* Senior Circuit Judge Jerre S. Williams, who wrote a dissent to the

panel opinion in this case, died before opinions were circulated in this case. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 92-8274

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY CARL MICHELLETTI,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________ January 25, 1994

Before POLITZ, Chief Judge, REYNALDO G. GARZA, KING, GARWOOD,

JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE,

EMILIO M. GARZA, and DeMOSS, Circuit Judges. *

EDITH H. JONES, Circuit Judge:

The court has decided again to turn its attention en banc

to the extent of a police officer's authority to co nduct a T erry

frisk for officer and public safety. In United States v. Rideau

,

969 F.2d 1572 (5th Cir. 1992) ( e n banc ), we held that an of ficer

did not violate the Fourth Amendment when he "reached out and

touched the pants pocke t" of "a person he suspected was

intoxicated, standing in the road, at night, in a high crime area."

Id

. at 1573. Here, we hold that the Fourth Amendment is not2

violated when an officer lightly frisked the pants pocket in which

the appellant held his right hand as he barged out the back door of

a bar, beer in the left hand, at closing time, and walked toward

the policeman and a group of individuals he was about to question.

Our decision rests squarely upon the reasonable ness of the

officer's decision as gauged in Terry v. Ohio , 392 U.S. 1, 30, 88

S. Ct. 1868, 1884-85 (1968):

We merely hold today that where a police

officer observes unusual conduct which leads

him reasona bly to conclude in light of his

experience that criminal activity may be afoot

and that the persons with who m he is dealing

may be armed and presently dangerous, where in

the course of investigating this behavior he

identifies himself as a policeman and makes

reasonable inquiries, and where nothing in the

initial stages of the encounter serves to

d i spel his reasonable fear for his own or

others' safety, he is entitled for the

protection of himself and others in the area

to conduct a carefully limited search o f the

o uter clothing of such persons in an attempt

to discover weapons which might be used to

assault him.

BACKGROUND

In the early morning hours of November 17, 1991, El Paso

police officers George Perry and Saul Medrano were on routine motor

patrol in a high crime area. Just after 2:00 a.m., Officer Perry

observed a man walking in front of Alacran's Lounge who, when he

saw the patrol car, turned and ran behind the bar. The officers

decided to investigate. As their car drove up behind the bar,

Officer Perry saw three men standing under a spotlight, one of whom

was the man he had originally observed.1 The dis sent suggests that we have mischaracterized the record in

asserting that Michelletti walked toward Officer Perry and the other suspects.

Officer Perry testifie d Michelletti "tried to walk on by." Appellant's brief

says, Michelletti "began to walk past [Perry]." It is a fair inference that

Michelletti had to approach Perry in order to walk right on by.

3 While stepping out of the car, Perry immediately scanned

the subjects' hands for weapons and saw none. Suddenly, another

man noisily pushed open the rear exit door from the bar and began

to approach Perry and the suspects, 1 holding an open beer can in

his left hand while keepi ng his right hand in his pants pocket.

This was Johnny Carl Michelletti. Perry testified:

I noticed two things in particular that caught

my attention. First of all, being left-handed

mysel f, I noticed that he had his right hand

in his front pocket. To me most people are

right-handed and that seems strange because in

h is left hand he had a beer and he was drinking the beer as he was leaving the

establishment.

Later, Perry continued:

And his whole attitude, although he was calm,

he seemed a little bi t almost cocky. But he

looked at me, we made eye contact, but then he

looked away and acted as though I was not

the re and tried to walk on by. And that

caught my attention as well.

To Officer Perry, the placement of Michelletti's hands and his

demeanor were highly significant. Further, the door that

Michelletti ope ned stood less than ten yards away from Perry,

within easy range for an attack. Michelletti was over six feet

tall and weig hed 220 pounds. In Perry's experience, there is a

greater pr obability that violence will erupt outside a bar at

closing time.4 Officer Perry told Michelletti he was going to frisk him

for weapons, and he had Michelletti place the beer and his hands on

the patrol car while Perry checked Michelletti's pockets. A quick

frisk uncovered a .22 caliber pistol in the right hand pants pocket

where Michelletti's hand had been hidden only seconds earlier.

Michelletti pled guilty to the unlawful possession of a

firearm by a conv icted felon. 18 U.S.C. § 922(g)(1) (1988). He

had previo usly been convicted of aggravated assault of a police

officer in 1989. Michelletti reserved the right to appeal the

denial of his motion to suppress evidence of the pistol. He was

sentenced to 33 months imprisonment, three years supervised release

and a $50 assessment. This appeal followed.

DISCUSSION

The pertinent law, which originates in T erry v. Ohio

,

supra

, is undisputed. Police officers may briefly detain

individuals on the street, even though there is no probable cause

to arrest them, if they have a reasonable suspicion that criminal

activity is afoot. The Fourth Amendment requires only some minimum

level of objective justification for the officers' actions -- but

more than a hunch

-- measured in light of the totality of the

circumstances. S ee

, e.g.

