## F I L E D United States Court of Appeals Tenth Circuit 

### June 8, 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-1062 BRYAN JAMES DENNISON,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Colorado (D.C. No. 03-CR-197-MK)

Andrew A. Vogt, Assistant United States Attorney (J ohn W. Suthers, U.S. Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee. Raymond P. Moore, Federal Public Defender, Denver, Colorado, for DefendantAppellant.

Before SEYMOUR , Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HENRY , Circuit Judge.

HENRY , Circuit Judge.

Bryan James Dennison pleaded guilty in November 200 3 to one count of-2-

unlawful possession of a machine gun and aiding andabetting its possession, in violation of 18 U.S.C. §§ 922(o), 924(a)(2), and 2. In his conditional plea agreement, Mr. Dennison reserved the right to appea l the district court’s denial of his motion to suppress physical evidence and statem ents from a warrantless search. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s denial of Mr. Dennison’s motion to suppress

.

I. BACKGROUND At approximately 3:00 a.m. on January 21, 2003, Jam es Dennison and Keith Allen were parked in an Englewood, Colorado apartme nt complex that had a high incidence of nighttime car theft. Mr. Dennison was in the driver’s seat of his gold Ford truck with a “topper” shell; Mr. Allen wa s in the passenger’s seat. The lights and engine were turned off. Officer Christi an Contos, patrolling the area, pulled up alongside the truck and asked what the tw o men were doing. They told Officer Contos that they had lost the keys to a Che vy pickup and were waiting for a tow truck; the Chevy vehicle was in a parking lot“an extensive distance away.” Rec. vol. I, doc. 59, at 2 (Dist. Ct. Order, filed Oct. 17, 2003) [hereinafter “Dist. Ct. Order”]. Officer Contos testified that he sensed “something didn’t seem right” after the first encounter. Rec. vol. II, at 15-16 (Hr’g on Motion to Suppress, dated-3-

Sept. 18, 2003). He drove around the apartment comp lex and returned to the parking lot approximately 20-30 seconds later. Mr. Dennison’s truck, with its engine and lights now on, had moved closer to the C hevy truck to be towed. Officer Contos pulled up to the men again and got o ut of his patrol car, to further investigate and to “check and make sure [the Chevy was] their truck.” Id. at 18. Mr. Allen mentioned that he had been involved in a “domestic” and was wanting to get the Chevy truck before his girlfriend came a nd damaged it. Id. at 19. After hearing Mr. Allen’s explanation, Officer Contos rem embered a recent police bulletin to watch for a gold station wagon in the v icinity of the apartment complex because the police wanted a driver or passe nger for a domestic violence incident. Though the men were in a gold truck with a cab rather than a gold station wagon, Officer Contos concluded that Mr. Al len was the wanted suspect because of his admitted involvement in a “domestic” and the men’s proximity to the area noted in the police bulletin. Officer Contos, anticipating that Mr. Allen was “pr obably going to get arrested,” requested identification from the two me n. Id. at 20, 23-24. Mr. Dennison produced a driver’s license, from which Of ficer Contos determined that Mr. Dennison had no outstanding warrants or other p olice alerts. Mr. Allen had no identification, but Officer Contos obtained a wa rrant check upon his full name. Officer Contos learned that Mr. Allen had four outs tanding arrest warrants,-4-

including a felony arrest warrant for a weapons vio lation. Officer Contos then called for backup assistance, and Officers Joseph W ilson and Nancy Schwan arrived shortly. The officers ordered Mr. Allen to exit the truck, a rrested him, and placed him in the back seat of a police car away from Mr. Dennison’s truck; Officers Wilson and Schwan had their guns drawn during Mr. A llen’s arrest. The officers then asked Mr. Dennison to step out of the driver’s side because they considered it dangerous to execute a search incident to Mr. Al len’s arrest if someone were still inside. Mr. Dennison was told that he was no t under arrest, but officers performed a pat-down search and handcuffed him. Ac cording to Officer Contos, these steps were taken because Mr. Allen was wantedon a weapons violation and “officer safety dictates that [officers] err on the side of caution.” Id. at 30. Mr. Dennison refused consent to search his truck, b ut officers believed that they were authorized to perform a search incident t o Mr. Allen’s arrest. When Officer Wilson started searching the truck’s cab, O fficer Contos was standing next to Mr. Dennison, who was handcuffed, near the rear of the truck on the passenger’s side. Officer Contos testified that wh en Officer Wilson began the search of the passenger compartment, Officer Schwan“was getting ready, if she hadn’t already, to leave” the scene with Mr. Allen to do the domestic violence paperwork. Id. at 35.-5-

