, we conclude that r emoving 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 e ntitled to retain the weapon-8-

indefinitely. It is, however, “well established th at under certain circumstances the police may seize evidence in plain view without a w arrant.” 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 th at 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 bel ieve 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-wo rkers because he had recently been terminated. Finally, Cyr observed that the ot her employees were sufficiently frightened of Thomson to lock themselves in an offi ce. Thus, the weapon was relevant to Thomson’s intent to intimidate others o r to actually carry out his threats. These circumstances were sufficient to gi ve Cyr probable cause to seize3 § 76-5-107 states in relevant part, “(1) A person commits a terroristic

threat if he threatens to commit any offense involv ing bodily injury, death, or substantial property damage, and:. . . . (b) he ac ts with intent to: . . . (iii) place a person in fear of imminent serious bodily injury, s ubstantial bodily injury, or death.”
-9- 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 separat e 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 ex istence of probable cause is not determinative because we measure probable cause aga inst an objective standard. United States v. Davis , 197 F.3d 1048, 1051 (10th Cir. 1999). As explain ed above there was an objectively sufficient basis to believe that the handgun was evidence of a crime. Accordingly, the continued se izure 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 desc ribed above rather than those relied on by the district court. United States v. Sandoval , 29 F.3d 537, 542 n.6-10-

(10th Cir. 1994)(noting that the court of appeals m ay affirm a district court decision on any grounds sufficiently supported by the record).