, United States v. Sokolow

, 490 U.S. 1, 7,

109 S. Ct. 1581, 1585 (1989); United States v . Sanders , 994 F.2d

200, 203 (5th Cir. 1993); United States v. Rideau , 969 F.2d 1572,

1574 (5th Cir. 1992) ( en banc ). Reasonable suspicion must be

supported by particular and articulable facts, which, taken

together with rational inferences from those facts, reasonably2 Terry cites FBI statistics to show that in 1966, 57 law enforcement

officers were killed in the line of duty, bringing the total to 335 for the

seven-year period beginning with 1960. Also, in 1966, there were 23,851 assaults

on policemen, 9,113 of which caused injuries. Terry , 392 U.S. at 23, n.21, 88

S. Ct. at 1881, n. 21.

5 warrant an intrusion. S ee United States v. Galberth

, 846 F.2d 983,

989 (5th Cir.), cert. denied

, 488 U.S. 865 (1988) (citing Terry

,

392 U.S. at 19, 88 S. Ct. at 1878-79).

Equally important for Fourth Amendment purposes, "the

policeman making a reasonable investigato ry stop should not be

denied the opportunity to protect himself from attack by a hostile

suspect." A dams v. Williams , 407 U.S. 143, 147, 92 S. Ct. 1921,

1923 (1972). T erry acknowledged the legitimacy of a policeman's

interest in "taking steps to assure himself that a person with whom

he is dealing is not armed" and dangerous, and it emphasized this

concern by citing the increasing number of murders and assaults

being perpetrated on law enforcement officers. T erry

, 392 U.S. at

23, n.21, 88 S. Ct. at 1881, n.21. 2 T erry concludes its balancing

of the suspect's liberty interest and the public safety interest by

countenancing "a narrowly drawn authority to perm it a reasonable

search for weapons for the protection of the police officer, where

he has reason to believe that he is dealing with an armed and

dangerous individual.

. . ." I d

. at 24, 88 S. Ct. at 1881. An

officer need not be certain that an individual is armed; the issue

is whether a reasonably prudent man could believe, based on

"specific and articulable facts," that his safety or that of others

is in danger. I d

. at 27, 88 S. Ct. at 1883. In assessing6

reasonableness, "due weight" must be given to the facts and

inferences viewed "in light of [the officer's] experience." Id

.

This court reviews the reasonableness of an investigatory

stop and frisk de novo as a conclusion of law

. See United States

v. Basey

, 816 F.2d 980, 988 (5th Cir. 1987). However, the

appellate court must review the evidence in the light most

favorable to the government as the prevailing party. S ee United

States v. Simmons , 918 F.2d 476, 479 (5th Cir. 1990). Also, this

court "should uphold the district court's ruling to d eny the

suppression motion 'if there is any reasonable view of the evidence

to support it.'" U nited States v. Register

, 931 F.2d 308, 312 (5th

Cir. 1991) (quoting United States v. Montos

, 421 F.2d 215, 219 n.1

(5th Cir.), cert. denied , 397 U.S. 1022, 90 S. Ct. 1262 (1970)).

There should be no question that the police officer

articulated a reasonable basis to investigate the group of patrons

standing outside the rear of Alacran's Lounge. This issue was not

really disputed in the district court. The man who had just turned

and run evasively at the mere sight of a patrol car had joined two

others. The police could not know what these actions might mean,

but they were entitled to find out. Instantaneously upon their

arrival, Michelletti noisily emerged from the bar, beer in hand,

and approached the entire group.

Two aspects of Michelletti's behavior led Officer Perry

to investigate him while Medrano dealt with the other men. First,

Officer Perry believed he should investigate Michelletti for3 The Texas Court of Appeals, reviewing Michelletti's conviction for

parole violation, did not question Officer Medrano's testimony that Michelletti

was in violation of the Texas Alcoholic Beverage Code, although it appears this

was a civil rather than criminal violation. M ichelletti v. State of Texas

, Case

No. 08-92-0075-CR, Eighth Court of Appeals, El Paso, Texas (unpublished). The

state court did, however, refuse to affirm Michelletti's conviction because it

did not believe the police officers articulated sufficient facts to justify the

Terry frisk. We do not have the testimony adduced in state court and cannot say

how that record differs from the one before us.

4 § 101.07. Duty of Peace Officers

All peace officers in the sta te, 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 § 101.72. Consumption of Alcoholic Beverage on Premises Licensed

for Off-Premises Consumption

(a) A person co mmits 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.

6 No violation actually occurs until after 2:15 a.m.

7 possible alcoholic beverage offenses 3 arising under regulations of

the Texas Alcoholic Beverage Commission. Tex. Alco. Bev. Code

§ 101.07 (West 1978). 4 Officer Perry considered it a violation for

Michelletti to be drinking a beer as he was leaving the bar. See

id

. § 101.72(a) (West 1993). 5 He knew that a bar patron violates

the law by consuming liquor served after lawful closing hours. S ee

id

. § 105.06 (West 1978). 6 Other TABC violations might also have

come into play, even though the state regulatory scheme generally

governs the purveyors of alcoholic beverages rather t han the

buyers. S ee, e.g.

