* District Judge of the Western District of Louisiana,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2911

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FLOYD COLEMAN,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(August 10, 1992)

Before JONES and WIENER, Circuit Judges, and LITTLE, District

Judge *

PER CURIAM:

In this criminal appeal, Defendant-Appellant Floyd Coleman

argues that his conviction for the federal crime of carrying and

using a firearm during a drug-trafficking crime, in violation of 18

U.S.C. § 924(c), should be reversed and remanded, with instructions

that evidence seized pursuant to the stop and search of his car be

suppressed. Agreeing with the district court's ruling that the

officers directing the stop of Coleman's car had a reasonable

suspicion that its occupants were engaged in illicit activities, we

affirm. Disagreeing with the district court's determination that1 463 U.S. 1032, 1049-50 (1983).

2 the "plain view" doctrine permitted the patrol officer's seizure of

a leather pouch, we nevertheless affirm that court's denial of

Coleman's motion to suppress, finding the seizure proper under the

principles articulated in Michigan v. Long

. 1

I. FACTS AND PROCEEDINGS

A. SEARCH AND SEIZURE

In March of 1990, Speci al Agent Statlander, of the Drug

Enforcement Administration (DEA), received information from

confidential informants that cocaine and crack were being sold from

4107 West Bellfort, Houston, Texas (Bellfort) . The informants

identified Coleman as the "owner and operator" of Bellfort, and

Floyd Edwards as the person who ran operations. Statlander

verified that Coleman leased Bellfort, which was used as a private

after hours c lub with a charter in the name of the "Lodge of the

Benevolent Order of the Bears."

A confidential informant purchased cocaine at Bellfort on

March 4, 1990, as did two und ercover officers, in separate

transactions, on March 7, 1990. On March 8, 1990, Statlander

observed a yellow Oldsmobile, whi ch he later ascertained was

registered to Coleman, parked "outside" Bellfort. That same day,

an undercover officer attempted to purchase two ounces of cocaine

from Edwards. When Edwards was able to provide only one ounce of

cocaine, however, the undercover officer left Bellfort. Police

surveillance, which had been established prior to thi s attempted

purchase, was discontinued. Coleman's car was not at Bellfort at2 The government states that the undercover officer saw "the

appellant" sitting at the bar. There is no evidence, however,

the undercover officer knew that this man was Coleman at that

time.

3 the time of this attempted purchase.

About forty minutes later, surveillance was re-established and

the und ercover officer returned to Bellfort to purchase the

negotiated-for two ounces of cocaine. Coleman's car was once again

sighted near Bellfort. This time, the undercover officer succeeded

in purchasing two ounces of cocaine from Edwards, using $1,700 in

marked bills. During this transaction, the undercover officer

observed a man sitting at the bar watching her. After the purchase

was completed, the undercover officer saw Edwards go to that man

and engage him in a brief conversation. 2 When Edwards returned to

the undercover officer, he gave her instructions on where she could

go to get the cocaine cooked into crack and stated that if she came

back she could meet the "other Floyd." After leaving Bellfort, the

undercover officer radioed the surveillance team and recounted all

that had transpired inside Bellfort. She also told the surveillance team that "there would probably be a couple of people leaving

right behind her and the surveillance team should follow those

individuals."

After the undercover officer departed Bellfort, Statlander

observed two black males leaving, getting into Coleman's car, and

proceeding west on West Bellfort, the direction taken by the

undercover agent. Statlander testified that because of his

surveillance position he was unable to identify these individuals.4

Statlander an d Officer Ollie, of the Houston Police Department

Narcotics Squad, followed Coleman's car for some distance and then

requested a marked unit stop the car to "identify" its occupants.

Officers Pedraza and Smith, in separate patrol cars, responded

to Statlander's request. The officers spotted Coleman's car in the

7800 block of West Bellfort and followed it t o the 8200 block of

West Bellfort, where Smith pulled it over. Coleman immediately got

out and met Smith at the rear of his (Coleman's) car. Observing

"two bulges in Coleman's pockets," Smith frisked Cole man for

weapons, and discovered two bundles of money. (Coleman does not

challenge this frisk.)

