United States v. Tuggle

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 14, 2008

No. 07-30814 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff - Appellant

v.

BOBBY TUGGLE, JR

Defendant - Appellee

Appeal from the United States District Court

for the Middle District of Louisiana, Baton Rouge

USDC No. 3:07-CR-50-1

Before KING, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

Defendant-Appellee Bobby Tuggle, Jr., was charged with possessing a

firearm as a convicted felon. The government appeals the district court’s

granting of Tuggle’s motion to suppress the seized firearm. We reverse and

remand.

I.

On March 7, 2007, Bobby Tuggle, Jr., was indicted on one count of being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On April

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

No. 07-30814

19, 2007, Tuggle filed a motion to suppress the firearm, arguing that it was the

fruit of an unconstitutional search and seizure. A hearing on the motion was

held on August 21, 2007. Officer Timothy Wilkinson was the only witness to

testify at the hearing. He testified to the following events, which, according to

the government, establish reasonable suspicion for the Terry stop and frisk of

Tuggle. See Terry v. Ohio, 392 U.S. 1 (1968).

At the time of the stop, Officer Wilkinson, an officer in the auto-theft

division of the Baton Rouge Police Department (“BRPD”), had been investigating

an auto-theft ring at the Baton Rouge Metropolitan Airport where fifty to sixty

vehicles had been stolen. On January 4, 2006, it was reported that a couple of

the stolen vehicles, as well as the suspects involved, were located at 2915

Chippewa Street, and Wilkinson proceeded to that address. Wilkinson had

specific information that the boyfriend of the woman living at the Chippewa

residence was involved in the auto-theft ring. Although he had the boyfriend’s

name, Wilkinson did not have a physical description.

The Chippewa residence, according to Wilkinson, was located in a high

crime area known for narcotics and street crimes. Specifically, Wilkinson

testified that several years prior to the auto-theft investigation, he had been

involved in narcotics arrests on Chippewa, and that more recently he had

examined police reports indicating narcotics activity there. Wilkinson was also

aware of a shooting that occurred on the particular block involved in this case.

However, he “couldn’t tell [defense counsel] for sure” whether narcotics arrests

had been made in the last two years on Chippewa Street.

When Wilkinson arrived on Chippewa, he made an initial pass by the

address in an unmarked police vehicle. He noticed two vehicles parked in the

yard of the residence, “even [with], but towards the back part of the house.”

Wilkinson copied down the license plate number of one of the vehicles visible

from the road, ran the plate, and confirmed that the vehicle was stolen. He then

2

No. 07-30814

notified the BRPD Uniform Patrol Division and requested assistance in

returning to the residence to investigate and recover the stolen vehicle.

Within approximately ten to fifteen minutes, Wilkinson, accompanied by

other BRPD officers, returned to the Chippewa residence where he had

identified the stolen vehicle. BRPD Officer Steven Parks, who was traveling in

a marked BRPD car, drove up to the residence behind Wilkinson. Additional

BRPD officers in marked units arrived upon the scene within a “matter of

seconds.” As Wilkinson and Parks approached the residence, they observed a car

stopped in the middle of the roadway. Its motor was running and a “black male,”

later identified as Tuggle, was leaning into its driver’s side window. As the

officers pulled up, the vehicle “sped away.” At that point, Tuggle turned and

“briskly walked away” from the officers and toward the stolen vehicle parked in

the yard of the Chippewa residence. According to Wilkinson, based on his

experience and the criminal nature of the neighborhood, Tuggle’s posture and

behavior at the car were consistent with a street-level narcotics transaction.

Further, because Tuggle subsequently approached the stolen vehicle, Wilkinson

testified that he inferred that Tuggle might be one of the suspects involved in the

auto-theft ring.

According to Wilkinson, Tuggle traveled about ten to fifteen feet away

from the street and into the yard of the residence and was approximately fifteen

feet away from the stolen vehicle when the officers called out to him to come

back to their location. Yielding to their command, Tuggle turned around and

headed back to the street. Wilkinson testified that when Tuggle reached the

officers, he was “very nervous” and “shaking uncontrollably.” The officers

conducted a patdown and discovered that Tuggle was carrying a .38 caliber

revolver in his back left pocket. Tuggle was placed under arrest for illegally

carrying a weapon. Thereafter, the officers recovered both vehicles in the yard,

after confirming the second was also stolen.