Officer Wilson soon discovered a loaded shotgun on the back seat under a blanket. After this discovery in the back seat, Of ficer Contos shined his flashlight through a window of the topper shell andsaw the vented barrel of a machine gun partially exposed under a blanket insid e the cargo bed. Id. at 38. Officer Wilson next found a loaded handgun and drug paraphernalia in the front and back seats. Officers then determined that they had probable cause to arrest Mr. Dennison for drug and weapons charges and to co nduct an inventory search of the entire vehicle. Mr. Dennison was arrested a nd placed in the patrol car; upon his arrest, officers impounded and inventoriedthe truck. After opening the locked topper shell, officers recovered in the carg o bed the machine gun that Officer Contos had earlier identified. A second ma chine gun was later found in a canvas case in the back floorboard of the back seat . Together, officers found five handguns, three rifles, three shotguns, and two mac hine guns in Mr. Dennison’s truck. Both Mr. Allen and Mr. Dennison were indicted and c harged with unlawful possession of a machine gun and aiding and abetting its possession, in violation of 18 U.S.C. §§ 922(o), 924(a)(2), and 2. Mr. Denn ison filed a motion to suppress physical evidence and statements from the warrantless search. The district court denied the motion. It concluded that (1) the second encounter between Officer Contos and the two men was a lawful stop under Terry v. Ohio ,-6-

392 U.S. 1 (1968), and (2) the warrantless search w as valid incident to Mr. Allen’s arrest. Mr. Dennison later pleaded guilty to the one-count indictment pursuant to a conditional plea agreement allowing him to appeal t he district court’s denial of his suppression motion. The district court sentenc ed Mr. Dennison to one month of imprisonment, followed by a three-year term of s upervised release that includes eleven months of home detention. He timely appeals the district court’s denial of his motion to suppress.

II. STANDARD OF REVIEW This court reviews de novo a district court’s determination of the reasonableness of a search and seizure under the Fo urth Amendment. United States v. Abdenbi , 361 F.3d 1282, 1287 (10th Cir. 2004). We look atthe totality of the circumstances in reviewing the denial of the motion to suppress. United States v. Gay , 240 F.3d 1222, 1225 (10th Cir. 2001). Furthermor e, “we accept the factual findings of the district court unless they are clearly erroneous, and view the evidence in the light most favorable to the dis trict court’s determination.” United States v. Williams , 271 F.3d 1262, 1266 (10th Cir. 2001) (internal ci tation omitted). “Reviewing courts must also defer to the ‘ability of a trained law enforcement officer to distinguish between innocentand suspicious actions.’”-7-

United States v. Santos , 403 F.3d 1120, 1124 (10th Cir. 2005) (quoting United
States v. McRae , 81 F.3d 1528, 1534 (10th Cir. 1996)).

III. DISCUSSION According to Mr. Dennison, the district court commi tted two separate errors when it denied his motion to suppress the tw o machine guns found in his truck. First, Mr. Dennison argues that the distric t court erred in finding that Officer Contos had reasonable suspicion to justify a Terry detention when he approached Mr. Dennison’s truck the second time aft er a brief initial encounter. Second, Mr. Dennison contends that the district cou rt erred when it concluded that the warrantless search of Mr. Dennison’s truckwas justified as a search incident to Mr. Allen’s arrest. A. Challenge to the second encounter Mr. Dennison maintains that Officer Contos’ second encounter with Mr. Dennison and Mr. Allen was an investigative detenti on not supported by reasonable suspicion. A lawful investigative detention of limited scope and duration does not require probable cause as long as the police officer has reasonable suspicion that the person seized is enga ged in criminal activity. Terry , 392 U.S. at 30-31. An officer making a Terry stop “must be able to articulate something more than an inchoate and unparticularize d suspicion or hunch. The-8-