The patrol officers and Coleman have quite different versions

of what transpired next. The district court accepted the officers'

version in toto. According to the officers, when asked for

identification, Coleman replied that his driver's license was in

the car. Pedraza inquired as to its precise location; and Coleman

responded that it was inside a "pouch." Apparently intending to

ge t the pouch, Coleman moved toward the car, but was stopped by

Pedraza, who retrieved the pouch himself from underneath the

driver's seat armrest. Pedraza testified that when he picked up

the pouch he could feel a gun in it. Nevertheless, without first

removing the gun, Pedraza handed Coleman the pouch. Coleman

started to un zip the pouch but then gave it back to Pedraza,

telling him there was a gun in it. Pedraza looked in the pouch and

found a loaded handgun and Coleman's driver's license, as anticipated, as well as several beepers, and a telephone book. Coleman5

thereupon was arrested for possession of the gun in violation of

Texas law. Ollie and Statlander, who had by this time been called

to the scene, checked the bundles of money seized from Coleman and

discovered that one bundle contained the $1,700 in marked bills

used by the undercover officer to purchase the two ounces of

cocaine. Ollie advised Coleman of his M iranda rights, and asked

for, and received, Coleman's written consent to search the vehicle.

On the front seat, under the console armrest between the driver and

passenger seats, Ollie found a brown paper bag containing cocaine

and crack.

Coleman, on the other hand, testified that he was carrying his

driver's license and other papers in his sock because his jogging

suit had no pockets. So, when Smith asked for Coleman's driver's

license, he produced it. Pedraza then arrived and asked Thomas

Braxton, the passenger in the car, who owned the pouch that was in

the car. When Coleman responded that it was his, Pedraza "removed

it from the back seat and said there was a pistol in it." At this

point, Coleman was arrested, and the officers searched the entire

car. According to Coleman, Statlander had not arrived on the scene

at the time of the car search. Moreover, Coleman states that Ollie

asked for and received his written consent to search the car only

after it had already been searched.

B. DISTRICT COURT'S RULING

Coleman filed a m otion to suppress the firearm, money, and

cocaine seized from his car, asserting that the stop and3 Coleman pleaded guilty unconditionally to conspiring to

distribute, manufacture, and possess with intent to distribute

cocaine and cocaine base, in violation of 21 U.S.C. § 846; two

counts of possessing with intent to distribute and distribution

of cocaine base, in violation of 21 U.S.C. § 841(a)(1); knowingly

opening and maintaining a place to distribute a controlled

substance, in violation of 21 U.S.C. § 856.

6 warrantless search of his car was unreasonable, and thus violative

of the Fourth Amendment of the United States Constitution. After

a hearing on this motion, the district court ruled that the

temporary detention of Coleman's car was a valid investigatory stop

as the circumstances of the departure of Coleman's car gave rise to

a reasonable suspicion that met the minimal level of justification

necessary for the stop. Neither was a warrant required to seize

the pouch from under the driver's armrest, the distr ict court

ruled, because it was in "plain view." Lastly, the court upheld

the search of the entire car, in which the officers discovered the

brown paper bag containing cocaine and crack, as either a search

incident to a valid arrest or pursuant to Coleman's voluntary and

knowing consent.

Coleman pleaded guilty to multiple narcotics trafficking

charges, 3 and entered a conditional guilty plea to using and

carrying a firearm during a drug-related offense, in violation of

18 U.S.C. § 924(c). Before this court, Coleman challenges only his

conviction on the firearms count.

II. ANALYSIS

A. STANDARD OF REVIEW

While this court reviews questions of law d e novo , "[i]n4 U.S. v. Muniz-Melchor , 894 F.2d 1430, 1433-34 (5th Cir.

1990), quoting U.S. v. Maldonado , 735 F.2d 809, 814 (5th Cir.

1984).

