* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estop pel. The court generally disfavors the citation of orders and judgments; nev ertheless, an order and judgment may be cited under the terms and condition s of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. 

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

### OCT 5 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MASON L. HARDY, Defendant-Appellant. No. 98-4017 (D.C. No. 96-CR-276-G) (D. Utah)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges. **
Defendant Mason L. Hardy entered a conditional pleaof guilty to a three-count indictment charging him with possessionof controlled substances with intent to distribute, and aiding and abetting. Defendant reserved the right to appeal the district court’s denial of his motion to suppress evidence obtained2

during a traffic stop. On appeal, Defendant argues that the search of his luggage located in the trunk of the rental car he was drivi ng was not consensual, not based on reasonable suspicion, and not within the scope o f a permissible inventory search. He further maintains the evidence was not admissible under the inevitable discovery doctrine. We affirm the district court’s decision to deny Defendant’s motion to suppress, but on a ground different than that upon which the district court relied. See United States v. Bunner , 134 F.3d 1000, 1005 (10th Cir.), petition for cert. filed April 24, 1998 (court of appeals may affirm on anyground supported by the record). I. An Emery County, Utah sheriff’s deputy stopped Defe ndant for speeding. A computer check revealed that the automobile was r ented and that neither Defendant nor his passenger was authorized to drive it. The deputy contacted the car rental company, which requested that the car be impounded. The rental company also consented to a search of the car. Whe n the deputy informed Defendant that the car would be impounded and he an d his passenger would be driven to a bus station to continue their trip, Def endant became visibly upset and began removing numerous items from the car, includi ng a black bag from the trunk. After Defendant placed the black bag on the pavement, he began to remove articles from it when the deputy specificall y asked him if the bag1 Although Defendant lacks standing to object to any search of the car because he

did not prove he had lawful possession of it at the time of the stop, e.g. , United States v. Miller , 84 F.3d 1244, 1249-50 (10th Cir. 1996), overruled on other grounds by United States v. Holland , 116 F.3d 1353 (10th Cir. 1997), Defendant has standing to challenge the search of his personal luggage. See United States v. Martinez , 983 F.2d 968, 973 (10th Cir. 1992). 3 contained any weapons. Promptly thereafter, the de puty ordered defendant to stop reaching into the bag. Defendant then stepped away from the bag. Immediately thereafter, the deputy looked in the bag and discov ered the narcotics. The deputy arrested Defendant. Defendant filed a motion to suppress, alleging the deputy’s search of the black bag violated his Fourth Amendment rights. 1 After an evidentiary hearing, the district court ru led that the black bag would have been opened and searched in the course o f an inventory search of the car. Thus, although the deputy inspected the conte nts of the bag before the inventory search, the district court concluded thatthe evidence inevitably would have been discovered. See United States v. Haro-Salcedo , 107 F.3d 769, 773 (10th Cir. 1997) (if evidence seized unlawfully wou ld have been inevitably discovered pursuant to a legal search, such evidence is admissible) (citing Nix v. Williams , 467 U.S. 431, 444 (1984)). Therefore, the distri ct court ruled the evidence admissible and denied Defendant’s motion t o suppress. In reviewing the district court’s denial of a motio n to suppress, we examine the court’s findings of fact for clear error, viewi ng all facts in the light most4

favorable to the government, but review de novo the reasonableness of the seizure and search. Haro-Salcedo , 107 F.3d at 771. We may affirm a district court’ s holding on grounds not relied on by the district co urt, so long as the record is sufficient to permit conclusions of law. See Bunner 134 F.3d at 1005. Our review of the record compels us to conclude that th e deputy’s search of the black bag was permissible for reasons other than an inevi table inventory search. II. A police officer may conduct a limited search for w eapons if he “possesses a reasonable belief based on ‘specific and articula ble facts which, taken together with the rational inferences from those facts, reas onably warrant’ the officer in believing that the suspect is dangerous and the sus pect may gain immediate control of weapons.” Michigan v. Long , 463 U.S. 1032, 1049 (1983) (quoting Terry v. Ohio , 392 U.S. 1, 21 (1968)) (footnote omitted)). Wher e a police officer has reason to believe that he is dealing with an ar med and dangerous individual, he may conduct a reasonable search for weapons for his own protection, even if he does not have probable cause for arrest, and eve n if he is not certain that the individual is armed. See Terry , 392 U.S. at 27. The question is whether a reasonably prudent officer drawing reasonable infer ences from the facts in light of his experience would believe his safety was in danger. See id.5

In this case, Defendant became visibly upset when t he deputy informed him that the car would be impounded. Defendant attempt ed to argue with the deputy about impounding the car. He angrily tossed his be longings from the car onto the pavement. At the hearing, the deputy testified that he was “very concerned that [Defendant] would become confrontational” because h e was “becoming increasingly agitated.” R. Supp. Vol. V at 25. Th e deputy further testified that he informed Defendant that for the deputy’s own safetyhe would check the black bag for weapons. See id. at 15. The deputy was justifiably concerned for his safetybecause of Defendant’s obvious distress and erratic behavior. As the Supreme Court stated in Long , 463 U.S. at 1049, “roadside encounters between police a nd suspects are especially hazardous, and . . . danger may arise from the poss ible presence of weapons in the area surrounding a suspect.” The black bag was within Defendant’s reach and large enough to contain a weapon. The deputy prope rly restricted his search “to those areas to which [defendant] would generally have immediate control, and that could contain a weapon.” Id. at 1050. Accordingly, we hold that the deputy’s search of the black bag was reasonable bec ause he was justifiably concerned for his safety in checking the bag for we apons.6

The judgment of the United States District Court fo r the District of Utah is AFFIRMED. Entered for the Court
Bobby R. Baldock Circuit Judge