3

No. 07-30814

Before making its decision on the motion to suppress, the district court

asked Wilkinson whether Chippewa Street had sidewalks. Wilkinson replied

that it did not. The district court then surmised that anyone walking down the

side of the street of the Chippewa residence would necessarily be walking toward

the stolen vehicle. Wilkinson responded that a person simply walking down the

street would not need to travel approximately fifteen feet into the yard of the

Chippewa residence and come within fifteen feet of the stolen vehicle, as Tuggle

allegedly had. The district court was also curious about what happened with the

car and driver who had “sped away.” Wilkinson had testified that BRPD Officer

Gewalt went after the vehicle, and the district court was interested in knowing

what came of the stop. It found the fact that Wilkinson did not question Gewalt

about his stop of the vehicle odd, stating, “If you thought you had a drug deal

why didn’t you talk to one of the officers that followed up on the drug deal?”

Wilkinson replied, “Well [Gewalt] came back to our location within just a couple

of minutes[,] and there was nothing to the stop that he had made.”

At the conclusion of the hearing, the district court found that the police

lacked reasonable suspicion for a Terry stop and frisk of Tuggle on the date in

question. First, discussing the “supposed drug deal,” the district court stated:

[T]he reasonable suspicion on that point is that [Tuggle]

was standing at or leaning in the driver’s window of a

vehicle that was stopped in the middle of the street.

And when the police pulled up the vehicle pulled off,

sped off and [Tuggle] walked away in a [manner] that

was described as a brisk walk. None of those facts

taken alone or together would provide reasonable

suspicion that a drug offense was either occurring or

about to occur. After the officers pulled up there was

testimony that one of the officers pursued and stopped

the car that had sped away. But Officer Wilkinson

couldn’t say what happened after that because

apparently nothing was told to him by the officer who

stopped the vehicle. It strikes me as strange that if you

think there’s a drug deal going on, and the car allegedly

4

No. 07-30814

involved in the drug deal is stopped, seems to me

somebody ought to say something about what happened

after the car was stopped, why there wasn’t an arrest of

the driver. Or if there was an arrest of the driver, what

was found, and that sort of thing. There’s none of that

in this case.

The district court next discussed the “other articulable reason for the

stop”—the fact that Tuggle briskly walked away from the officers and toward the

stolen vehicle. The district court concluded that this evidence similarly failed

to establish reasonable suspicion to believe criminal activity was afoot. In

making that determination, the district court noted that walking toward a stolen

vehicle is not a crime in itself, that there was no evidence connecting Tuggle to

the stolen vehicle, and that the cars were parked in a yard apparently open to

the street so that “anybody walking in that area was going to walk either

towards or in the area of those stolen vehicles.” The district court then turned

to the legality of the frisk and concluded that “there’s no evidence at all to

indicate that the officers had a reasonable belief that they were dealing with an

armed individual prior to the time that the defendant was stopped.”

Accordingly, the district court granted Tuggle’s motion to suppress the seized

firearm. Thereafter, the government filed a timely notice of appeal.

II.

“In reviewing a district court’s ruling on a motion to suppress, we review

questions of law de novo, and accept the trial court’s factual findings unless they

are clearly erroneous.” United States v. Castro, 166 F.3d 728, 731 (5th Cir. 1999)

(en banc). “In reviewing findings of fact, we view the evidence in the light most

favorable to the party prevailing below,” which in this case is the defendant,

Tuggle. United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005) (citing

United States v. Shelton, 337 F.3d 529, 532 (5th Cir. 2003)). “If this review leads

us to the ‘definite and firm conviction that a mistake has been committed[,]’ then

the district court’s factual finding must be deemed clearly erroneous.” Id. at

5

No. 07-30814

429–30 (quoting Payne v. United States, 289 F.3d 377, 381 (5th Cir. 2002)). Also,

the district court’s determination of whether the facts provided reasonable

suspicion is a conclusion of law reviewed de novo. Id. at 430 (citing Ornelas v.

