United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3102

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United States of America, *

*

Appellee, *

*

v. *

*

Jose Ramirez Garcia, *

*

Appellant. *

Appeals from the United States

__________ District Court for the Southern

District of Iowa.

No. 05-3755

__________ 

United States of America, *

*

Appellee, *

*

v. *

*

Patricio Gonzalez, also known as *

German Ruiz, *

*

Appellant. *

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Submitted: March 14, 2006

Filed: March 22, 2006

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Before WOLLMAN, FAGG, and RILEY, Circuit Judges.
*

The Honorable James E. Gritzner, United States District Judge for the Southern

District of Iowa. 

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___________

FAGG, Circuit Judge.

Police seized evidence from Jose Ramirez Garcia and Patricio Gonzalez during

separate warrantless searches. After their motions to suppress were denied, juries

convicted both men of conspiracy to distribute methamphetamine, distribution of

methamphetamine, and possession with intent to distribute methamphetamine. Garcia

was sentenced to 180 months in prison, and Gonzalez was sentenced to 240 months

in prison (the mandatory minimum under 18 U.S.C. § 841(b)(1)(A)). In this

consolidated appeal, Garcia and Gonzalez challenge the denials of their motions to

suppress. 

 Garcia contends the district court*

 should have granted his motion to suppress

evidence seized during a search of his vehicle. During the hearing on Garcia’s

motion, an officer with fifteen years of experience in narcotics testified that he was

conducting surveillance on a building based on earlier drug transactions there. The

officer saw Garcia standing by a blue Dodge pickup truck in the parking lot. The

officer noticed Garcia seemed to be looking around to see if anyone was watching

him, and saw an unusually large bulge in the front pocket of Garcia’s pants. After

Garcia knocked on doors to an apartment in the building several times and received

no response, Garcia removed the large object from his pocket, placed it in a green box,

and put the green box in the back of his pickup. With the officer following, Garcia

and his passenger then left the area, entered and the freeway, and pulled into a church

parking lot. When Garcia got out of the truck, the officer approached, identified

himself as a police officer, and showed Garcia his badge. The officer asked Garcia

for his driver’s license, but Garcia could not produce one. The officer saw Garcia

looked pale and appeared very nervous. The officer asked Garcia for consent to
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search the truck, and Garcia consented. The officer then went immediately to the

green box in the back of the pickup and found a large bag of methamphetamine.

Garcia was arrested, and a further search of the vehicle resulted in the seizure of more

methamphetamine, for a total of nearly one pound. 

Garcia contends there was an investigatory stop in the church parking lot and

the stop violated the Fourth Amendment because the officer lacked a reasonable

suspicion of criminal activity. We conclude no Fourth Amendment violation

occurred. Police do not violate the Fourth Amendment merely by approaching

individuals in public places and asking questions, requesting identification, and

requesting consent to search, as long as the police do not coerce cooperation. United

States v. Drayton, 536 U.S. 194, 200-01 (2002). Here, the district court stated that

Garcia’s vehicle was never stopped by police, and with no earlier contact or directive

from law enforcement, Garcia parked and exited his vehicle in the church parking lot.

Only then did the officer approach Garcia and begin to question him about

identification, and Garcia could not produce a license. The officer requested consent

to search, and Garcia does not contest the validity of his consent. 

Even if there was an investigatory stop in this case, the stop was justified

because the officer had a reasonable suspicion that Garcia was involved in criminal

activity. United States v. Spotts, 275 F.3d 714, 718-20 (8th Cir. 2002). The officer

had seen Garcia at a known drug house, acting in a furtive manner, trying to make

contact with residents while concealing an object in his pants, then removing the

object and placing it in the back of his truck after he failed to make contact. Given

the officer’s specialized training in narcotics enforcement, the officer could reasonably

believe criminal activity was afoot. 
**The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa.

