## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1361MN

_____________ United States of America, * * Appellee, *

* Appeal from the United States v. * District Court for the District * of Minnesota. Michael Deshawne Glenn, also known * as George Loper, * * Appellant. *

_____________ Submitted: June 9, 1998

Filed: August 27, 1998

_____________ Before FAGG, BRIGHT, and BEAM, Circuit Judges.

_____________ FAGG, Circuit Judge.

Fol lowing his conviction for being a felon in possession of a firearm, Michae l Deshawne Glenn appeals the district court’s denial of Glen n’s motion to suppress. We affirm.

On June 2, 1997, at about 5:30 p.m., state trooper John Thompson stoppe d Glenn on the interstate in Minneapolis, Minnesota, for driving with a cracked-2-

windshield and a broken taillight. When Thompson approached Glenn’s vehicle, Glenn immediately and re

peatedly apologized. Thompson asked Glenn for a driver’s license and proof of insurance. Glenn said he did not have his driver’s license, whic h Thompson interpreted to mean Glenn did not have his license with him. Glenn als o failedto produce proof of insurance. Glenn did, however, give Thompson a stat e welfare identification card containing his name and photograph. Thompson recognized Glenn’s nam e from Thompson’s former employment with an area jail, but could no t recall the nature of Glenn’s offens e. Because the card Glenn provided was insufficient to identify him for purposes of the traffic s top, Thompson asked Glenn to come back to his patrol car so Thompson could access Glenn’s driving record on Thompson’ s computer.

When Glenn and Thompson reached the patrol car, Thompson searched Glenn for weapons before placi ng him in the back seat. During this search, Thompson found
a load ed semi-automatic handgun in Glenn’s pants pocket. Thompson then arreste d Glenn for carr

ying a concealed weapon and handcuffed him. Thompson also took out Glenn’s wallet to locate additio nal identification and found a driver’s license with both the na me “George Loper” and Glenn’s photograph. After Thompson placed Glenn in the back of the patrol car and began asking routine identification questions, Glen n volunteered tha

t he had a felony record. Thompson then remembered Glenn had been at the jail for a drive-by shooting. Thompson ran a computer check on Glenn an d learned Glenn did not have a valid license.
Glenn was charged with being a felon in possession of a firearm. See 18 U.S.C. § 922(g) (1994). Glenn moved to suppress the handgun, contending the pat-dow n
sear ch violated his Fourth Amendment rights. The magistrate judge recommende d denia lof the motion to suppress because the handgun would inevitably have bee n discovered. According to the magistrate judge, once Thompson learned Glenn did not have a valid driver’s license, Thompson would have arrested Glenn for that offense and searched Glenn incident

to the arrest. The district court denied the motion to suppress-3-

on the b asis that the search was reasonable. Glenn then entered a conditional guilt y plea, reservin g his right to appeal the district court’s ruling on his suppression motion.
On appeal, Glenn does not contest the traffic stop’s validity, Thompson’s request that he step out of his vehicle, or Glenn’s detention for a computer check of his license. Glenn contends only that the motion to suppress should have been granted be cause there
was no reasonable, articulable suspicion sufficient to justify the pat-down search an d because the gun would not inevitably have been discovered. We review the fact s supporting the district court’s denial of the motion to suppress for clear error and review de novo the legal conclusions based on those facts. See Ornelas v. United States , 517 U.S. 690, 699 (1996); United States v. Cunningham , 133 F.3d 1070, 1072 (8th Cir.), cert. denied , 118 S. Ct. 1823 (1998).
We agree with Glenn that the reasonabl e, articulable suspicion needed to justify the pat-down sea

rch is absent in this case. The United States Supreme Court has held a warrantless pat-down search for weap ons is permissible when there are “specific and articulable facts which, taken together with ration al inferences from those facts,” would lea d a police officer reasonably to believe the suspect is “armed and presentl y dangerous to the officer or to others.” Terry v. Ohio , 392 U.S. 1, 21 & 24 (1968) ;
see United States v. Menard , 95 F.3d 9, 10-11 (8th Cir. 1996). To de cide whether there is a reasonable, articulable suspicion that a suspect is armed and presently dangerous, we consider the totality of circumstance s known to the officer at the time of the search. See Menard , 95 F.3d

at 11-12; United States v. Abokhai , 829 F.2d 666, 670 (8th Cir. 1987).
At the time of the search in this case, Thompson knew he cou ld only ticket Glenn for the equipment violations that initially prompted the traffic stop. Additionally , Thomps on testified he could not arrest Glenn for driving without his license in hi s possession. Thompson also knew that Glenn apologized repeatedly when Thompson approached Glenn’s car and was a former jail detainee. Because Thompson did not-4-