United States, 517 U.S. 690, 699 (1996)); see also United States v. Holloway, 962

F.2d 451, 459 (5th Cir. 1992). In evaluating the reasonableness of an officer’s

actions, “due weight” must be given to the facts and inferences viewed “in light

of [the officer’s] experience.” United States. v. Michelletti, 13 F.3d 838, 841 (5th

Cir. 1994) (en banc) (quoting Terry, 392 U.S. at 27).

III.

The government challenges the district court’s decision to grant the motion

to suppress, arguing first that the district court erred by addressing and

rejecting Wilkinson’s observations separately, rather than considering the

“totality of the circumstances of the stop” in its analysis. The government next

argues that the district court erred by focusing on Wilkinson’s failure to inquire

about the fate of the vehicle that sped off as a basis for discounting Wilkinson’s

observations. The government submits that the failure to learn about, or

present testimony of, any evidence recovered after the stop does not negate

Wilkinson’s suspicions of narcotics trafficking based on the facts observed at the

time of the stop. Further, contrary to the district court’s conclusion that no facts

were presented supporting Wilkinson’s belief that Tuggle could be a member of

the auto-theft operation, the government points to Tuggle’s hurried retreat

toward the stolen car. And, finally, the government avers that the officers

reasonably believed that Tuggle was armed and dangerous based in part on their

suspicion of narcotics trafficking since “weapons are tools of the trade of

narcotics traffickers.”

In response, Tuggle asserts that the district court’s decision to suppress

the firearm evidence was proper considering that the government only proved

that there was a stolen vehicle in the area where Tuggle was located, and that

6

No. 07-30814

Tuggle was walking in that direction. Tuggle maintains that this was

insufficient to warrant reasonable suspicion that Tuggle was, or was about to be,

engaged in criminal activity. Tuggle also notes that although Wilkinson testified

to the suspected narcotics trafficking at the hearing, he did not include his

suspicions in his police report. According to Tuggle, this failure undermined

Wilkinson’s credibility with the district court. Tuggle further maintains that the

district court correctly found that there was simply no evidence on the issue

whether the officers had reasonable suspicion to believe that Tuggle was armed

and dangerous.

The legality of police investigatory stops is tested in two parts. United

States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). We “first

examine whether the officer’s action was justified at its inception, and then

inquire whether the officer’s subsequent actions were reasonably related in scope

to the circumstances that justified the stop.” Id. (citing Terry, 392 U.S. at

19–20). Pursuant to Terry, “[p]olice 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.” Michelletti, 13 F.3d at 840 (en banc) (citations omitted).

“Reasonable suspicion must be supported by particular and articulable facts,

which, taken together with rational inferences from those facts, reasonably

warrant an intrusion.” Id. (citation omitted).

Of course, “the policeman making a reasonable investigatory stop should

not be denied the opportunity to protect himself from attack by a hostile

suspect.” Adams v. Williams, 407 U.S. 143, 146 (1972). The Court in Terry thus

held that “[w]hen an officer is justified in believing that the individual whose

suspicious behavior he is investigating at close range is armed and presently

7

No. 07-30814

dangerous to the officer or to others,” he may conduct a limited protective search

for concealed weapons. Terry, 392 U.S. at 24. 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. Michelletti, 13 F.3d at 840–41 (citing Terry, 392 U.S. at 27).

“In assessing the reasonableness of an officer’s actions, it is imperative

that the facts be judged against an objective standard: would the facts available

to the officer at the moment of the seizure or the search warrant a man of

reasonable caution in the belief that the action taken was appropriate?” United

States v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc) (quoting Terry,

392 U.S. at 22) (internal quotation marks omitted). This inquiry does not

depend on the “officer’s state of mind, or his stated justification for his actions.”

Id. (citing Maryland v. Macon, 472 U.S. 463, 470–71 (1985)). Instead, the

Fourth Amendment is satisfied “[a]s long as all the facts and circumstances,

viewed objectively, support the officer’s decisions.” Id. In short, “[w]e must

attempt to put ourselves in the shoes of a reasonable police officer as he or she

approaches a given situation and assesses the likelihood of danger in a

particular context.” Id.

A.

