PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4061

BILLY HOWARD STANFIELD,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge; Herbert N. Maletz, Senior Judge,

sitting by designation.

(CR-95-191)

Argued: December 2, 1996

Decided: March 31, 1997

Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the opinion, in

which Judges Hamilton and Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Stanley Howard Needleman, Baltimore, Maryland, for

Appellant. Philip S. Jackson, Assistant United States Attorney,

Baltimore, Maryland, for Appellee. ON BRIEF: Steven J. Potter, Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United States

Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
OPINION

LUTTIG, Circuit Judge:

Law enforcement officials literally risk their lives each time they

approach occupied vehicles during the course of investigative

traffic

stops. As the Supreme Court has repeatedly observed,"a significant

percentage of murders of police officers occurs when officers are

making traffic stops." United States v. Robinson, 414 U.S. 218, 234

n.5 (1973). In recognition of the extraordinary dangers to which

officers are exposed during such encounters, the Court has consistently

accorded officers wide latitude to protect their safety,

authorizing

them, inter alia, to routinely order both drivers and passengers to

exit

their vehicles during such stops and to conduct the equivalent of

"frisks" of automobile interiors whenever they reasonably believe

their safety might be in jeopardy.

The advent of tinted automobile windows, however, has threatened

to bring to naught these essential law enforcement protections.

Confronted with the grave risk that tinted windows pose to the safety

of

law enforcement personnel, we address herein whether the government's substantial interest in officer safety during a lawful

traffic stop

outweighs the intrusion on the privacy interests of the vehicle's

occupants which results when, because of heavily tinted windows that

prevent the interior compartment from being viewed, an officer opens

a

door of the vehicle in order to ensure that the vehicle's driver is

unarmed and that there are no other occupants who might threaten

his

safety during the investigatory stop. We conclude that, perhaps

generally, but at least under the circumstances of this case, the

substantial

government interest in officer safety which exists when law

enforcement officers must approach vehicles with heavily tinted windows

far

outweighs any minimal privacy interest the suspect retains in the

otherwise visible interior compartment of his vehicle.

I.

At approximately 9:00 a.m. on the morning of April 29, 1996, three
officers from the Baltimore City Police Department-- Officers

Mackel, Buie and Hamel -- were patrolling a high crime area in West

Baltimore known for its open narcotics trafficking when they saw a

2
late model, black Nissan Pathfinder with heavily tinted windows

illegally parked in the middle of the street, effectively blocking

traffic.

See Md. Transportation Code Ann. §§ 21-1003(r), 27-101(a) & (b)

(Michie 1996). The officers, who were armed and wearing bulletproof vests over their uniforms because of the dangerousness of

their

assignment, see United States v. Stanfield, 906 F. Supp. 300, 301

(D.

Md. 1995), circled the block and, when the driver of the Pathfinder

made no effort to move his vehicle to allow a free flow of traffic,

parked their unmarked vehicle in front of the Pathfinder. Upon

exiting

their cruiser, the officers noticed that the Pathfinder's driver,

appellant Billy Howard Stanfield, was talking to a man leaning from a

second story window, whom the officers recognized as William Staten,

a known drug dealer. See id.; J.A. at 151-52 (testimony of Officer

Mackel); see also J.A. at 19 (Government's Memorandum of Law in

Response to Defendant's Motion to Suppress Evidence).

The officers approached Stanfield's Pathfinder from both the driver

and passenger sides, and, as they did so, they noticed that the

front

driver's side window was down, but that the front passenger side

window was raised. See Stanfield, 906 F. Supp. at 301, 303. The

tinting

on the Pathfinder's windows was so dark that Officer Mackel, who

was approaching on the passenger's side, could not see into the

vehicle. See id. at 302, 303. Nor could Officers Buie and Hamel see

much

of the vehicle's interior during their approach from the driver's

side.

As a consequence of the officers' inability to see inside the

vehicle

as they approached, Officer Mackel opened the front passenger side

door of Stanfield's vehicle in order to determine whether Stanfield

was armed or had access to weapons and whether he was alone in the

Pathfinder. When Officer Mackel opened the passenger door, he saw

in plain view, from his vantage point entirely outside the vehicle,

see

id., a clear plastic bag of cocaine protruding from the mouth of a

brown paper bag which was overturned on the back seat of the Pathfinder. See id. & n.6.1 The officers arrested Stanfield, searched

the

_________________________________________________________________

1 The recited facts are those as found by the district court. A

number

of the material facts were vigorously disputed at the suppression
hearing

and, ultimately, the district court did not fully credit the

testimony of

either the officers or Stanfield, a fact which brings the case to

us in a

somewhat awkward posture. For example, the officers testified that

both

the front driver and passenger side windows were open, and that the

3
Pathfinder, and discovered a nine-millimeter semi-automatic handgun, numerous empty vials, two contact pagers, and over 200 grams

of cocaine. See id. at 302. Stanfield was subsequently charged with

possession with intent to distribute cocaine and possession with

intent

to distribute cocaine base in violation of 21 U.S.C.§ 841(a)(1).

Prior to trial, Stanfield moved to suppress the cocaine seized from

the back seat of his Pathfinder, contending that the search

affected by

Officer Mackel's opening of the front passenger door was

unconstitutional under the Fourth Amendment and, therefore, that the cocaine

discovered as a consequence of that search must be suppressed. Following an evidentiary hearing, the district court denied the

motion,

upholding the search on two independent grounds. First, citing

Texas

v. Brown, 460 U.S. 730, 740 (1983), the district court held that

Officer Mackel's opening of the passenger side door was permissible

because Stanfield did not have a legitimate expectation of privacy

in

the interior of his car. See Stanfield, 906 F. Supp. at 304 n.9.