recall the violent nature of Glenn’s earlier offense until after he searched Glenn , Thompson’s recollection of Glenn as a former jail detainee provi ded no factual basis for believing Glenn was dangerous and might be armed at the time Thompson conducted the search. Cf. United States v. Woodall , 938 F.2d 834, 837 (8th Cir. 1991) (statin g officer had reasonable suspicion sufficient to search driver during routine traffic sto p beca use officer recognized driver as drug trafficker and knew drug traffickers ofte n carried weapons). Indeed, Thompson testi fied that Glenn’s behavior did not cause him to fear for his safety and that he had no reason to believe Glenn had a gun. Instead , Thompson testified he searched Glenn solely because this was his r outine practice when placing dr ivers in the back seat of his car during traffic stops. In these circumstances, we conclude Thompson lacked a reasonable, articulable suspicion that Glenn was armed and dang erous at the time of the search. Cf. Menard , 95 F.3d at 10-11 (findin g
reasona ble, articulable suspicion because officer was outnumbered by vehicle’ s occupants, officer recognized one passenger as drug trafficker found to be carrying a
wea pon, and stop occurred late at night on deserted road); Abokhai , 829 F.2d at 67 0 (finding reasonable, articulable suspicion because of Abokhai’s equivocal responses to questions, recent armed robbery in th e area, possible presence of unaccounted for third person, and Abokhai’s suspicious behavior).
Despite the absence of any suspicion that Glenn was armed and presentl y dangerous, the Government would have us hold Thompson’s decision to place Glenn in his patr ol car during this routine stop was sufficient to justify the pat-down searc h solely because this decision placed Thompso n in a potentially vulnerable position. The Gover nment’s argument is contrary to Terry ’s reasonable suspicion requirement an d woul d permit law enforcement officers to pat down all traffic offenders simply b y choosing to place them in the bac k seat of patrol cars during traffic stops. An officer’s deci sion to place a traffic offender in the back of a patrol car does not create a
reas onable, articulable suspicion to justify a pat-down search that the circumstance s would not otherwise allow. Cf. Abo khai , 829 F.2d at 670 (holding pat-down search of Abokhai before placing him in back seat of patrol car permissible because officers-5-

had reasonable suspicion Abokhai was armed and presently dangerous based on totality of circumstances).
Although the search was not justified at the time , the gun need not be suppressed because Thompson would have inevitably discovered it in a search incident to Glenn’s
arres t for driving without a license. Illegally seized evidence may be admitted if th e Governm ent

proves “by a preponderance of the evidence: (1) that there was a reasonable pro bability that the evidence would have been discovered by lawful means in the absence of police misconduct, a nd (2) that the government was actively pursuing a substantial, alternative line of investigatio n at the time of the constitutional violation.” Unite d States v. Conner , 127 F.3d 663, 667 (8th Cir. 1997); see Nix v. Williams , 467 U.S. 431, 444 & 448 (1984). Here, the Government met its burden of proof on both parts of this test.
When the search took place in this case, the record shows Thompson was in the process of identifying Glenn as a permissible part of the initial traffic stop. See United State s v. Barahona , 990 F.2d 412, 416 (8th Cir. 1993) (finding driver’s continue d deten tion permissible because detention was reasonably related in scope t o circumstances that initially prompted traffic stop). The record also shows Thompson
wou ld have completed the license check even if he had not found a weapon. Th e license c heck revealed Glenn was operating a vehicle without a driver’s license, a misdemeanor offense for

which he could be arrested under Minnesota law. See Minn. Stat. Ann. § 171.02 subd. 1 (West Supp. 1998); Minn. Stat. Ann. § 171.241 (Wes t 1986); Minn. Stat. Ann. § 609.03 subd. 3 (West 1987). Minnesota officers must arrest for misdemeanor s when “it reasonably appears to the officer that arrest or detention is necessary to prevent . . . further criminal conduct.” Minn. R. Crim. P. 6.01(1)(a). We believe t here is a reasonable probability Thompson would have arrested Glenn fo r operating a vehicle without a lic ense because the parties were on an interstate highway and Glenn had

no apparent means of leaving the scene without driving his vehicle and thus perpetuating the offense. Once arrested, Thompson would have searched Glenn-6-

inciden t to that lawful arrest, and the handgun would have been discovered. Se e Conrod v. Davis , 120 F.3d 92, 96 (8th Cir. 1997), c ert. denied , 118 S. Ct. 1531 (1998).
Although Thompson lacked a reasonable , articulable suspicion to justify the patdown search conducted before placing Glenn in the back of his patrol car, we conclude Thompson would inevitably have discovered the handgun once he perf ormed the license check and arrested Glenn. Thus, the district court properly denied Glenn’s motion to suppress. We affirm Glenn’s conviction.
BEAM, Circuit Judge, concurring.
I concur in the result reached by the court and I agree t hat Glenn's weapon would have been "inevitably discovered." However, I would not reach that issue because I believe that Officer Thompson did not violate Glenn's Fourth Amendment rights in the first instance. We deal here with a protective frisk describ ed in Terry v. Ohio , 392 U.S. 1, 88 (196 8). This security "pat down" was conducted just before Glenn, a legall y detained traffic violator, was placed in the rear seat of the police vehicle so tha t Thomps on could turn his attention toward checking Glenn's licenses, registrations , warrants and other relevant information.

While the constitutional analysis under Terry is necessarily fact specific, it i s essentially an objective test. Cf. Klingler v. United States , 409 F.2d 299, 304 (8th Cir. 1969). It is my view that anytime the circumstances surrounding a traffic stop allow,
as here, the placing of a detainee inside a police car with a lone officer, the so-calle d Terry doctrine permits an out-side-the-clothing security search. Thus, under the facts of this cas e, a reasonable police officer was constitutionally entitled to carry out th e protect ive frisk conducted by Thompson. Accordingly, I would affirm Glenn' s conviction on that basis.-7-

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.