In finding that the officers’ initial stop of Tuggle was not justified by

reasonable suspicion, the district court erroneously split the evidence into two

discrete events—the suspected drug deal and the quick retreat toward the stolen

vehicle. The correct approach under Terry is to objectively examine the “totality

of the circumstances.” And, although the standards of reasonableness are “not

readily . . . reduced to a neat set of legal rules,” Ornelas, 517 U.S. at 695–96

(citation omitted), some factors considered germane to a reasonable suspicion

analysis include: whether the area where the stop occurred was a high crime

area or one “of expected criminal activity,” Illinois v. Wardlow, 528 U.S. 119, 124

8

No. 07-30814

(2000); whether the individual engaged in “unprovoked flight upon noticing the

police,” id.; and whether the individual looked nervous or made furtive gestures

or suspicious movements, United States v. Watson, 953 F.2d 895, 897 (5th Cir.

1992). For example, the defendant in Wardlow fled upon seeing police cars

converge in an area known for having heavy drug activity. 528 U.S. at 122. In

analyzing whether the officers had reasonable suspicion to pursue the defendant,

the Supreme Court noted that while a person’s presence in a high crime area is

not enough, standing alone, to create reasonable suspicion, it is among the

relevant contextual factors that may be considered. Id. at 124. Likewise,

“nervous, evasive behavior” is appropriate to a reasonable suspicion analysis,

explained the Court. Id. “Headlong flight—wherever it occurs—is the

consummate act of evasion: It is not necessarily indicative of wrongdoing, but

it is certainly suggestive of such.” Id.

At the suppression hearing in this case, Wilkinson, who had been a

member of BRPD for twenty years—ten years in auto-theft, eight years in

Uniform Patrol, and two years in General Detectives Division—testified that he

was cognizant of the criminal characteristics of the Chippewa neighborhood

when he proceeded to the residence to investigate the auto-theft ring. The

district court was unwilling to credit this testimony, stating, “Where is my

evidence that this was a high crime area? The officer was asked about that and

the best he could [ ] tell me [was that] a couple of years ago, there was some drug

deals, as far as he knew.” The district court was referring to Wilkinson’s

admission on cross-examination that he had no definitive information regarding

narcotics arrests made on that block within the past two years. In focusing on

this admission, the district court disregarded Wilkinson’s earlier testimony

about the neighborhood’s criminal reputation. In particular, Wilkinson testified

that he was familiar with the criminality of the area, as he had been with BRPD

for twenty years; that he had examined police reports detailing recent criminal

9

No. 07-30814

activity in the area before driving out to the Chippewa residence; that he had

made prior arrests for narcotics activities on Chippewa Street itself; and that he

was aware of a shooting on the block where the residence was located. Looking

at the evidence on the whole, even in the light most favorable to Tuggle, we

conclude that the district court clearly erred in finding that Wilkinson provided

no evidence that this was a high crime neighborhood. Moreover, rather than

ignoring the criminal nature of the neighborhood in its Terry analysis, the

district court should have recognized, at a minimum, that Wilkinson was aware

that the neighborhood was once regarded as “high crime.”1 See, e.g., United

States v. Beck, 602 F.2d 726, 729 (5th Cir. 1979) (considering that the officer was

conscious of the neighborhood’s high-crime characteristics along with the fact

that “there was no evidence of recent crimes in the neighborhood” in conducting

a totality of the circumstances analysis for reasonable suspicion). Still, as

previously stated, mere presence in a high crime area, without more, will not

create reasonable suspicion for a Terry stop and frisk. See Brown v. Texas, 443

U.S. 47, 52 (1979).

Wilkinson also testified that after calling for back-up and returning to the

residence with marked police vehicles, he noticed a car stopped with its engine

running in front of the residence, obstructing his path down Chippewa Street.

Tuggle was leaning into the driver’s side window at that time. Wilkinson

averred that Tuggle’s posture beside the stopped car was consistent with a

street-level drug transaction. Although the district court accepted Wilkinson’s

factual depiction of the scene, it discounted the testimony regarding a narcotics

transaction because Wilkinson failed to follow up with Gewalt, the officer who

pursued the vehicle that fled the scene. The government argues that such an

1

We note that even if Wilkinson had been aware that arrests in the area had recently

decreased, his suspicions of continuing criminal activity there were confirmed when he

determined that one of the cars parked at the residence was in fact stolen.