Second,

the district court held that, under Michigan v. Long, 463 U.S. 1032

(1983), "Officer Mackel was Constitutionally permitted to open the

door to determine whether there were other[ ] [occupants in the

vehicle] and if any weapons were within Stanfield's immediate reach,"

determinations which the district court found were otherwise

virtually

impossible because of the heavy window tinting. Stanfield, 906 F.

Supp. at 304; see also id. at 303-04 & n.11 ("[B]ecause Officer

Mackel was unable to see through the heavily tinted windows of the

_________________________________________________________________

cocaine was seen through the open passenger window. See Stanfield,

906

F. Supp. at 301. The district court, for reasons we find difficult

to understand, rejected this testimony seemingly for the reason alone that

it was

fifty-nine degrees on the day in question, and therefore "it

seem[ed]

more likely than not that [Stanfield] would have left the

passenger's side

window up." See id. at 303 n.5. Stanfield, for his part, testified

that the

passenger side window was raised and that Officer Mackel opened the

passenger side door, climbed inside the vehicle, and searched under

the

back seat to find the cocaine. See id. at 302. The district court
specifically found, however, that the cocaine was in plain view once

Officer

Mackel opened the passenger side door and that Officer Mackel,

contrary

to Stanfield's contention, neither entered the vehicle nor searched

under

the vehicle's seat. See id. at 303 n.6.

4
Pathfinder, he had an objectively reasonable belief that Stanfield

(or

a hidden passenger) was potentially dangerous.").

Following the district court's denial of Stanfield's suppression

motion, Stanfield pled guilty to one count of possession, reserving

the

right to appeal the district court's suppression ruling that is now

before us. For the reasons that follow, we affirm.

II.

"[T]he `touchstone of the Fourth Amendment is reasonableness.'"

Ohio v. Robinette, 117 S. Ct. 417, 421 (1996) (quoting Florida v.

Jimeno, 500 U.S. 248, 250 (1991)). And, as the Court explained in

Pennsylvania v. Mimms, 434 U.S. 106 (1977), reasonableness "depends `on a balance between the public interest and the

individual's

right to personal security free from arbitrary interference by law

officers.'" Id. at 109 (quoting United States v. Brignoni-Ponce, 422

U.S.

873, 878 (1975)). Under this balancing test, the Supreme Court has

consistently approved of protective searches of persons, vehicles,

and

even homes, during routine and other lawful investigatory

detentions,

in recognition of the paramount interest in officer safety and the

extraordinary risks to which law enforcement officials are exposed

during such detentions.

Thus, for example, in Terry v. Ohio, 392 U.S. 1 (1968), the Court

sanctioned the now-familiar "pat-down" search, or "frisk," because

of

the "immediacy" of the government's interest in officer safety,

notwithstanding its conclusion that "[e]ven a limited search of the

outer

clothing for weapons constitutes a severe . . . intrusion upon

cherished

personal security," id. at 24-25. If an officer possesses a

reasonable

belief based on "specific and articulable facts" that the suspect

is

potentially dangerous, id. at 21, reasoned the Court, then the

officer

is justified in undertaking the "limited steps" necessary to

"protect

himself and others from possible danger." Id . at 28.

Fifteen years later, in Long, the Court authorized what are essentially "frisks" of automobile interiors during traffic stops, see

Maryland v. Buie, 494 U.S. 325, 332 (1990), holding that such pro-
tective searches are "justified by the principles. . . established

in

Terry." Long, 463 U.S. at 1046. Recognizing that all "investigative

5
detentions involving suspects in vehicles are especially fraught

with

danger to police officers," id. at 1047, and accepting without

discussion that an area search of a vehicle is less intrusive than the

frisk of

the person, the Court concluded that "the balancing required by

Terry

clearly weighs in favor of allowing the police to conduct an area

search of the passenger compartment to uncover weapons, as long as

they possess [a] reasonable belief that the suspect is potentially

dangerous." Id. at 1051.2

In Mimms and Maryland v. Wilson , 65 U.S.L.W. 4124 (Feb. 19,

1997), the Court even adopted bright-line rules that officers may,

as

a matter of course, order both drivers and passengers from vehicles

during routine traffic stops in order to ensure that such stops are

completed without incident.

The Court in Mimms held that the "inordinate risk" that exists

every

time "an officer . . . approaches a person seated in an

automobile,"

434 U.S. at 110, justifies a per se rule that drivers may be

ordered out

of their vehicles during lawful traffic stops, whether or not there

exists any particular reason under the circumstances to believe

that

officer safety might be in jeopardy. In contrast to the substantial

state

interest in safety at stake when officers must approach a stopped

vehicle, the Court characterized the additional intrusion on personal

lib-

_________________________________________________________________

2 The Court expressly extendedTerry and Long in Buie, authorizing,

"in conjunction with... in-home arrest[s]," 494 U.S. at 337,

protective

sweeps even of personal residences, where a reasonably prudent

officer,

based upon articulable facts, would believe "that the area to be

swept

harbors an individual posing a danger to those on the arrest

scene." Id.

at 334 (stating that the adopted standard "is no more and no less

than was

required in Terry and Long, and as in those cases, we think this

balance

is the proper one."). Although the Court remanded for application

of this
standard, it concluded that, even though the suspect sought by

police had

been arrested and handcuffed, and all discernible threat to the

police had

been neutralized, a "cursory search" of Buie's house still might be

permissible on the ground that the house could "harbor[ ] other

persons who

are dangerous and who could unexpectedly launch an attack" on the

officers. Buie, 494 U.S. at 333. Not surprisingly, the Maryland Court

of

Appeals on remand did in fact hold that the cursory search of

Buie's

basement was reasonable. See Buie v. Maryland, 580 A.2d 167, 172

(Md. 1990).