, id

. at § 28.10(b) (West 1978) (prohibitin g a

mixed beverage permittee from allowing a patron to take a beverage

off the premises); § 32.15 (West 1993) (barring the removal of

alcoholic beverages from the premises of a private club); § 71.037 Even Judge Williams, dissenting from the panel opinion, conceded that

Officer Perry may have possessed a good faith, though Jud ge Williams believed

inaccurate, belief that Michelletti had violated TABC regulations, and a "brief

stop of Michelletti could therefore be justified. . . ." U nited States v.

Michelletti , 991 F.2d 183, 187 (5th Cir. 1993) (Williams, J., dissenting).

8 (forbidding an off-premise licensee from selling beer to be opened

or consumed on or near the premises); § 105.05(c) (West 1978)

( prohibiting an on-premise purveyor from selling beer after 2:00

a.m.). 7 Ramon Valles, a friend of Michelletti and manager of

Alacran's Lounge, testified as a witness for the defense:

A. Nobody can walk with beers outside, we

cannot sell beer [after 2:00 a.m.]. What

else would you like to know on this?

Q. He couldn't, if he had bought a beer in

there --

A. He couldn't walk with it outside, no.

Q. He could not enter?

A. No sir.

Valles went on to say that the lounge could be fined or could lose

its license for such violations, but this does not detract from his

understanding that Michelletti could not violate TABC regulations.

Second, Perry's suspicions were aroused not only by the

open container of alcohol, but by Michelletti's purposeful strides

toward the group that Perry had just encountered behind the lounge.

On this basis alone, Perry's suspicion was no less reasonable than

tha t which the Supreme Court approved in T erry

. In T erry

, the

police officer had observed two men simply walking back and forth

in front of a store in broad daylight for ten or twenty minutes.

Although the men had actually turned and walked away from the store9

when the officer detained them, the Supreme Court approved the

detention and frisk, relying heavily on the police officer's

seasoned judgment of what the occasion demanded. Terry , 392 U.S.

at 22-23, 88 S. Ct. at 1880-81.

Applying the Terry standard to Officer Perry, an

experienced patrolman, one must conclude that the possibility that

alcoholic and deliberate approach, in the context of the suspicious

circumstances under which the police encountered the group behind

Alacran's Lounge, constituted a reasonable basi s to investigate

Michelletti further.

The next question is whether Officer Perry's decision to

frisk Michelletti by placing him against the patrol car with his

han ds resting on it was justified by specific and articulable

facts. We conclude, as we did in R ideau

, that "[a] reasonably

prudent man in [Officer Perry's] situation could have believed that

his safety and that of [others] was in danger." Rideau , 969 F.2d

at 1574. Michelletti, a large and imposing man, was heading

straight toward him with a "c ocky," perhaps defiant attitude and

his right hand concealed precisely where a weapon could be located.

Tha t Officer Perry took special note of the location of

Michellett i's right hand is a fact whose importance cannot be

overstated. The policeman had scanned a ll of the subjects', hands

as he alighted from his car when it pulled up behind Alacran's

Lounge. As a left-hander himself, Officer Perry said, he is

accustomed to notice how most people, i.e., right-handers, place

their dominant hands. It is also significant that Michelletti had10

a beer in one hand and the other hand in his pocket when he opened

the door; in that situation, the hand would ordinarily come out of

the pocket. That it did not was suspicious. Officer Perry's

suspicion was arou s ed reasonably by the potentially dangerous

location of Michelletti's right hand.

At the suppression hearing, Officer Perry testified,

under clever cross-examination, that, before the patdown, he had no

specific reason to believe Michelletti was armed. This statement

somewhat detracts from our position but does not prove that Officer

Perry had no reason to be concerned about Michelletti. In United

States v. Tharpe

, 536 F.2d 1098 (5th Cir. 1976), ( e n banc ), we

upheld a patdown even though "the officer

. . . did not explicitly

testif y that he feared he was in danger because Tharpe might be

armed" ( id . at 1099), and observed:

"If the officer had an objective factual basis

for then thinking there was a real risk to his

own safety, his later verbalization of his

thoughts or feelings can hardly be dispositive

of the on-the-scene reasonableness of

conducting a protective search for weapons.

. . .

His subjective feelings may have been

equivocally expressed, but his te stimony

clearly shows that he f elt a risk of danger,

and had a subjective awareness of facts

justifying such an apprehension." I d

. at

1100.

We rely on such facts here, as did the district court.

Other circumstances surrounding the encounter signaled a

need for caution. First, it was closing time at a bar, a late hour

when the presumably well-lubricated habitués would begin head ing11

for home

-- o r for trouble. The officers were well aware of a

higher likelihood of angry confrontations at closing time. Second,

the officers did not know whether they were confronting one

suspect, two suspects, or all four of the men outside the bar as

suspects in criminal activity. The size of the group added to the

calculation of danger for the police and for any of the group's

innocent members. Thus, even if the likelihood of Michelletti's

being armed was somewhat less tangible, the amount of damage he

could i nflict if armed was much larger gauged by the number of

onlookers. Third, the police could not dispel the possibility that

Michelletti himself was either inebriated or less in control of his

faculties because he had been drinking so late at night.