10

No. 07-30814

inquiry is not legally relevant because a finding of reasonable suspicion does not

depend on facts revealed only after a stop has occurred. See, e.g., United States

v. Espinoza-Seanez, 862 F.2d 526, 533 (5th Cir. 1988) (explaining that

information gathered after a stop cannot be used to justify the stop); United

States v. Frisbie, 550 F.2d 335, 338 (5th Cir. 1977) (“An observation made after

and caused by a stop cannot be bootstrapped into grounds for reasonable

suspicion warranting the stop.”). However, the district court was not attempting

to justify the stop by determining whether the vehicle was in fact cited for a

narcotics offense. Instead, the district court found it less likely that Wilkinson

actually believed a narcotics transaction was being conducted based on his

failure to talk to Gewalt and discover the fate of the vehicle that sped away.

Nonetheless, the district court’s analysis on this point is flawed for two

reasons. First, there was no need for Wilkinson to ask Gewalt what happened

in light of Wilkinson’s testimony that Gewalt returned to the Chippewa location

within “just a couple of minutes” and that, as he understood, “there was nothing

to the stop that [Gewalt] had made.” Second, and more importantly, what

Wilkinson subjectively thought is not the relevant inquiry—reasonable suspicion

must be judged against an objective standard. See Rideau, 969 F.2d at 1574 (en

banc) (“The officer’s state of mind, or his stated justification for his actions, is not

the focus of our inquiry.”) (emphasis added). “As long as all the facts and

circumstances, viewed objectively, support the officer’s decisions, the Fourth

Amendment is satisfied.” Id. Because we conclude that the other specific and

articulable facts presented, viewed objectively and as a whole, created enough

reasonable suspicion for the stop, it is unnecessary for us to determine whether

an experienced officer, such as Wilkinson, would have reasonably suspected

11

No. 07-30814

criminal activity, or more specifically a narcotics transaction, solely from

Tuggle’s interaction with the driver of the stopped car.2

On that note, we turn our attention to Wilkinson’s testimony that upon the

officers’ arrival in marked police cruisers, the car running idle in the roadway

“sped off,” and Tuggle similarly turned and briskly walked into the yard of the

residence. Again, the district court accepted the validity of these observations,

but suggested in its Terry analysis that because Tuggle did not run from the

police, it was unreasonable for the officers to believe that he was intentionally

evading them. However, the defendant does not have to run away for his

behavior to be considered unprovoked flight. See, e.g., United States v. Gordon,

231 F.3d 750, 757 (11th Cir. 2000) (“Obviously the speed of the suspect’s

movements may be relevant in the totality of the circumstances, but the fact that

the suspect walked very quickly, as opposed to ran, away from the spot where

he was sighted by police does not itself change the analysis where it is evident

from the circumstances that he was attempting to flee upon sighting the

police.”). Indeed, the fact that the vehicle had just sped off makes it objectively

more reasonable to assume that Tuggle was also trying to flee from the police

when he immediately thereafter turned and briskly walked away from the

officers. Further, even if we were to accept Tuggle’s argument that he was not

“in flight,” the flight of the vehicle, into which Tuggle had been leaning, provides

support for the officers’ suspicion that he was involved in some kind of

wrongdoing. Cf. United States v. Newman, 472 F.3d 233, 237 (5th Cir. 2006)

(“While the fact that a man dashed out of the house, by itself, is not enough to

create probable cause to search the house, . . . it is among the relevant

contextual considerations in the probable cause analysis.”); see also United

2

Because we find it unnecessary to consider the officers’ inference of narcotics

trafficking, we do not address Tuggle’s argument that because Wilkinson did not include the

purported narcotics transaction in his police report, his testimony on this subject should not

be credited.

12

No. 07-30814

States v. Miles, 275 F.3d 1078, No. 00-11425, 2001 WL 1465241, at *3 (5th Cir.

2001) (unpublished) (“Although [the defendant] was not the one who fled, the

flight of a person standing near his automobile provided further reason to

support the Officers’ suspicion of [the defendant’s] involvement.”).