6
erty occasioned by requiring drivers to exit their vehicles and to

move

off onto the shoulder of the road as "de minimis," "at most a mere

inconvenience," id. at 111, and "hardly ris[ing] to the level of a

`petty

indignity,'" id. (quoting Terry, 392 U.S. at 17), reasoning that

"[t]he

driver is being asked to expose to view very little more... than

is

already exposed" when the driver is seated in his automobile. Id.

Finally, repeating its oft-repeated observation that the government

has a "legitimate" and "weighty" interest in officer safety, the

Court

in Wilson recently expanded the Mimms per se rule to allow officers

to order not only drivers, but all occupants, to exit vehicles and

move

off onto the shoulder of the road during routine traffic stops. See

65

U.S.L.W. at 4126. While acknowledging that the passengers' liberty

interests implicated by orders to exit vehicles might be stronger

than

those of the drivers, the Court nonetheless readily concluded that

these interests likewise are "minimal" and necessarily must yield

to

the state's interest in officer safety, finding persuasive

Maryland's

common-sense argument that every occupant in a vehicle "increases

the possible sources of harm to the officer." Id.

A.

1.

Notwithstanding that the Court "generally eschew[s] bright-line

rules in the Fourth Amendment context," id . at 4125 n.1; see also

Robinette, 117 S. Ct. at 421, we believe that the Court's decisions

in

Mimms and Wilson in particular would support a holding that whenever, during a lawful traffic stop, officers are required to

approach a

vehicle with windows so heavily tinted that they are unable to view

the interior of the stopped vehicle, they may, when it appears in

their

experienced judgment prudent to do so, open at least one of the

vehicle's doors and, without crossing the plane of the vehicle,

visually

inspect its interior in order to ascertain whether the driver is

armed,

whether he has access to weapons, or whether there are other occupants of the vehicle who might pose a danger to the officers.

Indeed,
it seems to us that a contrary holding would not only be

irreconcilable

with, but arguably undermine altogether, the caselaw from the

Supreme Court that was developed specifically for the purpose of

pro7
tecting officer safety during what are, in today's society,

frighteningly

perilous encounters.

Even where the interiors of vehicles are fully visible, "roadside

encounters between police and suspects are especially hazardous,"

Long, 463 U.S. at 1049, with as many as "30% of police shootings

occur[ing] when a police officer approache[s] a suspect seated in

an

automobile," Mimms, 434 U.S. at 110; see also Adams v. Williams, 407 U.S. 143, 148 n.3 (1972). In fact, as the Court noted recently

in

Wilson, in 1994 alone, 5,762 assaults on police officers occurred

during the course of traffic pursuits or stops. See Wilson, 65

U.S.L.W.

at 4125 (citation omitted). Thus, "it [is]`too plain for argument'"

that

the governmental interest in officer safety during traffic stops is

substantial. Id. at 4125 (quoting Mimms, 434 U.S at 110).

When, during already dangerous traffic stops, officers must

approach vehicles whose occupants and interiors are blocked from

view by tinted windows, the potential harm to which the officers

are

exposed increases exponentially, to the point, we believe, of

unconscionability. Indeed, we can conceive of almost nothing more dangerous to a law enforcement officer in the context of a traffic stop

than

approaching an automobile whose passenger compartment is entirely

hidden from the officer's view by darkly tinted windows. As the

officer exits his cruiser and proceeds toward the tinted-windowed

vehicle,

he has no way of knowing whether the vehicle's driver is fumbling

for his driver's license or reaching for a gun; he does not know

whether he is about to encounter a single law-abiding citizen or to

be

ambushed by a car-full of armed assailants. He literally does not

even

know whether a weapon has been trained on him from the moment

the stop was initiated. As one officer put the obvious: "If the

suspect

has a weapon, I might not see it until he rolls down the window. He

may just shoot me through the window."3 If, as the Court has

noted,

_________________________________________________________________

3 Leef Smith, "They're Dark No More," The Washington Post, Dec. 4,

1996, at VO4 (explaining that suspected gang members often drive

around "in cars whose windows are all but blacked out," using the

cover
created by the tinting to "hide illegal activities") (statement of

Officer

Linda Hudson); see also, e.g., Norman Peckham, "Phoenix Now Enforcing Window Tint Law," The Tucson Citizen, March 17, 1995, at 9E

("Heavy tint may conceal the fact that the occupant may have a

8
officers face an "inordinate risk" every time they approach even a

vehicle whose interior and passengers are fully visible to the

officers,

Mimms, 434 U.S. at 110, the risk these officers face when they

approach a vehicle with heavily tinted windows is, quite simply,

intolerable. In fact, it is out of recognition of just such danger that

at least

twenty-eight states, including Maryland, have now enacted laws

either regulating or altogether prohibiting the use of tinted

windows

on vehicles in their states.4

_________________________________________________________________

weapon.") (statement of Officer Eugene Mejia); Caroline Lemke, "In

the

Dark: Tinted Windows Give Cars A Cool Look, But Some Are Illegal,"

The Los Angeles Times, February 13, 1992, at 2 (When a car has

tinted

windows "[i]t is hard for an officer to see into [that] car. A gun

could be

pointed at you. It puts you in a vulnerable position.") (statement

of Officer John Marinez).

4 See Alabama Code § 32-5-215(e) (Michie 1996); Arkansas Code of

1987 Ann. § 27-37-306 (1987-95); Connecticut Gen. Stat. Ann. § 14-

99g(b) (West 1996); Delaware Code. Ann. § 21-4313 (1975-95); Code

of

Georgia § 40-8-73.1 (1982-96); Idaho Code§ 49-944(1) (Michie 1948-

96); West's Smith-Hurd Illinois Comp. Stat. Ann.§ 5/12-503 (West

1996); West's Ann. Indiana Code § 9-19-19-4(c) (West 1996);

Baldwin's

Kentucky Rev. Stat. Ann. § 189.110(3) (Banks-Baldwin 1996); West's

Louisiana Stat. Ann. § 361.1 (West 1996); Maine Revised Stat. Ann.