Given both a reasonable basis to perceive that illegal

activity might be underway, and that there was a possibility of

danger as he conducted an investigation, Officer Perry faced only

one more decision: the extent to which he would physically intrude

o n Michelletti. He did not pull his gun. He did not handcuff

Michelletti. He did not perform a full body frisk. He merely

asked Michellet ti to place his hands on the patrol car, and he

scanned Michelletti's pants pockets l ightly, a move that quickly

revealed the pistol. Michelletti was not subjected to a

"shakedown." R ideau

, 969 F.2d at 1576. Instead, the physical

intrusion was similar to that in Rideau :

Reaching out to touch Rideau's pocket was a

limited and tailored response to Ellison's

fears for his safety, and served to validate

his concerns. Its very spontaneity equally

validates the objective reasonableness of the

practical balance of safety and liberty. This12 was not the intrusive exploration of a

detainee's body that the Court envisioned in

Terry . (footnote omitted).

Id . at 1575.

In a case with striking parallels to this one, a panel of

this court recently appro ved a particularly intrusive detention

under Terry

. U ni ted States v. Sanders , 994 F.2d 200 (5th Cir.

1993). Defendant Sanders had been identified by a convenience

store owner as carrying a gun while he was in the store. See id

.

at 201. Whether the store owner had actually seen the weapon or

merely suspected its presence is not clear. The officer on mid-day

patrol responded to a radio dispatch describing this event and

arrived in front of the store, tentatively identifying Sanders from

his clothing as he stood among a group of people outside the store.

See id

. at 202. The policeman noted that Sanders' jacket could

conceal a firearm, and the brown bag Sanders carried could suggest

the presence of an alcoholic beverage or another weapon. See id

.

at 207. Sanders turned and started to walk away as the squad car

approached. Such an action, the opinion states, "can be used by a

criminal to prepare for violent confrontation.

. . ." I d

. The

officer was also conscious of the safety of other people standing

nearby, including children. See id

.

Sanders ' description of the considerations that faced the

police officer there apply readily to this case:

When Officer Hambrick arrived on the scene at

Cruz's Grocery, he had only a matter of

seconds to assess the situation, formulate a

plan of action, and imp lement it. In so

doing, he had to balance several competing

priorities: to investigate the alleged crime13 and make any appropriate arrests; to prevent

the commission of any additional crime; not to

infringe on the right s of [the defendant] or

any other persons who might be affected by the

officer's actions or inactions; to ensure the

safety of others of the general population

present or nearby; and to go home in one piece

at the end of his shift.

Id

.

The panel concluded in Sanders th at it was not

unreasonable for Officer Hambrick immediately to draw his gun upon

confronting Sanders, and, when Sanders ignored his command to lie

down, to have him handcuffed before searching for weapons. Indeed,

Sanders impressively amasses an array of caselaw permitting police

officers to take stern and swift measures when necessary to

"discover the true facts and neutralize the threat of h arm if it

materialized." Terry v. Ohio , 392 U.S. at 30, 88 S. Ct. at 1884.

Sanders also points out:

The fact that the protection of the public

might, in the abstract, have been accomplished

by "less intrusive" means does not, by itself

render the search unreasonable. The question

is not simply whether some other alternative

was available, but whether the police acted

unreasonably in failing to recognize it or pursue it.

Sanders

, 994 F.2d at 204, (quoting United States v. Sharpe

, 470

U.S. 675, 687, 105 S. Ct. 1568, 1576 (1985) (internal quotations

and citations omitted)).

Each case involving the r easonableness of a T erry stop

and frisk turns on its own facts. But it would be a bold factfinder indeed who could review the facts ava ilable to Officer

Hambrick in Sanders and the facts confronting Officer Perry in8 Our opinion rests not on these facts alone, but on the totality of

the circumstances that confronted the policeman and influenced his judgment.

9 See Rideau , 969 F.2d at 1575.

14 Michelletti and conclude that Hambrick's weapon-drawn stop-andhandcuff actions were objectively reasonable while Perry's patdown

was not. A similar comparison between this case and R ideau not

only presents no reason to differentiate the reasonableness of the

police officers' actions in the two cases, but emphasizes Officer

Perry's even greater obligation to defuse the risk to the physical

safety of the e n tire group of men while he and his partner

investigated. As the Supreme Court put it:

We cannot say his decision at that point to

seize [the defendant] and pat his clothing for

weapons was the product of a vola tile or

inv entive imagination, or was undertaken

s imply 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, 88 S. Ct. at 1883.