Fourth Amendment requires some minimal level of obj ective justification for making the stop. That level of suspicion is consid erably less than proof of wrongdoing by a preponderance of the evidence.” United States v. Sokolow , 490 U.S. 1, 7 (1989) (internal citation and quotation m arks omitted). The district court determined that Officer Contos’ second encounter with Mr. Dennison and Mr. Allen was a lawful investigati ve detention under Terry . It noted that Officer Contos believed that “something wasn’t right” after his first encounter with the men, Dist. Ct. Order at 6, and t he district court made several factual findings in support of Officer Contos’ conc ern of criminal activity: 1. “It was 3:00 in the morning, an unusual time for citizens to be waiting for a tow truck.” Id. 2. “Mr. Dennison and Mr. Allen were seated in [Mr. D ennison’s] Ford adjacent to an apartment parking lot which was the frequent target for nocturnal car theft.” Id. 3. “The Ford did not have its lights or engine on [d uring the first encounter], was situated a substantial distance fro m the Chevy [truck to be towed], and the Chevy was not visible. ” Id. 4. During the first encounter, Mr. Dennison’s truck was parked in such a way that it was “unlikely that it would have been visible to the tow truck.” Id. 5. When Officer Santos returned, “the Ford had movedand had its lights on and the engine running.” Id. The district court erred, according to Mr. Dennis on, when it cited the change of certain factors (e.g., his Ford truck bei ng parked closer to the Chevy truck, with its lights on and engine running, durin g the second encounter) as further heightening Officer Contos’ suspicion. He further maintains that the first-9-

four factors, neither individually nor in combinati on, give rise to a finding of reasonable suspicion. Even if each separate fact or observation leading t o Officer Contos’ second encounter “is not by itself proof of any illegal co nduct,” we consider whether the facts as a whole “amount to reasonable suspicion.” Sokolow , 490 U.S. at 8; see also Terry , 392 U.S. at 22 (noting that “a series of acts, ea ch of them perhaps innocent in itself, but which taken together warran ted further investigation”). We agree with the district court that the officer’s hunch that “something wasn’t right” would not be sufficient by itself to support a finding of reasonable suspicion. Here, several specific facts taken toge ther, however, warranted the additional investigation. Mr. Dennison’s presence in a high-crime area is not, “standing alone,” enough to provide reasonable susp icion, but it may be a “relevant contextual consideration” in a Terry analysis. Illinois v. Wardlow , 528 U.S. 119, 124 (2000). “[O]fficers are not requiredto ignore the relevant characteristics of a location in determining whethe r the circumstances are sufficiently suspicious to warrant further investig ation.” Id. The parties do not dispute that, at 3 a.m., Mr. Dennison and Mr. Allen did not have keys to the Chevy truck to be towed, were “situated a substanti al distance from the Chevy, and the Chevy was not visible.” Dist. Ct. Order at6. The Supreme Court has stated that, in cases where “ the conduct justifying-10-

the stop was ambiguous and susceptible of an innoce nt explanation,” “ Terry recognized that the officers could detain the indiv iduals to resolve the ambiguity.” Wardlow , 528 U.S. at 125. Viewing evidence in the light m ost favorable to the district court’s determination, the aggregate facts support Officer Contos’ reasonable suspicion that the men’s initial explanation was not complete and that criminal activity was afoot. Officer Contos theref ore could inquire, with the second encounter, as to the identities of Mr. Denni son and Mr. Allen and validate proof of the Chevy truck’s ownership. B. Challenge to the search of Mr. Dennison’s truck The district court found that the warrantless searc h of Mr. Dennison’s truck was valid (1) incident to Mr. Allen’s arrest and (2 ) to ensure officer safety. Although Mr. Allen had been removed from the scene, the exigency for an immediate search remained. So long as Mr. Dennison remained at the scene , and in view of the totality of the facts giving r ise to Mr. Allen’s arrest (one violent crime and one weapons v iolation), there were serious and continuing concerns as to the safety of the officers based on the possibility that there were weapons in the truc k and that Mr. Dennison had access to them. Dist. Ct. Order at 10-11 (emphasis added). Officer s could “infer that Mr. Dennison could present a risk to officer safety andtake necessary safety precautions.” Id. at 11. Mr. Dennison now challenges each of the government’ s rationales to validate the warrantless search of his truck: (1) as a search incident to arrest; (2)1 The government principally contended at oral argume nt that we affirm the

