UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-8274

UNITED STATES of AMERICA,

Appellee-Plaintiff,

VERSUS

JOHNNY CARL MICHELLETTI,

Appellant-Defendant.

Appeal from the United States District Court

For the Western District of Texas

(May 10, 1993)

Before REYNALDO G. GARZA, WILLIAMS and JONES, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Appellant, Johnny Carl Michelletti, appeals the denial of his

motion for suppression of evidence. Michelletti entered into a

plea agreement expressly reserving the right to challenge his

motion's denial. The appellant pled guilty to the unlawful

possession of a firearm by a convicted felon. Upon careful review,

we find that the denial of the motion was proper and we therefore

affirm.

FACTS

On November 17, 1991, El Paso Police Officer George Perry and
2

his partner were on routine motor patrol in a high crime area at

around 2:00 a.m. As they were driving, Perry observed a man

walking in front of Alacran's Bar. When the man saw the patrol

car, he turned and ran behind the bar. The officers decided to

investigate and drove the car around the bar from the other

direction. Officer Perry saw a group of three men standing there,

including the man the police originally spotted and who was now out

of breath. Perry left his car and quickly scanned the subjects'

hands for weapons. At this instant a man pushed open the back exit

door and had an open beer can in his left hand while keeping his

right hand in his pants pocket. The officer testified that this

man, Johnny Carl Michelletti, seemed to have a cocky attitude and

he stared right at the policeman. He then attempted to walk past

the officer. Perry stated that he stopped the subject because he

was violating the law by leaving a bar with alcohol. He was

suspicious that some other criminal activity might be taking place

because the initial subject had run from the police and joined the

group of men at such a late hour in this crime ridden part of town.

The officer was particularly wary of Michelletti, who is six foot

two and weighs 220 pounds and kept his right hand in his pocket

when joining the suspicious trio. The appellant was told to put

the beer on the patrol car and put both his hands on the vehicle.

A quick frisk uncovered a .22 caliber pistol in the right hand

pants pocket that had originally drawn the officer's attention.

The appellant had been convicted of aggravated assault in 1989.

Michelletti pled guilty to the unlawful possession of a firearm by
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a convicted felon in violation of 18 U.S.C. 922(g)(1). He

specifically reserved the right to appeal the denial of his motion

to suppress the evidence of the pistol. He was sentenced to 33

months imprisonment, three years supervised release and a $50

assessment. Michelletti timely appealed.

ANALYSIS

The appellant argues that Officer Perry had no basis to detain

or frisk him and therefore the discovered concealed pistol should

not have been admitted into evidence. We disagree. An officer may

stop and search an individual if he has reasonable suspicion that

criminal activity is afoot and the suspect might be armed. Terry

v. Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

"We are unwilling to tie the hands of police officers operating in

potentially dangerous situations by precluding them from taking

reasonable steps to ensure their safety when they have legitimately

detained an individual." United States v. Rideau, 969 F.2d 1572,

1575 (5th Cir. 1992).

Officer Perry had several reasons to be suspicious of the

appellant. The time was around 2:00 a.m., closing time for bars.

The officers were on routine patrol in a high crime area when they

observed a man turn and run away from them at Alacran's Bar. This

first subject immediately went behind the bar and joined his two

friends presumably to announce the policemen's arrival. Suspicions

were already aroused by this evasive individual joining these other

men when he was obviously apprehensive about the police presence.

When the policeman approached the group, Michelletti suddenly
 

1 § 28.10 provides in relevant part:

 Consumption Restricted to Premises

. . . . 

(b) A mixed beverage permittee may not permit any person to 

 take any alcoholic beverage purchased on the licensed

premises from the premises where sold. . . .

 

2 § 71.01 Authorized Activities.

The holder of a retail dealer's off-premise license

4

pushes open the back door of the bar and approaches. He is holding

an open beer can in his left hand while keeping his right hand in

his front pants' pocket. The appellant weighs 220 pounds and is

six foot, two inches tall. This imposing figure could cause a lot

of harm if he did have a weapon. The officer appreciated the risk

involved if indeed there was some criminal intent on the part of

the four men. The officer also surmised, in the alternative, that

the three men and the police might be in danger if the appellant

had ill intent and was actually armed. The fact that he kept his

right hand in his pocket at all times, given the surrounding

circumstances, was reason enough to suspect Michelletti of possibly

being armed and warranted the pat down frisk for the officers' and,

possibly, the bystanders' safety. The appellant had a bit of a

cocky attitude, stared at the officer and then attempted to walk

past him. Michelletti did not have any intention of setting the

beer down or pouring it out. The officer knew that if the bar had

a mixed beverage permit, as most bars do, that it was a violation

to remove any alcoholic beverage from the premises under the Tex.

Alco. Bev. Code Ann. § 28.10.1 If in the alternative, the

establishment had an off premises license, it would be a violation

under §§ 71.012 or 101.723. The record is silent as to which
may sell beer in lawful containers to consumers, but not

for resale and not to be opened or consumed on or near

the premises where sold.

 

3 § 101.72 states in relevant part:

Consumption of Alcoholic Beverage on Premises Licensed for 

 Off-Premises Consumption 

 (a) A person commits an offense if the person knowingly 

 consumes liquor or beer on the premises of a holder of a

wine and beer retailer's off-premise permit or a retail

dealer's off-premise license.

 

4 § 105.05 states in relevant part:

 Hours of Sale: Beer

 (a) No person may sell, offer for sale, or deliver beer

at any time not permitted by this section.

. . . . .

 (c) In a county having a population of 300,000 or more, 

 according to the last preceding federal census, a holder of 

 a retail dealer's on-premise late hours license may also

sell, offer for sale, and deliver beer between midnight and

2 a.m. on any day.

 

5 § 101.07 Duty of Peace Officers

 All peace officers in the state, including those of 

 cities, counties, and state, shall enforce the provisions of 

 this code and cooperate with and assist the commission in 

 detecting violations and apprehending offenders.

5

license the bar carried. The officer also did not know whether the

beer was illegally sold after 2:00 a.m., in violation of § 105.05.4

The officer had a definite duty to uphold the Code under § 101.07.5

It is clear that the officer had a good faith reason to believe

that a violation had taken place and therefore had the authority to

stop the appellant aside from the suspicions generated by the

surrounding events and Michelletti's concealed hand. 

Given the appellants' attitude, stare and the placement of his

right hand while he cavalierly carried a beer out of a bar in

violation of Texas Law were grounds for suspicion. When you

combine these reasons with the time at night, the high crime area,
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the suspicious actions of the three men, the officer had sufficient

reasonable suspicion that he might be in danger and that

Michelletti was possibly armed. The police did not know if they

were in a situation involving four hostile suspects or only one

possibly armed suspect giving the officer the added responsibility

of protecting the civilians. Michelletti was properly frisked

because he kept his hand where a weapon could and actually was

concealed. The danger these officers were facing is underscored in

the testimony given that a fellow officer and friend was shot to

death in El Paso only two weeks prior. 

We view the evidence with all inferences in favor of the

verdict. United States v. Martinez, 975 F.2d 159, 161 (5th Cir.

1992), cert. denied, (1993). Findings of fact can be challenged

only for clear error. United States v. Richardson, 943 F.2d 547,

549 (5th Cir. 1991). We do not find any reversible error here.

CONCLUSION

We find that Officer Perry had reasonable suspicion to stop

and frisk the appellant. The fruit of that frisk, the concealed

pistol, was therefore properly admitted into evidence. For all the

above reasons, we 

AFFIRM.