5 Terry v. Ohio , 392 U.S. 1, 21-22 (1968).

6 Id . at 19-20.

7 U.S. v. Shaw , 701 F.2d 367, 377 n. 4 (5th Cir. 1983)

(internal quotations omitted), citing U.S. v. Cimino , 631 F.2d

57, 59 (5th Cir. 1980), and U.S. v. Kreimes , 649 F.2d 1185, 1189

(5th Cir. 1981).

7 reviewing a trial court's ruling on a motion to suppress based on

live testimony at a suppression hearing, the trial court's purely

factual findings must be ac cepted unless clearly erroneous, or

influenced by an incorrect view of the law, and the evidence must

be viewed [in the light] most favorable to the party prevailing

below." 4

B. STOP OF COLEMAN'S CAR

Absent probable cause, a vehicle and its occupants

nevertheless may be briefly detained for investigation based on the

lesser standard of reasonable suspicion of criminal activities. 5

Under Terry v. Ohio , a seizure and search is deemed reasonable if

it "was justified at its incepti on," and "reasonably related in

scope to the circumstances which justified the interference in the

first place ." 6 "[R]easonable suspicion is to be determined by

considering the totality of the circumstances, includ ing the

collective knowledge of a ll officers in assessing the facts." 7

Issues concerning the legality of a search of a car, which takes

place after an investigatory stop, are separate from whether the8 U.S. v. Basey , 816 F.2d 980, 988 (5th Cir. 1987).

8 stop itself was legal. 8

Colem a n offers two somewhat inconsistent reasons why the

officers did not have a reasonable suspicion that he was involved

in drug activities, and thus no legitimate reason to stop his car.

Coleman first argues that there was no legitimate investigatory

reason to "identify" the car's occupants because Statlander had

seen him previously and therefore knew what he looked like, had

checked the car's registration and knew it belonged to Coleman, and

had already targeted him for investigatio n. Thus, Coleman

contends, Statlander and Ollie already knew he was in the car when

they directed that it be stopped by the marked units for the

ostensible purposes of identifying its occupants. Alternatively,

Coleman maintains that the officers' collective knowledge would not

justify the stop because "[a] drug transaction occurred in a club

between Floyd Edwards and an undercover officer, and he was neither

involved in the transaction nor identified as being present."

The government responds that at the time Statlander and Ollie

requested the yellow Oldsmobile be stopped they had much more than

an "inchoate and unparticularized suspicion or hunch" that Coleman

a nd the yellow Oldsmobile were involved in drug activit ies.

Specifically, when Statlander requested that a marked unit stop the

car he knew that Bellfor t was leased by Coleman; Bellfort was a

distribution spot for cocaine; confidential informants had said

that Coleman was involved; Coleman's car was parked in front of

Bellfort; the re-appearance of Coleman's car at Bellfort on the9 See, e.g.

, U.S. v. Cortez , 449 U.S. 411, 417-18 (1981).

10 407 U.S. 143, 146 (1972).

9 afternoon of March 8, 1990, corresponded with the appearance of the

hitherto unavailable two ounces of cocaine; the undercover officer

told Statlander immediately after the sale of cocaine about the man

at the bar and Edward's statement about meeting the "other Floyd";

the undercover officer stated that there would be a couple people

following her out of the club and that they should be followed; and

two black males left the club about that time and drove off in

Coleman's car. The government notes, moreover, that Statlander

testified that he could not identify the two individuals who got

into Coleman's car because of his surveillance position.

We agree with the government's contentio n that Statlander's

request that the marked units stop Coleman's car was based on

reasonable suspicion that the car's occupants were involved in

illicit activities

. The government's explanation for the T erry

stop makes consummate sense, i.e, that the officers directing the

stop had a relevant investigatory reason to identify the

individuals who had just been associated with the sale of cocaine.

Al though we acknowledge Coleman's point that a stop pursuant to

Terry requires that the officers have a particularized suspicion of

wrongdoing, 9 Terry does not require that the officers already know

the identity of the individual prior to the stop. Indeed, in A dams

v. Williams

, 10 the Supreme Court expressly stated that "[a] brief

stop of a suspicious individual, in order to determine his identity

. . . may be [] reasonable in light of the facts known to the11 See, e.g

., Basey , 816 F.2d at 989 ( Terry rationale does

not justify stopping every vehicle for several miles after

discovery of crime).