district court’s decision under the plain view doctrine. Under this doctrine, we cannot validate a warrantless seizure of the machin e gun in the topper shell unless Officer Contos “was lawfully in a position from whi ch to view the object seized in plain view.” United States v. Soussi , 29 F.3d 565, 570 (10th Cir. 1994). Officer Contos was standing with Mr. Dennison near the back of the truck so that Officer Wilson could search the cab. However, the facts before us suggest that Officer Contos’s “plain view” only occurred because of and after Officer Wilson’s search of the passenger compartment. Ther efore, we must first determine whether Officer Wilson’s “initial intrusi on” to search the cab was valid. See Coolidge v. New Hampshire , 403 U.S. 443, 465 (1971). We affirm the district court’s decision on differen t grounds. See Medina v. City & County of Denver, 960 F.2d 1493, 1495 n.1 (10th Cir. 1992) (“We are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even groun ds not relied upon by the district court.”).

-11- as a search justified by officer safety concerns; a nd (3) as a search in which officers independently found evidence in plain view

. 1
1. Search incident to Mr. Allen’s arrest The district court concluded that the search of the cab was valid incident to the arrest of Mr. Allen. “[W]hen a policeman has m ade a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of the arrest, search the passenger compartment of that au tomobile.” New York v. Belton , 453 U.S. 454, 460 (1981) (emphasis added). This co urt has concluded, however, that “[a] warrantless search incident to arrest is not valid if it is ‘remote in time or place from the arrest.’” United States v. Lugo , 978 F.2d 631, 634-35 (10th Cir. 1992) (quoting Chimel v. California , 395 U.S. 752, 764 (1969)). A search-12-

incident to arrest is unlawful when a suspect is arrested, removed from the scene, and en route to the police station when the search of the arrestee’s passenger compartment begins. Id. at 635. Mr. Dennison and the government disagree about Mr. Allen’s location when the search of Mr. Dennison’s truck began. Whe n asked about Mr. Allen’s location as the search of the truck’s cab started, Officer Contos responded ambiguously: “Officer Schwan was – had Mr. Allen; and she was getting ready, if she hadn’t already, to leave to her station to d o the domestic violence paperwork on Mr. Allen.” Rec. vol. II, at 35. Tho ugh the district court validated the search as one incident to Mr. Allen’s arrest, i t did not resolve the dispute about his location when the search began. See Dist. Ct. Order at 10 (“It is . . . arguable that . . . the police car had left the sce ne [with Mr. Allen] before the search.”); id . (“Although Mr. Allen had been removed from the sc ene, the exigency for an immediate search remained.”). “When factual issues are involved in deciding a mot ion, the court must state its essential findings on the record.” F ED
. R. C RIM
. P. 12(d). “While helpful to appellate review, Rule 12[(d)] does not require detailed findings of facts as long as the essential basis of the court’s decision is apparent.” United States v. Toro-Pelaez , 107 F.3d 819, 824 (10th Cir. 1997). In light of Lugo , the district court needed to make a finding as to Mr. A llen’s location when the search-13-

began to validate it as one incident to his arrest. Because the district court declined to resolve this issue, and we cannot find facts, we therefore cannot validate the search of the truck under this rationa le. 2. Officer safety The government also argues that the search of Mr. D ennison’s cab was valid because of officer safety concerns and the ex igencies in which the search occurred. Specifically, we analyze whether officer s were justified to perform a protective sweep of Mr. Dennison’s passenger compartment.

a. Applicable Law Officers can conduct a protective search of a vehic le’s passenger compartment for weapons during an investigative det ention when officers have a reasonable belief that a suspect poses a danger. I n Michigan v. Long , 463 U.S. 1032, 1036 (1983), officers stopped to investigate a car that had swerved erratically into a ditch. The vehicle’s only occup ant met the officers near the rear of the car and, after a repeated request, produced his license. The driver did not respond to a repeated request for the vehicle regis tration, and the officers testified that the driver appeared to be under the influence of something. When the driver began walking back toward the open door of his car, officers followed and observed a hunting knife inside the car. Officers then conducted a Terry protective pat-down, revealing no weapons. Anotherofficer shined a flashlight-14-