Officer Perry expressed concern that he was patrolling a

high cr ime area of town and that a friend and fellow officer had

bee n mortally shot only two weeks earlier. 8 H is concern was

neither irrational nor irrelevant. The location in which

suspicious behavior occurs, like the time of day, is among the

facts that generate reasonable inferences as to the necessary

police response to the behavior. 9 A policeman's reaction to his or

her geographic location is just as natural as the fact that we all

secure our houses at night or check the locks on the car when1 0 According to the FBI, in 1989-90, an average of 153 law enforcement

officers were k i lled annually in the line of duty; over 203,000 were wounded;

over 586,000 were assaulted. W ashington Adds Monument Honoring Officers Who

Died , N.Y. Times, Oct. 20, 1991; 151 Law Enforcement Officers Killed in 1989

, PR Newswire, Dec. 29, 1989, available in LEXIS, Nexis Library. Compare n.1,

supra

.

15 traversing certain parts of town. Further, Officer Perry's concern

for his safety, dramatized by the recent loss of his friend, is

h ardly groundless in this day and age. The number of police

officers killed annually in the line of duty has tripled since

Terry was decided; the numbers of those assaulted and wounded have

risen by a factor of twenty. 10 Surely the constitutional legitimacy

of a brief patdown such as occurred here may and should reflect the

horrendous ly more violent society in which we live, twenty-five

years after Terry

.

The conclusion of Rideau , paraphrased, applies fully to

this case:

We do not depart from the rule that

police officers must have specific and

articulable facts indicating that their safety

is in danger to justify a patdown. Nor do we

assert that a lawful detention is a license to

frisk. We simply look to the reality that the

s etting in which the police officer acts may

reasonably and significantly affect his

decisional calculus. A reasonably prudent man

in Officer [Perry's] position could believe

that he was in danger as [Michelletti

approached him, his partner, and the three

other men]. The minimally intrusive action

that he took to ensure his safety and that of

[others] was not a violation of

[Michelletti's] constitutional rights. The

Fourth Amendment does not require police to

allow a suspect to draw first.

Rideau , 969 F.2d at 1576.

AFFIRMED

.HAROLD R. DeMOSS, Circuit Judge, specially concurring:

I concur in the result reached by the majority opinion. This

is a close case involving conflict between two very real and

legitimate interests: (1) the interest of the citizen to be free

from unreasonable searches and seizures, and (2) the interests of

the police of ficer to be secure in his personal safety and to

prevent harm to others. When those two interests come into

conflict at 2 a.m. outside of a bar, I think common sense and

prudence say that we give preference to the safety interest of the

police officer. At that hour of the night, the overwhelming

majority of law-abiding citizens are at home in bed. Michelletti

was obviously not at home in bed, and the events of this encounter

showed he w as not law-abiding, for he was carrying a pistol in

violation of the laws of the State of Texas. The dissent contends

that Officer Perry had no reasonable ground to believe that

Michelletti had a gun in his pocket, and that we therefore cannot

let the fact that Michelletti was not a law-abiding citizen color

our determination. But when Michelletti unexpectedly appeared on

the scene, Officer Perry had only a matter of seconds to assess the

significance of that turn of events, and I believe what struck

Officer Perry as most significant was the fact that Michelletti had

his right hand in his pocket. I doubt seriously that Officer Perry

gave any consideration during those few seconds of time to the

intricacies of the Texas Alcoholi c Beverage Code, nor did he

remember the death of a fellow officer in the line of duty. To

that extent, some of the language in the majority opinion strikeswjl:\opin\92-8274.spe

hrd 17 me simply as ex post facto rationalization. But with the intuition

born of experience, Officer P erry sensed danger, and the actions

which Officer Perry took then were those most reasona ble and

appropriate to "neutralize the threat of physical harm" to himself,

his fellow officer and the other individuals who were the subjects

of their original investigation. Just as in baseball, we give a

tie to the runner, and in football, we give a simultaneous catch to

the receiver, I think in this case the close call goes in favor of

the reasonableness of Officer Perry's actions.

JERRY E. SMITH, Circuit Judge, with whom POLITZ, Chief Judge, KING, DUHÉ and WIENER, Circuit Judges, join dissenting:

Concluding that the majority has strayed from the dictates of

the Supreme Court and from the recent pronouncements of this court

sitting en banc, I respectfully dissent. The majority, although

purporting to rely upon Terry v. Ohio

, 392 U.S. 1 (1968), fails to

mention, much less to apply, the central requirement of that case:

that the Constitution requires "individualized suspicion" and

authorizes only "a limited patdown for weapons where a reasonably

prudent officer would be warranted in the belie f, based on

`specific and articulable facts,'

. . . and not on a mere `inchoate

and unparticularized suspicion or "hunch,"'

. . . `that he is

dealing with an armed and dangerous individual .'

. . . ." M aryland

v. Buie

, 494 U.S. 325, 332, 334 n.2 (1990) (emphasis added)

(quoting Terry

, 392 U.S. at 21, 27). In no respect does the recordwjl:\opin\92-8274.spe

hrd 18 in this case support the conclusion that Officer Perry had reason

to think defendant Michelletti was both "armed and dangerous."

I.

First, I take issue with the facts set forth by the district

court in its factual findings and by the majority in its opinion.