That suspicion was further heightened by Tuggle’s next move—traveling

ten to fifteen feet up into the yard of the Chippewa residence, directly toward the

stolen car. The district court concluded otherwise based on a clearly erroneous

view of the facts presented. Specifically, the district court presumed that

anybody walking in that area would be approaching the stolen car due to the

lack of sidewalks on Chippewa Street. That finding is inconsistent with the only

evidence provided on that subject at the hearing. Wilkinson unambiguously

indicated that Tuggle proceeded into the yard toward the parked stolen car and

not parallel to the street in the following colloquy:

Q Wouldn’t anybody walking down that street have

to walk towards those vehicles if they were on

that side of the street?

A No, they wouldn’t have to walk up into the yard.

Q And how far into the yard did [Tuggle] go?

A Ten or fifteen feet

Q How close was that to the [stolen] car?

A About fifteen feet. The cars were about thirty

feet from the roadway.

From this observation alone, the officers reasonably could have inferred that

Tuggle was the Chippewa resident’s boyfriend—the boyfriend suspected in the

auto-theft ring and of whom the officers had no physical description.

13

No. 07-30814

Consequently, we disagree with the district court’s analysis and conclude

that the totality of the circumstances—(1) that the officers were conscious of the

high crime characteristics of the neighborhood in question, including a shooting

on that particular block; (2) that the Chippewa residence had been identified as

the storage location for cars stolen from the airport; (3) that the unidentified

boyfriend of the woman living at the residence was a suspect in that auto-theft

operation; (4) that one of the cars parked in the yard of the Chippewa residence

was confirmed stolen; (5) that Tuggle was observed leaning into the driver’s side

window of an idle vehicle blocking the roadway in front of the residence; (6) that

said vehicle sped away, as if in flight, on the police officers’ arrival; (7) that

Tuggle correspondingly walked briskly away from the officers; and (8) that

Tuggle proceeded ten to fifteen feet toward the stolen car in the yard—would

warrant an officer of reasonable caution in his belief that criminal activity was

afoot, and that the initial action taken, commanding Tuggle to return to the

street for questioning, was appropriate.3

B.

Our next task is to assess the reasonableness of the officers’ subsequent

frisk of Tuggle. On that point, the district court found “no evidence at all to

indicate that the officers had a reasonable belief that they were dealing with an

armed individual.” We disagree. As Wilkinson testified, the officers proceeded

3

Tuggle relies on United States v. Williams, 11 F. App’x 842, 843 (9th Cir. 2001)

(unpublished), for the proposition that police are not entitled under the guise of Terry to stop

virtually any person who happens to be in the vicinity of a crime scene. In that case, the officer

stopped the defendant “purportedly because he was within a block of a shooting.” Id. The

officer did not have a description of the shooting suspect, other than the fact that he fled the

scene on a bicycle, and the Ninth Circuit noted that the defendant was merely jogging at the

time. Id. Thus, the Williams court determined that there was no reasonable suspicion for a

Terry stop. Id. Tuggle’s case is distinguishable. Tuggle was located directly in front of the

Chippewa residence, or crime scene, not a block away; he tried to hurriedly retreat upon the

officers’ arrival; and, further, he walked directly up into the yard of the Chippewa residence

toward the stolen vehicle that the officers were there to recover. Tuggle was not merely in the

vicinity of another’s wrongdoing. Rather, his actions raised suspicion that he was the one

engaged in the wrongdoing. Thus, this authority is unavailing.

14

No. 07-30814

to the Chippewa residence to investigate an auto-theft ring that was suspected

of stealing fifty to sixty vehicles from the airport. In conjunction with the

totality of the other factors, the officers here could have reasonably deduced from

such a large-scale operation, which successfully lifted numerous vehicles from

a secure airport, that those involved were likely sophisticated and dangerous

criminals. Thus, when Tuggle’s conduct reasonably suggested that he might be

part of that auto-theft ring, the officers were justified in fearing for their safety.

Further, their fear was enhanced, rather than dispelled, by Tuggle’s “very

nervous” and “shak[y]” demeanor as he returned to the street for questioning.

On this evidence, we conclude that a limited protective search for concealed

weapons was supported by a reasonable belief that Tuggle might be armed and

presently dangerous. See Michelletti, 13 F.3d at 840–41 (“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.” (quoting Terry, 392 U.S. at 27) (emphasis added)).