into the vehicle’s interior to search for additiona l weapons, leading to a drug discovery. The Supreme Court validated the protective search o f the driver’s passenger compartment under the principles articulated in Terry : [T]he search of the passenger compartment of an aut omobile, limited to those areas in which a weapon may be placed or hidd en, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officers in be lieving that the suspect is dangerous and the suspect may gain immed iate control of weapons. Id. at 1049 (quoting Terry , 392 U.S. at 21). More generally, courts have noted the potential dan gers of vehicle stops. This court recognized that [a]n officer in today’s reality has an objective, r easonable basis to fear for his or her life every time a motorist is stoppe d. Every traffic stop, after all, is a confrontation. The motorist must s uspend his or her plans and anticipates receiving a fine or perhaps even a jail term. That expectation becomes even more real when the motoris t or a passenger knows there are outstanding arrest warrants or curr ent criminal activity that may be discovered during the course of the sto p. United States v. Holt , 264 F.3d 1215, 1223 (10th Cir. 2001) (en banc). Furthermore, “the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the offic er.” Maryland v. Wilson , 519 U.S. 408, 413 (1997). Officer safety is “both legitimate and weighty,” Pennsylvania v. Mimms ,-15-

434 U.S. 106, 110 (1977), and the Supreme Court has identified contexts “where the public interest is such that neither a warrant nor probable cause is required,” Maryland v. Buie , 494 U.S. 325, 331 (1990). Officers may take step s to protect themselves and others, provided the measures “are n ot too intrusive” and “the government’s strong interest in officer safety outw eighs the motorist’s interests.” Holt , 264 F.3d at 1221. For example, an officer making a traffic stop may order both the driver and passengers to exit the vehicle pending completion of the stop because “the additional intrusion on the passenger is minimal.” Wilson , 519 U.S. at 414-15; Mimms , 434 U.S. at 111. A police officer may also “perf orm a ‘patdown’ of a driver and any passengers upon reaso nable suspicion that they may be armed and dangerous.” Knowles v. Iowa , 525 U.S. 113, 118 (1998) (referencing Terry , 392 U.S. at 30-31). Aside from precedent governing officer safety conce rns, we must also examine the Supreme Court’s relevant case law addre ssing individualized suspicion and permissible inferences of a “common e nterprise” between occupants of a vehicle. Mr. Dennison had no prior criminal record but was detained late at night in a high-crime area in conj unction with the arrest of a passenger with multiple arrest warrants.
In Ybarra v. Illinois , 444 U.S. 85, 91 (1979), the Supreme Court warned that “a person’s mere propinquity to others indepen dently suspected of criminal-16-

activity does not, without more, give rise to a pro bable cause to search that person.” Officers in Ybarra had a warrant to search a tavern and its proprietor but also searched customers in the tavern. The Sup reme Court invalidated the search of Mr. Ybarra, a customer, because the gover nment could not support his patdown “by a reasonable belief that he was armed a nd presently dangerous.” Id. at 92-93. During the daylight search of the tavern , officers did not recognize Mr. Ybarra as a person with criminal history and did no t have reason to believe that he would assault them; he “acted generally in a man ner that was not threatening.” Id. at 93. The requirement in Ybarra for probable cause “cannot be undercut or avoided by simply pointing to the fact that coincid entally there exists probable cause to search or seize another and or to search t he premises where the person may happen to be.” Id. at 91. See also United States v. Di Re , 332 U.S. 581, 587 (1948) (rejecting the argument “that a person, by m ere presence in a suspected car, loses immunities from search of his person to which he otherwise would be entitled”). Maryland v. Pringle , 540 U.S. 366 (2003), however, distinguishes Ybarra and Di Re and allows officers under certain circumstance to f ind probable cause of a joint illegal enterprise absent particularized suspicion. In Pringle , an officer stopped a car for speeding at 3:16 a.m.; three occupants were in the car. When the driver opened the glove compartment to retrieve a vehicle registration, the-17-