§ 29-1916(3) (1996); Ann. Code of Maryland§ 22-406 (Michie 1957-

96); Michigan Comp. Laws Ann. § 257.709 (1996); Mississippi Code

1972 Ann. § 63-7-59 (1995); Montana Code Ann.§ 61-9-405 (1978-95);

Nebraska Rev. Stat. of 1943 § 60-6,257 (1995); Nevada Rev. Stat.

§ 484.6195 (1995); New Hampshire Stat. Ann.§ 265-95 (1995); Gen

Stat. of North Carolina § 20-127(b) (Michie 1944-96); North Dakota

Century Code § 39-21-39 (Michie 1995); Baldwin's Ohio Rev. Code

Ann. § 4513.241 (Baldwin-Banks 1996); 1995 Oregon Rev. Stat.

§ 815.221 (1995); Code of Laws of South Carolina 1976 Ann. § 56-5-

5015 (1995); Tennessee Code Ann. § 55-9-107 (1955-96); Utah Code,

1953 § 41-6-149 (Michie 1987-96); Code of Virginia §

46.2-1052(C)(1)

(Michie 1982-96); Wyoming Stat. 1977 § 31-5-962(b) (1977-96);

West's

Revised Code of Washington Ann. § 46.37.430(5) (1996). The District

of Columbia and Puerto Rico have done so as well. See District of

Columbia Code 1981 § 40-718.1 (1981-96); Laws of Puerto Rico Ann.

§ 9-1134 (1994).
9
In contrast to the indisputably substantial government interest in

protecting its law enforcement officials from the danger that

inheres

in the lawful stop of a vehicle with heavily tinted windows, the

privacy and liberty interests implicated by the opening of such a

vehicle's door for the limited purpose of determining whether the

vehicle

is occupied by one or several persons and whether the vehicle's

occupants are armed or have access to weapons, are, although not unimportant, comparatively minor, and will always be so.

It is axiomatic, of course, that "[o]ne has a lesser expectation of

privacy in a motor vehicle," in part because "its function is

transportation and it seldom serves as one's residence or as the repository

of

personal effects." United States v. Chadwick, 433 U.S. 1, 12 (1977)

(quoting Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality

opinion)). Because of this, and the fact that vehicular travel is, of

necessity, highly regulated, individuals traveling in vehicles "must

expect

that the State, in enforcing its regulations, will intrude to some

extent"

on their privacy. New York v. Class, 475 U.S. 106, 113 (1986).

But, apart from the fact that there is a considerably reduced

privacy

interest in a vehicle's interior passenger compartment as a matter

of

law, the driver and other occupants of a lawfully stopped vehicle

have

already had their liberty curtailed. Moreover, because the driver

must

comply with routine requests for identification and registration,

he

will be required at some point during the brief detention to expose

the

interior compartment of his vehicle to view through at least one

window, if for no other reason than to interact with the officer. Of

course,

when the driver lowers the window, then much if not all of the

car's

interior will be visible to the officer. The additional

interference with

the occupants' privacy interests affected by the opening of one of

the
vehicle's doors would seem minimal when measured against the enormous danger law enforcement officers face when they approach a

vehicle with heavily tinted windows. Such an intrusion would seem

considerably less than the intrusions affected by ordering the

driver

and passengers to exit the vehicle and to proceed to the shoulder

of

the road, which were held in Mimms and Wilson, respectively, to be

"de minimis" in comparison to the states' interests in protecting

their

law enforcement personnel under circumstances far less inherently

dangerous than those existing when the stopped vehicle has heavily

tinted windows. Not only does the person subjected to the limited

10
search entailed in the opening of the vehicle door not have his

entire

body exposed to the view of the officers and public, he also

retains

his liberty interest in remaining seated in his automobile during

the

duration of the detention. Indeed, the actual invasion of privacy

entailed in an officer's opening of the vehicle door is

indistinguishable from, if not precisely the same as, that which occurs when an

occupant is required to open a door to exit a vehicle pursuant to

an

order given under the authority of Mimms or Wilson.

2.

Even if there were reasonable alternatives to allowing officers to

open the door of a vehicle with heavily tinted windows in order to

ascertain whether the driver is armed and whether there are other

occupants in the vehicle, we would hesitate to impose them on the

law enforcement community as a matter of constitutional law. As the

Supreme Court has been at pains to observe, during Terry-type

stops,

officers "must make . . . `quick decision[s] as to how to protect

[themselves] and others from possible danger'" at times when they are

"particularly vulnerable," and thus it has "not required that officers

adopt

alternate means to ensure their safety in order to avoid the

intrusion

involved in [such an] encounter." Long , 463 U.S. at 1052 (quoting

Terry, 392 U.S. at 28); see also id. at 1052 n.16. That is, the

Court

has scrupulously avoided substituting its judgment for that of law

enforcement as to how best to ensure officer safety.

With that said, however, we are at a loss to identify an acceptable

alternative to a rule such as that we suggest would be justified.