In its written order, the distric t court made only truncated

findings regarding the question of Michelletti's dangerousness:

6. Officer Perry observed the defendant exiting the

rear door of the bar with a container of beer in his left

hand, and his right hand in his pocket.

7. Officer Perry testified that his experience as

a police officer has proven confrontations between

patrons and police officers are likely to occur during

closing time at bars. Further, he feared for the safety

of himself and his partner, and determi ned a search of

the defendant for weapons was justified. He testified

he was being extremely careful, since a fellow officer

had recently been shot.

There is no eviden ce that in regard to anything Michelletti

did or said, Perry "fea red for the safety of himself and his

partner." The testimony is to the contrary. Asked whether

"anybody [did] anything threatening toward you or your partner,"

Perry replied, "I wouldn't say anybody did anything threatening,

no, sir." When asked whether "[t]he fact that he had his right

hand in his pocket and according to you a beer in his left, that

was a suggestion to you that he was armed and threatening?," Perry

answered, "No, sir, that was not a suggestion that he was armed."

Perry later added, "No, he had not done any overt actions at that

time."wjl:\opin\92-8274.spe

hrd 19 Accordingly, the district court clearly erred in stating that

Perry was in fear at the time he ordered Michelletti to undergo a

search. Without that factual predicate, Terry and Buie cannot be

satisfied, for the district court is left only with the findings

that Michelletti exited the bar with a beer in one hand and the

other hand in his pocket and that Perry was g enerally aware that

confrontations occur with some regularity outside bars at closing

time. Nothing about these facts provides the "individualized

suspicion," Buie

, 494 U.S. at 334 n.2, that the law requires to

show that Michelletti was "armed and dangerous."

Nor does the majority report the facts with sufficient

reliability. Perry testified that Michelletti came "straight out

of the bar." There is no indication that when he exited the bar,

Michelletti "walked toward the policeman and a group of individuals

he was about to question." Majority op. at 2. This casts a shadow

on the majority's assertions that "Michelletti noisily emerged from

the bar, beer in hand, and approached the entire group," i d. at 6,

th at Michelletti made "purposeful strides toward the group that

Perry had just encountered behind the lounge," i d. at 8, that

Michelletti made an "alcoholic and deliberate approach," i d. at 9,

and that "Michelletti . . . was heading straight toward him . . .

," id.

The fact is that, assuming arguendo that Perry had reason to

think Michelletti was doing something suspicious, not hing in the

record supports the conclusion that he posed a threat to anyone.

So, the most that was called for was a momentary stop forwjl:\opin\92-8274.spe

hrd 20 questioning, not a search for weapons. That is the only possible

justification for the search in question, a T erry search for

weapons for the sole purpose of protecting those persons on the

scene.

The testimony at the suppression hearing prov ides no

suggestion that Michelletti was acting in con cert with the three

suspects the of ficers were observing outside the bar. All

Michelletti did was to exit a bar at closing time. Although the

majority tries to make much of potential violations of state liquor

laws, the government now has conceded that Michelletti was guilty

of no liquor law infraction. Yet, he was subjected to a patdown

for leaving the bar with a beer in one hand and the other hand in

his pocket.

II.

The scope of the search conducted on Miche lletti is

questionable. Recently in United States v. Rideau , 969 F.2d 1572

(5th Cir. 1992) (en banc), this court described the limits of

permissible police street encounters. There, the majority opined

that "[t]he scope of [the officer's] `frisk' of Rideau is a

relevant factor for us to consider.

. . . Reaching out to touch

Rideau's pocket was a limited and tailored response to [the

officer's] fears for his safety . . . ." I d. at 1575.

Importantly, the court added the following: "[The defendant] was

not put up against a wall or across a car and subjected to a shake

down." Id. at 1576.wjl:\opin\92-8274.spe

hrd 21 Memories are short. A little more than a year after Rideau

,

the majority today endorses the very procedure that the majority in

Rideau condemned. Perry did much more than "touch [Michelletti's]

pockets." In Perry's words, he instructed Michelletti "to set the

beer down on the car and put his hands on the car. And then I

proceeded to perform a pat down search on him for weapons."

III.

In summary, the only "specific and articulable facts" that the

record even remotely supports to link Michelletti to suspicious

activity are that he exited a bar with a beer in one hand and his

other hand in his pocket. He was in violation of no law (except of

course the weapon possession with which he was charged, a fact the

officer could not have known ex ante ).

These facts are in conspicu ous contrast to those in R ideau

.

There, this court construed the defendant's actions as threatening:

When approached and asked his nam e, Rideau did not

respond but appeared nervous and, critically, backed

away. It was not unreasonable under the circumstances

for [the officer] to have feared that Rideau was moving

back to give himse lf time and space to draw a

weapon. . . .

. . . .

. . . [A]fter Rideau was lawfully detained, he

responded to the request of the officer by backing away

)) a move which in this specific context was reasonably

seen as threatening . [The officer] could reasonably

believe that Rideau was gaining room to use a weapon.