12 Cf. U.S. v. Buchannon , 878 F.2d 1065, 1067 (8th Cir. 1989)

(police justified in stopping cars departing in caravan from

suspected drug house).

10 officer at the time." We also believe it inappropriate to

characterize so narrowly the patrol officers' investigatory purpose

as mere "identification" without also considering why

identification was desired. Clearly, this stop was no random

detention , "fishing expedition," 1 1 or detention based on nothing

more than, say, the driver's race or the car's proximity to

Bellfort. 12

C. SEIZURE OF POUCH

Coleman next argues that even if the stop of his car was valid

under Terry

, Pedraza's seizure of the pouch from the car's front

seat was unlawful. Coleman contends that the district court erred

in crediting Pedraza's testimony --that Pedraza handed the pouch

that he knew contained the gun over to Coleman to see what his

reaction woul d be--because that version of events is "beyond

belief." And if his license was not in the car, as the patrol

officers contend, but in his sock, Coleman continues, the officers

would not have found the gun in the pouch, would not have arrested

him for possessing the gun, and therefore could not have searched

the car pursuant to that arrest.

The government responds that Coleman's contention ignor es a

substantia l portion of Pedraza's testimony: Coleman was in a

"triangle" position between Smith and Pedraza, so there was no way13 U.S. v. Logan , 949 F.2d 1370, 1377 (5th Cir. 1991).

11 Col eman could get the gun out of the pouch in time to do either

officer any harm; and Pedraza knew that Coleman knew that Pedraza

had discovered a gun inside the pouch. Therefore, although

Pedraza's approach might seem unreasonably dangerous to those

uninitiated with police tactics and proce dures, any danger was

mitigated by Pedr aza's knowledge and position. The government

insists, moreover, that "[a]s a patr ol officer with seven years

experience, Officer Pedraza must be trusted to know what he can and

cannot do safely."

As noted earlier, a trial court's factual findings on a motion

to suppress must be sustained unless shown to be clearly

erroneous. 13 Here, the district court observed the witnesses,

weighed conflicting testimony, and made a determination that the

patrol officers' version of events was the more credible one. We

are not prepared to say in this case that the dis trict court's

credibility determina tions and its ensuing factual findings were

clearly erroneous, and we therefore reject Coleman's assertion of

error.

Coleman's more substantial argument is that the district court

erred in upholding the seizure of the pouch under the "plain view"

doctrine. Despite the district court's ruling, the government

wisely characterizes the issue not as a straight plain view seizure

but as a Terry frisk of the car for weapons, during which Pedraza

discovered the gun in the pouch pursuant to "plain feel." We find,

for the reasons that follow, that while Pedraza's seizure of the14 110 S.Ct. 2301 (1990).

15 Id at 2307.

16 Id

.

17 See Coolidge v. New Hampshire , 403 U.S. 443, 468 (1971)

(cars' probative value remained uncertain until after interiors

were swept and examined microscopically). Compare, e.g

., U.S. v.

Webb , 950 F.2d 226, 229 (5th Cir. 1991), reh. denied 1992 U.S.

App. LEXIS 2090 (1992), and cert denied 119 L.Ed.2d 236 (1992).

(weapons in car in plain view), with Arizona v. Hicks , 480 U.S.

321 (1987) (not apparent that expensive stereo components were

contraband).

18 463 U.S. 1032, 1049-50 (1983).

12 pouch from Coleman's car cannot be sustained under the plain view

doctrine, it was valid as a Terry frisk of the car for objects that

might contain weapons.

As recently summarized by the Supreme Court in H orton v.

California

, 14 a plain view seizure requires that (1) the p olice's

initial intrusion be supported by a warrant or recognized exception

to the warrant requirement, 15 and (2) the incriminating character

of the object seized be immedia tely apparent. 1 6 In this case,

however , the second element is not satisfied because Coleman's

leather pouch was not evidence of crime, contraband, or otherwise

inherently incriminating. 17 Therefore, even had Pedraza seen the

pouch prior to entering the car, its seizure would be invalid.