Upon

a moment's reflection, it becomes apparent that neither requiring

officers (while in their cruisers or as they proceed toward the stopped

vehicle) instead to order occupants to exit the vehicle nor

requiring

that they order that all of the vehicle's doors be opened,

represents an

acceptable, or even a reasonable, alternative. To require officers

to

order the vehicle's occupants to exit as the officers approach the

stopped vehicle exposes the officers to the very danger to which we

believe it is unconscionable to subject them, namely, that they

might
be fired upon as they approach the vehicle. As the Court observed

in

Terry, it is by definition "unreasonable to require that police

officers

take unnecessary risks in the performance of their duties." 392

U.S.

at 23. On the other hand, to insist that officers remain in their

vehicles

11
and order the occupants out ignores the fact that, with heavily

tinted

windows, the officers could never know whether all of the vehicle's

occupants had exited; and, eventually, the officers would still be

required under this alternative to approach a vehicle which,

insofar as

the officers could know, still held passengers who might be armed

and dangerous. Ordering that the vehicle's doors be opened, of

course, allows the vehicle's occupants legitimately to move about

the

vehicle in ways that would enable them to access available weapons,

which represents a separate danger unto itself.

Therefore, in the end, we believe, it will be impractical, if not

impossible, for law enforcement officers to neutralize the dangers

to

which they are exposed by virtue of heavily tinted windows. There

simply do not appear to be any alternatives to the bright-line rule

we

suggest, which would infringe less on the residual privacy

interests

that drivers and passengers retain in the interior compartment of

a

lawfully stopped vehicle, yet still allow law enforcement officers

to

take that control of the situation that enables them to minimize

the

risk of harm to themselves and to the vehicle's occupants. Cf.

Wilson, 65 U.S.L.W. at 4126 ("The risk of harm to both the police and the

occupants is minimized if the officers routinely exercise

unquestioned

command of the situation." (quoting Michigan v. Summers, 452 U.S.

692, 703 (1981)). A bright-line rule that officers could always

pursue

the course of opening the door of a tinted-windowed vehicle when,

in their informed judgment, such an act appears necessary to

protect

their safety, would not render the stops of such vehicles

risk-free, but

it would at least reduce to an extent the enormous danger to which

law enforcement authorities are exposed as a consequence of the

advent of tinted windows.

B.

Even absent a Mimms/Wilson-type per se rule that officers may, in

the circumstances we have described, open a vehicle's door to

determine the number of occupants within and whether any of those occupants are armed or have access to weapons, however, Officer

Mackel's opening of Stanfield's passenger door was fully authorized

under the principles, if not by the direct holdings, of Terry, Long
and

Buie. Officer Mackel's belief that he was potentially in danger as

he

approached Stanfield's Pathfinder was imminently reasonable; it

12
would be folly to suggest otherwise. Under Terry , Long and Buie,

therefore, it is clear that Officer Mackel could have conducted a

protective search of the entire interior compartment of Stanfield's

vehicle

to ensure his safety and that of his partners. It follows a

fortiori that

Officer Mackel's much more limited search of merely opening the

Pathfinder's door was reasonable under the Fourth Amendment.

As our previous discussion suggests, we are convinced that the

presence of windows so tinted that the vehicle's interior

compartment

is not visible is, in itself, a circumstance that would cause an

officer

reasonably to believe that his safety might be in danger -- as the

district court held. When the fact of the tinted windows on

Stanfield's

Pathfinder is considered together with the other circumstances

informing Officer Mackel's judgment as he approached Stanfield's

vehicle on the morning of April 29, 1996, we are satisfied that no

reasonable officer would have failed to appreciate the potential

danger

confronting Officer Mackel and his partners.

First, Stanfield was, at the time of the stop, in violation of the

state's traffic laws, having parked his Pathfinder in the middle of

a

two-way street, which was not passable by two cars simultaneously.

See Stanfield, 906 F. Supp. at 301. Second, Stanfield's vehicle was

stopped in the early morning in a relatively deserted area of town.

See

id.; J.A. at 128. Third, Stanfield's vehicle was stopped in an area

of

Baltimore known for its open narcotics trafficking and high crime

rate. See Stanfield, 906 F. Supp. at 301; J.A. at 53. As we have

often

noted, where there are drugs, there are almost always guns. And, as

the Supreme Court has recognized, in a high crime area, "the

possibility that any given individual is armed is significant." Buie, 494

U.S.

at 334 n.2. Fourth, Stanfield was driving a vehicle which,

according

to the officers' testimony and the district court's factual

finding, "is

of the class of four wheel drive vehicles favored by drug dealers,"

and

is also "the preferred target of car thieves." Stanfield, 906 F.

Supp. at

301 & n.3; J.A. at 163-64. Fifth, as the district court found, the
officers did not know and could not determine, because of the tinting

on

the windows, "whether Stanfield was alone or whether any weapon

was within arms reach of the defendant." See Stanfield, 906 F.

Supp.

at 303. And, sixth, as the district court found, Stanfield had been

seen

by the officers conversing with William Staten, a known drug

dealer,

immediately prior to his encounter with Officers Mackel, Buie and

13
Hamel. Id. at 301, 304 n.10; J.A. at 151-52, 237 (testimony of

Officer

Mackel); J.A. at 19 (Government's Memorandum of Law in Response

to Defendant's Motion to Suppress Evidence). 5 Only the most fool-

(Text continued on page 16)

_________________________________________________________________

5 Although the government opposed Stanfield's suppression motion,

see Government's Memorandum of Law in Response to Defendant's

Motion to Suppress Evidence, J.A. at 18-40, on appeal it

inexplicably

conceded error and then went to quite unusual lengths to have the

case

decided on the briefs and without oral argument. Unwilling to

reverse the

district court's judgment summarily, we ordered the reluctant

Assistant

United States Attorney, Philip S. Jackson, to appear and argue the

case.

When confronted by the court with the Supreme Court authorities

described above, and questioned why he was unable even to advance

good-faith arguments before this court in support of the district

court's

judgment, Mr. Jackson represented to the court that he had

confessed

error solely because, in his view, there was no basis for the

district

court's finding that Staten was a known drug dealer, a view that

was

nowhere mentioned in the government's three and one-half page

brief.