969 F.2d at 1575.wjl:\opin\92-8274.spe

hrd 22 The distinction is that once confronted by the officers in

their execution of a valid Terry initial detention for questioning,

the defendant in Rideau continued to engage in what the majority

called suspicious activity. Moreover, that activity was viewed as

directed toward the officers and implicating their safety, i.e.,

backing away to draw a gun on the officers. The majority held that

this further activity entitled the officers to take the Terry stop

one step further, as "[a] reasonably prudent man in [the officer's]

situation could have believed that his safety and that of his

partner was in danger." Id. at 1574.

By contrast, no reasonable officer could have believed that

Michelletti was "armed and dangerous" except on the basis of the

sort of "inchoate and unparticularized suspicion or `hunch'" that

Buie condemns. S ee Buie

, 494 U.S. at 332 (quoting Terry

, 393 U.S.

at 21). Perry's testimony directly undermines the majority's

unsubstantiated claim that Michelletti walked toward the officers

and that that action was threatening. Perry stated, "[H]e looked

at me, we made eye contact, b ut then he looked away and acted as

though I was not there and tried to walk on by ." (Emphasis added.)

Also in sharp and signi ficant contrast to the situation in

Rideau is the fact that Michelletti, instead of c ontinuing in

suspicious activity once he was addressed by Perry, immediately

cooperated:

I asked him to come over here )) at the time I was

already o ut of my car ) ) to come toward me so that I

could check him for weapons. At that time I asked him to11 As the majority rightly notes, the state court of appeals, albeit with

a record different from the one before us, concluded that the officers had not

articulated sufficient facts to justify the Terry frisk. S ee Majority op. at 7

n.3.

wjl:\opin\92-8274.spe

hrd 23 set the beer down on the car and put his hands on the

car. And then I proceeded to perform a pat down search

on him for weapons.

While there may have been reason for the officers to question

Michelletti briefly, under Terry , to see whether illegal activity

was afoot, the total absence of threatening or suspicious conduct

at that moment deprived the officers of justification to conduct a

full-blown patdown of Michelletti's person. 11

Even if we were to assume )) contrary to any hint in the

record or the district court's findings )) that Michelletti was

walking toward the three men who had been seen moving toward the

bar's rear parking lot, his mere association with them did not

justify a search, absent some suspicious conduct on his part. In

Ybarra v. Illinois

, 444 U.S. 85, 91 (1979), the Court pointedly

observed that

a person's mere propinquity to others independently

suspected of crimin al activity does not, without more,

give rise to probable cause to search that person.

. . . [The requirement of particularized suspicion] cannot be

undercut or avoided by simply pointing to the fact that

coincidentally there exists probable cause to search or

seize another . . . where the person may happen to be.

The Fourth and Fourteenth Amendments protect the

`legitimate expectations of privacy' of persons, not

places.

Accordingly, in Ybarra the Court found no particularized suspicion

even though Ybarra was in a bar next to a person whom the p olice

had a warrant to search. Similarly, in B rown v. Texas

, 443 U.S.

47, 52 (1979), the Court held that the police failed to demonstrate12 The Court described the salient facts as follows:

[The officer] saw one of the men leave the other one and walk

. . . past some stores. The man paused for a moment and looked in a store

window, then walked on a short distance, turned around and walked

back toward the corner, pausing once again to look in the same store

wind ow. He rejoined his companion at the corner, and the two

conferred briefly. Then the second man went through the same series

of motions, strolling down [the street], looking in the same window,

walking on a short distance, turning back, peering in the store

window again, and returning t o confer with the first man at the

corner. The two men repeated this ritual between five and six times

apiece )) in all, roughly a doz en trips. At one point, while the

two were standing together on the corner, a third man approached

them and engaged them briefly in conversation. This man left the

two others and w alked west[, and the first two] resumed their

measured pacing, peering and conferring. After this had gone on for

10 to 12 minutes, the two men walked off together, heading west

. . . , following the path taken earlier by the third man.

By this time Officer McFad d en had become thoroughly

su spicious. He testified that after observing their elaborately

casual and oft-repeated reconnaissance of the store window . . . ,

he suspected the two men of "casing a job, a stick-up," and that he

considered it his duty as a police officer to investigate further.

He added that he feared "they may have a gun."

Terry , 392 U.S. at 6.

wjl:\opin\92-8274.spe

hrd 24 a p articularized suspicion of two persons who were walking away

from each other in an alley i n a high-crime neighborhood and who

"looked suspicious."

An examination of cases in which the Court h as fo und

individualized suspicion is instructive. Remarkably, the majority

attempts to compare the facts here favorably to those in Terry

.

There, an experienced police offi cer on his beat observed in

detail, fo r ten to twelve minutes, the suspicious activities of

three men as they "cased" some retail stores, apparently in

preparation for a robbery. T erry

, 392 U.S. at 5-6. 12 It was

obvious to any reasonable officer that if a robbery was being

planned, one or more of the suspects would have a gun. So, it waswjl:\opin\92-8274.spe

hrd 25 onl y logical for the officer, when conducting the initial T erry

stop, to search for weapons, which he indeed found.