officer saw a large amount of rolled-up money. The driver consented to a search of the car, and officers found $763 in the glove co mpartment and several bags containing cocaine elsewhere. The three occupants offered no information about ownership of the drugs and money, and the officer a rrested all three. The Supreme Court considered it “an entirely reasonable inference” that any or all occupants knew of or had control of the cocaine. Id. at 372. The Supreme Court went on to distinguish Ybarra because the three Pringle occupants “were in a relatively small automobile, not a public tavern.” Id. at 373. Furthermore, “it was reasonable for the officer to infer a common en terprise among the three men,” as the quantity of drugs and money suggested a likelihood of drug dealing. Id. b. Analysis The officer safety concerns at issue with Mr. Denni son most closely resemble those inLong . Here, officers had probable cause to arrest Mr. Allen and to consider him armed and dangerous, but the govern ment cannot demonstrate that Mr. Allen remained on the scene when the search of Mr. Dennison’s truck began. At the time of Mr. Allen’s arrest, officers had no probable cause to arrest Mr. Dennison. Therefore, we apply Long’s reasonableness test to the removal of Mr. Dennison from his vehicle: did officers have a reas onable belief, based on specific and articulable facts and rational inferen ces from those facts, to consider-18-

Mr. Dennison dangerous and able to access weapons, thus justifying a protective sweep of his passenger compartment? “[T]he issue i s whether a reasonably prudent man in the circumstances would be warrantedin the belief that his safety or that of others was in danger.” Terry , 392 U.S. at 27. We initially note that, prior to Mr. Allen’s arrestand the truck search, Officer Contos had completed a background check on Mr. Dennison and discovered no arrest warrants. Mr. Dennison also c ontends that he (1) was cooperative with officers, (2) presented identification when requested, (3) did not challenge or threaten officers when Mr. Allen was a rrested, and (4) remained nonconfrontational and cooperative even after he was r emoved from his truck. Nonetheless, in light of the totality of circumstan ces, we conclude that officers did have reasonable and articulable suspicion of Mr . Dennison’s threat to officer safety to justify the protective sweep of his truck ’s passenger compartment. First, officers here had reason to believe that weapons may be found in Mr. Dennison’s truck. Prior to Mr. Allen’s arrest, off icers knew that Mr. Allen had “about four” arrest warrants, including a felony ar rest warrant for a weapons violation, and, importantly, admitted involvement w ith a “domestic” dispute earlier that evening. Rec. vol. II, at 26-27. Ourcourt has recognized that “[r]esort to a loaded weapon is an increasingly pla usible option” when a “motorist or a passenger knows there are outstanding arrest w arrants or current criminal-19-

activity that may be discovered during the course o f the stop.” Holt , 264 F.3d at 1223. An officer on a routine stop “never knows inadvance which motorists have that option by virtue of possession of a loaded weapon in the car.” Id. Second, we can easily distinguish this case from Ybarra , where the customer only happened to be at the bar when the wa rrant was conducted, because Mr. Allen and Mr. Dennison had a considerably stron ger connection: Officer Contos found both men in Mr. Dennison’s truck in anapartment complex lot at 3:00 a.m., allegedly waiting for a tow truck. “[A] car passenger–unlike the unwitting tavern patron in Ybarra–will often be engaged in a common enterprise with the driver, and have the same interest in conc ealing the fruits or the evidence of their wrongdoing.” Wyoming v. Houghton , 526 U.S. 295, 304-05 (1999). Like the vehicle occupants in Pringle , Mr. Dennison and Mr. Allen were seated in a “relatively small automobile,” 540 U.S. at 373, whe re either individual could access weapons inside the passenger compartment. O fficers therefore could reasonably infer a common purpose or “enterprise” b etween the two men and believe that Mr. Dennison knew of Mr. Allen’s arres t warrants and would want to conceal evidence of any wrongdoing. Importantly, w e also note that Di Re , Ybarra , and Pringle concerned probable cause to arrest another vehicle occupant; here, we need only determine whether officers had reasonable suspicion of Mr. Dennison’s threat to officers to justify a protecti ve sweep.-20-

Third, the detention, arrest, and search occurred l ate at night in a highcrime area, and officers could not clearly tell whe ther Mr. Dennison had weapons in the vehicle within reach. While each factor ind ependently does not establish reasonable suspicion, officers can consider these c haracteristics “among the relevant contextual considerations” in assessing th reats to officer safety. Wardlow , 528 U.S. at 124. In United States v. Shareef , 100 F.3d 1491, 1506 (10th Cir. 1996), officers stopped three vehicles at 3:30 a.m. and reasonably suspected that one occupant was armed and dangerous . This court concluded that officers had a “reasonable belief that the [other v ehicles’ occupants] posed a danger” and found it relevant that (1) the defendan ts were traveling together and (2) “[p]erhaps most important, the police confronte d the defendants in their cars, at night.” Id. Like the officers confronting Mr. Dennison at night, the officers in Shareef “could not tell whether the defendants had weapons on their persons or within reach.” Id. Fourth, we acknowledge that Mr. Dennison was handcu ffed near the back of his truck when Officer Wilson began searching th e truck’s cab, but this court has held that “the fact that the detainee is ‘underthe control’ of officers does not eliminate the risk that he will gain access to a we apon.” United States v. Palmer , 360 F.3d 1243, 1246 (10th Cir. 2004) (citing Long , 463 U.S. at 1051-52). Moreover, though the dazed suspect in Long was alone and in custody of two-21-