Mr. Jackson thereafter, however, conceded that neither he nor the

United

States had any basis at all for challenging the district court's

finding as

clearly erroneous, ultimately acknowledging that if that finding

were sustained, the United States had improperly confessed constitutional

error.

We find the district court's finding to be amply supported by the

record, especially the testimony of Officer Mackel, in response to

questions from Stanfield's counsel:

Q: What really happened here was that you were on routine

patrol, in your bullet proof vests, and you saw Mr. Stanfield

talking to someone who you knew, isn't that correct?

A: Once I pulled into the block, that is correct. I recognized

who it was.

...
Q: . . . Now, when you saw Mr. Stanfield talking to someone,

isn't it true that that is why you really stopped your vehicle

and

got out of the car and started investigating Mr. Stanfield?

A: No.

Q: Isn't it true that that person [Staten] you had known

through

previous, I guess through some previous dealings, that he

might

be or was a law breaker?

A: Yes, I had dealings with Mr. Staten before.

14
Q: And the real reason you got out of the car, all three of

you,

had nothing to do with being double parked, but you wanted to

see what was up, isn't that correct?

A: No, that is not true.

Q: And you really, all you really had was a hunch and you just

wanted to go in and see what was up?

J.A. at 152.

It is plain from this exchange between defendant's own counsel and

Officer Mackel that defense counsel himself understood that Officer

Mackel had previously had "dealings" with Staten in connection with

drug transactions. Stanfield even contended to the district court

that, as

the officers exited their cruiser, "one of the officers then

shouted up to

William [Staten] and asked [Staten] whether he had stopped dealing

drugs." See J.A. at 238.

It is plain that defense counsel's strategy was to develop a case

that the

officers had relied upon the pretext of Stanfield's traffic offense

to investigate their "hunch" that, because Stanfield was talking to a known

drug

dealer, he might be engaged in a drug transaction, and, in fact,

this was

the very argument defendant advanced before the district court, see

J.A.

at 238 (opinion of district court) ("Stanfield argues that the

officers were

not attracted to him because of any traffic violation but because

they

were investigating drug trafficking."). Indeed, although Stanfield

(for

obvious reasons) does not mention the officers' previous dealings

with

Staten in his submissions to this court, one of Stanfield's two

assignments of error from the district court's denial of his suppression

motion

was that the officers acted only on this hunch. See Appellant's Br.

at 2-

9.

It is evident, therefore, that the district court's finding that

Stanfield

was talking with a man known by the officers to be a drug dealer is

unassailable. The Assistant United States Attorney himself, albeit in
direct

contradiction of his own representations before us, even

represented to

the district court that "[a]n officer recognized th[e] individual

[to whom

Stanfield was talking] as William Staten, an individual about whom

[the

officer] had received information indicating Staten's involvement

in the

distribution of controlled substances." See Government's

Memorandum

of Law in Response to Defendant's Motion to Suppress Evidence, J.A.

at 18, 19.

15
hardy would not have believed that his safety was"potentially" in

danger, see Long, 463 U.S. at 1051, as he approached Stanfield's

Pathfinder.

There was more reason for Officer Mackel to believe that his safety

might be in danger than there was in Long for Deputies Howell and

Lewis to believe that their safety might be in danger. The Supreme

Court there held that Howell and Lewis were "clearly justified" in

their conclusion that Long might pose a danger to them were he

allowed to reenter his vehicle because (1) "[t]he hour was late and

the

area rural," (2) Long had been speeding and had swerved into a

ditch,

(3) Long had appeared to be under the influence of an intoxicant,

and

(4) the officers had seen a hunting knife on the floorboard of

Long's

car.6 463 U.S. at 1050. The Court readily reached this conclusion

notwithstanding that the officers had already completed their

detention

of the suspect without incident; they knew that there were no other

occupants in Long's vehicle; they also knew that there was no one

else in the vicinity who could pose an immediate threat to their

safety;

_________________________________________________________________

6 When listing the circumstances supporting the reasonableness of

the

officers' belief that they might be in danger if Long were allowed

to

reenter his vehicle, the Court did, as noted, mention that the

officers had

earlier seen the hunting knife on the floorboard of Long's

automobile. It

is relatively clear, however, that the knife was mentioned more in

support of the court's alternative holding that the search of Long's

person

was also reasonable, and that the presence of the knife played

little, if

any, role in the Court's determination that Officers Howell and

Lewis

were reasonable in their belief that their safety might be at risk

if Long

were allowed to reenter his car, see 463 U.S. at 1050 & n.15. When

it

mentioned the knife, the Court even noted that " Long was not

frisked

until the officers observed that there was a large knife in the

interior of

the car into which Long was about to reenter," id. at 1050

(emphasis
added), and, as the Court had noted earlier, after observing the

knife on

the floorboard, "[t]he officers [had] stopped Long's progress and

subjected him to a Terry protective pat-down." Id. at 1036. As the

Court

explained, the question with respect to the search of the vehicle's

passenger compartment was whether the officers acted "unreasonably in

taking

preventive measures to ensure that there were no other weapons

[other

than the knife] within Long's immediate grasp before permitting him

to

reenter his automobile." Id. at 1051 (emphasis added).

16
they knew that Long did not have a weapon on his person; they had

determined that, although Long was not impaired sufficiently that

he

could not drive, he was unlikely to initiate an assault on the

officers;

and they had reason to believe that Long wished to leave the scene

without further involvement with the authorities.

In contrast, here, Officers Mackel, Buie and Hamel had just initiated their encounter with Stanfield, who was driving a vehicle not

uncommonly associated with drug activity; they were in a high crime

area known for its open drug trafficking; they had, only moments

earlier, seen Stanfield talking with a known drug dealer; they did not

know whether Stanfield was alone or accompanied by others; they

were unable, because of the tinting of the windows, to determine

whether Stanfield, or any other occupants of the vehicle, were

presently armed or had ready access to weapons; and they had no reason

to think Stanfield might be incapacitated in such a way as actually

to

reduce any threat he might pose to them.