The government's second argument in suppo r t of Pedraza's

seizure of Coleman's pouch is that it was j ustified in order to

ensure that the pouch contained no weapon

. In Michigan v. Long

, 18

the principles articu lated in T erry were applied to automobiles.

Under Long

, " [t]he search of the passenger compartment of an19 Maryland v. Buie , 494 U.S. 325, 332 (1990) (citations and

internal quotations omitted); see also U.S. v. Maestas , 941 F.2d

273, 276 (5th Cir. 1991), cert denied, 116 L.Ed.2d 809 (1992).

20 Weapons and violence are frequently associated with drug

transactions, of course. U.S. v. Wiener , 534 F.2d 15, 18 (2d

Cir. 1976) ("[T]o 'substantial dealers in narcotics,' firearms

are as much 'tools of the trade' as are most commonly recognized

articles of narcotics paraphernalia.").

13 automobile, limited to those areas in which a weapon may be placed

or hidden, is permissible if the police officer possesses a

r easonable belief based on specific and articulable facts which,

tak en together with the rationale inferences from those facts,

reasonably warrant the of ficer in believing that the suspect is

dangerous and the suspect may gain immediate control of the

weapon." 19

The gove rnment contends, and we agree, that given the

circumstances of this case it was reasonable for the patrol

officers to be concerned for their safety. The district court's

factual findings reveal that the patrol officers knew that the stop

was requested by narcot ics officers; indeed, Pedraza knew

specifically that the stop was part of an ongoing narcotics

investigation or surveillance. 20 Statlander and Ollie clearly had

reason to believe that the occupants were involved in narcotics

trafficking. When the vehicle was stopped, Coleman did not stay in

his car, but exited quickly, meeting Smith at the back of his

(Coleman's) car. According to the patrol officers, Coleman

appeared nervous when he was interviewed by Smith. The pat-down

search of Coleman revealed two b undles of money, thus further

associating Coleman with known drug dealing activities at Bellfort.21 See, e.g.

, U.S. v. Williams , 822 F.2d 1174 (D.C. Cir 1987)

(touch of brown paper bag revealed drugs); U.S. v. Wilkerson , 598

F.2d 621, 625-26 (D.C. Cir. 1978) (pat-down of jacket revealing

gun); U.S. v. Portillo , 633 F.2d 1313 (9th Cir. 1980) (contact

with paper bag revealed gun).

22 See, e.g

., U.S. v. Walker , 576 F.2d 253, 255 (9th Cir.

1978) (upholding Terry search of large purse).

23 See New York v. Belton , 453 U.S. 454 (1981). Because we

find that the second search of Coleman's that unearthed the drugs

was valid as a search incident to arrest, we need not, and

therefore do not, consider the voluntariness of Coleman's consent

14 Hence, the patrol officers had reason to believe that Coleman could

be armed and dangerous. So when Coleman stated that his license

was in a pouch inside his car and started to retrieve it, Pedraza

was justified in retrieving the pouch himself to ensure that it did

not contain a weapon.

Having acquired possession of Coleman's pouch through a

recognized exception to the warrant requirement--a Terry / Long

search of the car for weapons and places that could contain

weapons--Pedraza's discovery of the weapon was justified as "plain

feel." To determine whether objects in a car contain weapons, the

officer conducting the frisk is authorized to touch objects, 2 1 or

even to open those objects. 22 As such, it was perfectly reasonable

for Pedraza to pick up the pouch re f erred to by Coleman to

determine if it contained a weapon in addition to Coleman's

license.

Coleman was arrested for the crime of carrying a handgun in

violation of Texas law. Thus, the officers' second search of

Coleman's entire car, in which cocaine and crack were discovered,

was valid as a search incident to arrest. 23to search

.

15

For th e foregoing reasons, therefore, the judgment of the

district court is

AFFIRMED.