The officer's observation of severa l minutes' duration in

Terry is in marked contrast to the instantaneous conclusion here to

search Michelletti without any real reason to think he was both

"armed and dangerous." S ee Adams v. Williams

, 407 U.S. 143, 147-48

(holding that officer had particularized suspicion that defendant

was armed and presently dangerous where a known informant reported

moments earlier that the defendant was carrying narcotics and a

concealed weapon, and defendant was sitting alone in a car in a

high-crime area at 2:15 a.m.). It is astonishing that the majority

asserts that in the instant case, "Perry's suspicion was no less

reasonable than that which the Supreme Co urt approved in T erry ."

Majority op. at 8.

IV.

What the majority today has done is to espouse a "group

danger" theory of search justification that is, to say the least,

troubling. That theory seems to say that if a person finds himself

amongst other persons who may pose a danger, or in a circumstance

that, because of the time of day or the part of town, may suggest

an increased possibility of criminal activity, that person may be

searched without "particularized facts" or individualized

suspicion" as to him

.wjl:\opin\92-8274.spe

hrd 26 The majority begins its explication of this theory by

establishing reasonable suspicion as to the other men outside the

bar:

There should be no question that the police officer

articulated a reasonable basis to investigate the group

of patrons standing outside the rear of Alacran's lounge.

This issue was not really disputed in the district court.

The man who had just turned and run evasively at the mere sight of a patrol car had joined two others. The police

could not know what these actions might mean, but they

were entitled to find out.

Id. at 6. Significantly, Perry testified that "at that very

instant, there was nothing threatening except for the fact that one

subject that I had first seen was coming around the corner and he

was slightly out of breath."

It is uncontroverted that that person was one of the three

others, not Michelletti. But the majority insists upon making

Michelletti answerable to the situation at hand and subject to

search because of it:

Other circumstances sur rounding the encounter

signaled a need for caution. First, it was closing time

at a bar, a late hour when the presumably sell-lubricated

habitués would begin heading for home )) or for trouble.

The officers were well aware of a higher likeliho od of

angry confrontations at closing t ime. Second, the

officers did not know whether they were confronting one

suspect, two suspects, or all four of the men outside the

bar as suspects in criminal activity. The size of the

group added to the calculation of danger for the police

and for any of the group's innocent members.

Id. at 10-11.

The flaw in this approa ch is that it eviscerates the

requirement of individ ualized suspicion that is so basic to our

Fourth Amendment jurisprudence. As the Court explained in Y barra

,wjl:\opin\92-8274.spe

hrd 27 444 U.S. at 91, one's physical proximity to suspicious persons does

not subject him to search. The dangerousness of the overall

situation does not erode one's expectation of privacy and subject

him even to a patdown )) a "frisk for weapons" that the Supreme

Court recently has reminded us "`constitutes a severe, though

brief, intrusion upon cherished personal security.'" B uie

, 49 4

U.S. at 332 (quoting Terry , 392 U.S. at 24-25).

Equally alarming is the emphasis placed by the district court

and today's majority on the of ficer's awareness that a fellow

officer had been fatally shot only two weeks earlier. S ee Majority

op. at 14. The killing of peace officers is a tragic and

deplorable, but not wholly avoidable, consequence of that line of

work. T e rry and its progeny afford officers a reasonable

opportunity to ensure their safety in the field, but only where the

suspect at hand has aroused individualized suspicion. There is no

hint in our or the Supreme Court's Fourth Amendment pronouncements

that the recent death of another police officer somewhere else in

a large city can in any way erode the c onstitutional rights of

those who thereafter walk the streets of that city. The majority

also emphasiz es the dramatic increase in death and injury among

police of ficers. Again, the statistics are frightening, and one

must have sympathy for officers who daily put themselves in harm's

way. But again, these unhappy facts must not be allowed to intrude

upon the security of the person in his freedom from unreasonable

searches and seizures.wjl:\opin\92-8274.spe

hrd 28 Protection of constitutional rights is most significant at the

margins. Vigilance in protecting free speech, for example, is most

important where the speech is unpopular, though such protection may

be both more distasteful and more difficult. Likewise, recognition

of basic liberty interests is most crucial where countervailing and

sympathetic interests such as police safety are implicated.

The fact is that in an imperfect world, absolute prot ection

for officers is not possible, nor is freedom from r easonable

searches. That is why the law requires that the officer reasonably

believe the suspect is armed and presently dangerous. Justice

Scalia recently opined, in regard to a physical search, that "I

frankly doubt

. . . whether the fiercely proud men who adopted our

Fourth Amendment would have allowed themselves to be subjected, on

mere suspicion of being armed and dangerous, to such indignity

. .

. ." M innesota v. Dickerson

, 113 S. Ct. 2130, 2140 (1993) (Scalia,

J., concurring). Concluding that no reasonable officer could have

believed that Michelletti was both armed and presently dangerous,

I respectfully dissent.