If there was less reason for Officer Mackel to believe that he

might

be in danger than there was in Terry for Officer McFadden to

believe

he might be in danger, we are satisfied that the difference is not

significant enough to warrant a different conclusion as to the

reasonableness of Officer Mackel's perception of possible danger, especially

given the greater vulnerability of the officers here because of the

heavy tinting of the Pathfinder's windows. Officer McFadden had

observed conduct by Matthew Terry and his companions that was

entirely innocent in itself, although suspicious to McFadden, a

trained

officer, who recognized the conduct as "consistent with [an]

hypothesis that the[ ] men were contemplating a daylight robbery." Terry,

392

U.S at 28. Under these circumstances, observed the Court, it was

reasonable for Officer McFadden to assume that one or more of the men

might be armed. Here, of course, Stanfield was not engaged in

entirely innocent behavior; he was actually committing an offense,

albeit a relatively minor traffic offense, when he was stopped.

And,

it bears repeating, he was stopped in an area of the city known for

its

open drug trafficking, in a vehicle frequently associated with drug

activity, and he was talking with a known drug dealer. A trained

offi-
cer certainly would be as warranted in believing that his safety

might

be in danger in these circumstances as in those present in Terry. Of

course, in neither instance need the officer have been "absolutely

cer17
tain that the individual [was] armed; the[only question] is whether

a

reasonably prudent man in the circumstances would[have been] warranted in the belief that his safety or that of others was in

danger."

Terry, 392 U.S. at 27. As to this question, in this case, we have

no

doubt whatsoever.

Although the Court in Buie did not itself resolve the ultimate

issue

of whether the protective sweep undertaken by the officers was

justified under the Terry and Long standard, which the Court there held

was applicable to the officers' sweep of Buie's home, the Court

specifically analogized law enforcement's interest"in taking steps to

assure themselves that the house in which a suspect is being, or

has

just been, arrested is not harboring other persons who are

dangerous

and who could unexpectedly launch an attack," to the "immediate

interest of the police officers [in Terry and Long] in taking steps

to

assure themselves that the persons with whom they were dealing were

not armed with, or able to gain immediate control of, a weapon that

could unexpectedly and fatally be used against them." Buie, 494

U.S.

at 333. The Court noted that an in-home arrest, unlike the typical

encounter on the street, "puts the officer at the disadvantage of

being

on his adversary's `turf[,]' [and that] [a]n ambush in a confined

setting of unknown configuration is more to be feared than it is in

open,

more familiar surroundings." Id. Even so, however, the Court was

hesitant to characterize either the risk of danger during an

in-home

arrest or the risk of danger in an "on-the-street or roadside

investigatory encounter" as the greater. Id. Based upon these overarching

observations concerning the relative risks associated with in-home

arrests and traffic stops, and with due regard to the relevant

specifics,

we are even unprepared to say that the risk of danger to Officers

Mackel, Buie, and Hamel was less pronounced than was the risk to

the officers in Buie.

First, and most significantly, any difference between the inherent

risk existing during an in-home arrest and a lawful investigatory

traffic stop due to the officers' lack of familiarity with the

surroundings,
was minimized, if not entirely eliminated, in this case, because

the

interior of Stanfield's vehicle was not visible to the officers.

Through

the use of heavy tinting, the driver and occupants of a vehicle

effectively secure for themselves, as Stanfield did in this case, a

"confined

setting of unknown configuration," forcing law enforcement authori18
ties to confront them on their own "turf"-- not unlike if they were

hiding in their home. Second, some six or seven officers were

present

at Buie's residence to affect the arrest, whereas only three

officers,

were investigating Stanfield. Third, the officers in Buie had

proceeded

to Buie's house for the specific purpose of arresting Buie and were

fully prepared for anything that might develop in connection with

that

assignment; unlike Officers Mackel, Buie, and Hamel, they had not

simply come upon Buie unexpectedly in circumstances requiring a

quick, on-the-street judgment. Fourth, the officers had already

arrested Buie and had only to depart the residence and premises; at

the time of their search of Buie's basement, the officers were not

merely beginning their investigatory detention, as in the case sub

judice, when a confrontation is more likely. Fifth, two days had

lapsed since the robbery in Buie, and, although it was certainly

not

unreasonable to think someone (in particular, Buie's accomplice)

might be hiding in the house with Buie, the officers had nothing

specific to support such an inference. As the dissenting judge on the

Maryland Court of Appeals said in his opinion on the remand from

the Supreme Court:

From the information elicited at the suppression hearing, we

do not know whether Allen [Buie's accomplice] had been

arrested or was still at large. The testimony at the hearing

does not give any indication that Allen was seen entering or

leaving Buie's home during the three day surveillance

period. In fact, there was no testimony that placed Allen at

Buie's home at any time prior to Buie's arrest. Neither is

there information as to what type of relationship Buie and

Allen had; that is, we do not know whether they were longtime friends who spent a great deal of time together or

whether the only time they were ever together was the night

of the alleged robbery.

The inconclusive surveillance... does not help the State.

It surely does not permit the inference that the police

thought Allen was at Buie's house, for if they had believed

that they would have brought along his arrest warrant as

well as Buie's.

Buie v. Maryland, 580 A.2d 167, 173-74 (Md. 1990) (Adkins, J., dissenting). Here, of course, while Officers Mackel, Buie, and Hamel

19
likewise had no specific reason to believe that there were other

passengers in the Pathfinder, they did know that there was someone in

the vehicle (Stanfield) who, for the reasons earlier recited,

potentially

might be dangerous.