armed officers near the rear of his vehicle, the Supreme Court concluded that “a Terry suspect in Long’s position [might] break away from police control and retrieve a weapon from his automobile.” Long , 463 U.S. at 1051. Fifth, Mr. Dennison contends that officer testimonydid not reflect safety concerns during his detention. This court, though, has reasoned that the test of officer safety is objective rather than subjective, and therefore the officer need not personally be in fear. See United States v. Neff , 300 F.3d 1217, 1222 (10th Cir. 2002) (rejecting the defendant’s argument thatno grounds for a Terry frisk existed “because there was no evidence in the recor d that the officers in fact feared for their safety”). Finally, we recently concluded under facts analogou s to Mr. Dennison’s search that officers had reasonable suspicion of po tential danger to justify a detention. In United States v. Maddox , officers were serving an arrest warrant on a narcotics trafficker at a residence in a high-cri me area. 388 F.3d 1356, 1359-60 (10th Cir. 2004). The defendant arrived at the res idence and was detained for thirty minutes in front of the mobile home until of ficers completed the in-house arrest of the trafficker. We upheld the temporary, protective detention of the defendant on officer safety grounds because (1) off icers were assisting in the arrest of a narcotics trafficker inside the residen ce; (2) the officer detaining the defendant outside knew the residence was in a “dang erous location;” (3) it was-22-

getting dark; (4) the officer outside the residence was detaining eight individuals who had driven up to the scene of the arrest; and ( 5) the defendant had mysteriously reached under the seat of his truck as he pulled up into the driveway. Id. at 1366-67. Like Maddox , officers here were assisting in the late-night ar rest of a potentially dangerous suspect in a high-crime area. Though occupants in Mr. Dennison’s truck did not outnumber officers, the sc ene remained dangerous; at 3:00 a.m., officers could not see inside Mr. Dennis on’s truck, and they knew that Mr. Allen had multiple arrest warrants. Because a Long investigation “at close range” requires an officer to make a “quick decisio n as to how to protect himself and others from possible danger,” the Supreme Courtdoes not require “that officers adopt alternate means to ensure their safe ty in order to avoid the intrusion involved in a Terry encounter.” Long , 463 U.S. at 1052 (quoting Terry , 392 U.S. at 24, 28); see also Thornton v. United States , 124 S. Ct. 2127, 2137 (2004) (Scalia, J., concurring) (“When officer safety or i mminent evidence concealment or destruction is at issue, officers should not hav e to make fine judgments in the heat of the moment.”). Viewing evidence in the light most favorable to the district court’s determination, we conclude that officers had a reas onable suspicion that Mr. Dennison was dangerous and able to gain immediate c ontrol of weapons. This-23-

reasonable belief of Mr. Dennison’s threat to offic er safety validated a protective sweep of the truck’s cab. See Long , 463 U.S. at 1049. Officer Wilson testified that he discovered two rifles underneath a blanket in the back seat “within a few seconds” of starting the search of the passenger co mpartment. Rec. vol. II, at 75. He soon came upon additional handguns, rifles, and drug paraphernalia concealed in the cab. Despite the officers’ belief that they were conducting a search incident to Mr. Allen’s arrest, Officer Wilson foun d these items within the parameters of a protective sweep, in “the passengercompartment” of the truck where “a weapon may be placed or hidden.” See Long , 463 U.S. at 1049. These quick discoveries provided probable cause to arrestMr. Dennison on drugs and weapons charges and set in motion the impoundment, inventory search, and inevitable discovery of evidence that Mr. Dennison seeks to suppress.

IV. CONCLUSION We AFFIRM the district court’s denial of Mr. Dennis on’s motion to
suppress.