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Gonzalez also asserts the district court** should have granted his motion to

suppress. At the suppression hearing, a police officer testified that after he stopped

a vehicle being driven by Gonzalez for a traffic violation, Gonzalez handed him an

Iowa identification card and told him his driver’s license might be suspended due to

a drug-related conviction. From a computer check on Gonzalez, his passenger, and

the vehicle, the officer learned there were no arrest warrants for Gonzalez or his

passenger, but neither had a driver’s license and the vehicle was registered to a third

person. At the officer’s request, Gonzalez exited the vehicle. The officer then

performed a pat down search for his safety, and felt an object in Gonzalez’s left rear

pocket. The officer asked Gonzalez what the object was, and Gonzalez responded it

was a glass pipe. The officer removed the pipe and saw it had been used and

contained a white residue. The officer then arrested Gonzalez for not having a

driver’s license and possessing drug paraphernalia. The officer then searched the

vehicle incident to Gonzalez’s arrest. Inside the center console, the officer located a

cigarette box wrapped in foil containing marijuana and methamphetamine. During the

search, the officer also found several butane torches, a torch head, baggies, $540 in

cash, drug notes, and digital scales with white residue.

Gonzalez attacks the pat down asserting it violated his Fourth Amendment

rights because the officer did not have reasonable suspicion that Gonzalez posed a

danger. When a police officer reasonably believes a person may be armed and

dangerous, the officer may frisk the person for weapons. United States v. Cornelius,

391 F.3d 965, 967 (8th Cir. 2004). A pat-down search or protective frisk is justified

by officer safety. Id. at 967-68. Gonzalez contends that the officer’s knowledge that

his license had been suspended for an earlier drug conviction did not give rise to a

reasonable belief that he posed a danger. Given the officer’s knowledge that Gonzalez

had an earlier drug conviction, was driving a car neither he nor his passenger owned,
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and was driving without a license, we conclude the officer could reasonably conclude

in light of his experience that criminal activity might be afoot and Gonzalez might be

armed and dangerous. See id.; United States v. Bustos-Torres, 396 F.3d 935, 943 (8th

Cir. 2005) (reasonable for officer to believe person suspected of drug activity might

be armed and dangerous); United States v. Shranklen, 315 F.3d 959, 963 (8th Cir.

2003) (reasonable for officer to believe driver was armed and dangerous when neither

driver nor passenger owned vehicle or had valid license). Once Gonzalez was

arrested, the search of his vehicle was permissible incident to his arrest. United States

v. Barnes, 374 F.3d 601, 603 (8th Cir. 2004). 

Gonzalez next contends his Fifth and Sixth Amendment rights were violated

when the court, rather than the jury, found the fact of his earlier conviction for the

purpose of 18 U.S.C. § 841(b)(1)(A). Gonzalez acknowledges this contention is

contrary to controlling law, Almendarez-Torres v. United States, 523 U.S. 224 (1998);

United States v. Carrillo-Beltran, 424 F.3d 845, 848 (8th Cir. 2005) (post-Booker), and

seeks only to preserve error in the event the Supreme Court revisits the issue. See

Shepard v. United States, 544 U.S. 13, __, 125 S. Ct. 1254, 1264 (2005) (Thomas, J.,

concurring in part) (stating a majority of the Court recognizes Almendarez-Torres was

wrongly decided, but has yet to reconsider the issue). 

Citing United States v. Okai, No. 4:05CR19, 2005 WL 2042301, at *7-10 (D.

Neb. Aug. 22, 2005) (unpublished), Gonzalez last argues the Fifth Amendment Due

Process Clause requires his drug quantity to be proven to the court beyond a

reasonable doubt. Gonzalez acknowledges precedents hold that only a preponderance

of evidence is required, but argues the precedents do not control because they are

based on the Sixth Amendment. We need not decide whether the Fifth Amendment

requires a higher burden of proof at sentencing because, as Gonzalez recognizes, the

issue is moot in light of the district court’s finding that the mandatory minimum

controlled in this case. 
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Accordingly, we affirm. 

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