In contrast to the substantial state interest in having the

investigatory detention necessitated by Stanfield's traffic infraction

conclude

without harm to its law enforcement officials, the liberty and

privacy

interests which Stanfield attempts to protect are, for the reasons

previously discussed, notably insubstantial. Additionally, because, even

according to Stanfield, the driver's side window was down when the

officers approached the Pathfinder, the interior of Stanfield's

car, as

well as contents lying exposed on the back seat, were fully open to

the view of the officers and passersby.7 Even had all of the

Pathfinder's windows been raised, the undisputed evidence in the record

before us is that Stanfield's tinted windows would not have

prevented

passersby from viewing the Pathfinder's interior under all lighting

conditions. See J.A. at 88. Hence, it was only because of the mere

happenstance of cloud cover that the back seat of Stanfield's car

was

not visible, just as in Texas v. Brown , 460 U.S. 730 (1983), the

interior of the open glove compartment was not visible to the officer

only

because of the happenstance that the stop occurred at night. Therefore, as the district court alternatively held, it is questionable

whether

Stanfield had any privacy right at all in those portions of his

interior

passenger compartment relevant in this case, for there is no

legitimate

expectation of privacy "shielding that portion of the interior of

an

automobile which may be viewed from outside the vehicle by either

inquisitive passersby or diligent police officers." Id. at 740. _________________________________________________________________

7 This fact, of course, suggests that the district court's denial

of Stanfield's suppression motion might well be sustainable on the

alternative

ground that the cocaine would inevitably have been discovered by

Officer Buie or Officer Hamel, even had it not been discovered by

Officer
Mackel. Where the preponderance of evidence establishes that the

information would "ultimately or inevitably" have"been discovered by

means

wholly independent of any constitutional violation," the inevitable

discovery exception to the exclusionary rule allows the prosecution to

admit

the evidence obtained through an illegal search. Nix v. Williams, 467

U.S. 431, 443 (1984).

20
Assuming that Stanfield did have some residual privacy interest in

the interior compartment of his car, the additional intrusion on

that

interest that resulted from the mere opening of the passenger door

was

inconsequential. There is, of course, no comparison between the

"severe," "surely... annoying, frightening, and perhaps

humiliating"

pat-down of the person authorized by the Court in Terry, 392 U.S.

at

24-25, and the incremental additional intrusion on Stanfield's

privacy

interests affected by the mere opening of his passenger door. Similarly, the protective sweep of the home authorized by the Court in

Buie, pursuant to which the police were authorized to search

closets,

showers, attics, studies, basements, and underneath beds, was much

more offensive to privacy interests than was the search here. And,

obviously, the opening of the car door and perusal of the car's

interior

from the outside interfered less with Stanfield's privacy interest

than

would have a complete search of the vehicle's interior permitted

under Long, which could have included visual inspection of any area

in which a weapon might have been secreted.

We even believe, as explained supra, that the intrusion affected by

Officer Mackel's mere opening of the passenger door of Stanfield's

Pathfinder was considerably less than those intrusions authorized

as

a matter of course by the Court in Mimms and Wilson. The opening

of the door of the Pathfinder exposed to view little more of

Stanfield's

body than was already exposed to view through the open driver side

window and little more of the interior compartment than was visible

through that same window. And, in contrast to the action that may

be

ordered under Mimms and Wilson, the mere opening of the door did

not require Stanfield (nor would it have required any other

occupants

of the vehicle) to move at all.

In sum, when the state's substantial interest in ensuring that its

investigatory detention of Stanfield occurred without incident to

its

law enforcement agents is weighed in the balance with Stanfield's

privacy interests implicated by Officer Mackel's search, there can be

no

doubt but that the search was reasonable under the circumstances

and

appropriately limited in scope. What was said of Officer McFadden's
actions in Terry is no less true of Officer Mackel's actions here:

We cannot say his decision [to open the passenger door to

Stanfield's Pathfinder in order to determine whether there

21
were other passengers in the vehicle or whether the driver

or other had access to weapons] was the product of a volatile or inventive imagination, or was undertaken simply as

an act of harassment; the record evidences the tempered act

of a policeman who in the course of an investigation had to

make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.

392 U.S. at 28. To hold otherwise than we do today would be "to

require that police officers take unnecessary risks in the

performance

of their duties," Terry, 392 U.S. at 23, something which, as the

Supreme Court has consistently held, the Constitution does not

require.8

III.

Because Officer Mackel was engaged in a reasonable protective

search when he opened Stanfield's passenger door for the limited

purpose of determining whether Stanfield was armed and whether there

were any other occupants within the vehicle who might pose a danger

to him or his partners, and because the cocaine that Stanfield

seeks

to suppress was seen by Officer Mackel in plain view during the

conduct of this reasonable search, the district court's denial of

Stanfield's

motion to suppress is affirmed.

AFFIRMED

_________________________________________________________________

8 Stanfield also argues that the initial seizure of his vehicle was

illegal

because the officers stopped his vehicle in order to investigate

possible

drug trafficking, not, as the officers contended, because he was in

violation of the state's traffic laws. See supra note 5. Because, as

the Supreme

Court has recently held, an officer's subjective state of mind in

stopping

a vehicle is irrelevant to the constitutionality of the stop, see

Robinette, 117 S. Ct. at 420 ("`Subjective intentions play no role in

ordinary,

probable-cause Fourth Amendment analysis.'" (quoting Scott v.

United

States, 436 U.S. 128, 138 (1978)); Whren , 116 S. Ct. at 1774

("[Our]

cases foreclose any argument that the constitutional reasonableness

of a

traffic stop depends on the actual motivations of the individual
officers

involved."), the district court was unquestionably correct in

rejecting this

argument.

22