Tuggle argues that his “mere propinquity to others independently

suspected of criminal activity” does not, without more, give rise to reasonable

suspicion to search his person. See United States v. Cole, 628 F.2d 897, 899 (5th

Cir. 1980) (internal quotation marks omitted). We do not disagree, but note that

here there were additional reasonable grounds which supported a frisk. The

officers did not rely solely on Tuggle’s presence in front of the Chippewa

residence as the basis for the search, but also on their observations of the car

fleeing when they arrived on the scene, and Tuggle similarly attempting to evade

them by heading ten to fifteen feet up into the yard of the residence, toward the

stolen vehicle. These circumstances, combined with Tuggle’s nervous and shaky

demeanor, objectively provided enough reasonable suspicion for the officers to

assure their protection and conduct a patdown for weapons.

15

No. 07-30814

Moreover, even though each case involving the reasonableness of a Terry

stop and frisk turns on its own facts, Michelletti, 13 F.3d at 844, an examination

of two of our en banc cases, Rideau and Michelletti, as well as Terry itself,

further bolsters our decision here since their facts establish no greater degree of

suspicious behavior than we have found in Tuggle’s case. In Rideau, the

defendant, who the frisking officer suspected was drunk, was standing in the

road at night in a high crime area. 969 F.2d at 1573. When the officer

approached and asked the defendant’s name, he appeared nervous and

“critically, backed away.” Id. at 1575. This court determined that it was not

unreasonable under these circumstances for the officer to have feared that the

defendant was moving back to give himself time and space to draw a weapon.

Id. Accordingly, we concluded that it was not then unreasonable for the officer

to pat the defendant’s front pants pocket to determine whether he had a gun.

Id.

Likewise, in Michelletti, the defendant who was frisked had barged out of

the back door of a bar at closing time with his right hand tucked in his pants

pocket and his left hand cupping a can of beer and approached the officer and a

group of individuals the officer was about to question. 13 F.3d at 839–40. Even

though the officer had testified during the suppression hearing that before the

patdown, he had no specific reason to believe the defendant was armed, the en

banc court still held that the officer’s frisk was supported by a reasonable

concern for danger because the circumstances surrounding the

encounter—closing time at a bar, the size of the group of onlookers, and the

possibility that the defendant was inebriated—signaled a need for caution. Id.

at 842–43.

And finally, in Terry itself, the police officer had merely observed, during

daylight hours, two individuals pacing back and forth in front of a store, peering

into the window and periodically conferring. 392 U.S. at 5–6, 22–23. In light of

16

No. 07-30814

the officer’s experience, the Supreme Court determined that it was reasonable

for him to infer that the men were contemplating a daylight robbery, which

would likely involve the use of weapons. Id. at 27–28. Thus, the Court held that

the limited frisk for weapons, even after the men had departed the original

scene, did not violate the Fourth Amendment. Id. at 28–29. Terry, Rideau, and

Michelletti reveal the courts’ willingness to defer to police officers’ seasoned

judgments and to permit them to “tak[e] reasonable steps to ensure their safety

when they have legitimately detained an individual.” Rideau, 969 F.2d at 1575;

see also Holloway, 962 F.2d at 459 (“Factors that ordinarily constitute innocent

behavior may provide a composite picture sufficient to raise reasonable suspicion

in the minds of experienced officers . . . .”) (footnote omitted). Because we cannot

say that the articulable facts in this case are sufficiently less suspicious than

those recounted above, we conclude that the patdown for weapons here did not

violate the Fourth Amendment’s proscription on unreasonable searches.4

IV.

For the foregoing reasons, we REVERSE the district court’s order

suppressing the seized firearm and REMAND for further proceedings.

4

The government also asserts that the officers’ inference that Tuggle was conducting

a street-level narcotics transaction supports their reasonable belief that Tuggle might have

been armed and dangerous. See Ornelas, 517 U.S. at 700 (“[Supreme Court] cases have

recognized that a police officer may draw inferences based on his own experience in deciding

whether probable cause exists.”) (citing as an example United States v. Ortiz, 422 U.S. 891, 897

(1975)); see also, e.g., United States v. Coleman, 969 F.2d 126, 131 n.20 (5th Cir. 1992)

(“Weapons and violence are frequently associated with drug transactions, of course.”); United

States v. Dixon, 132 F.3d 192, 197 (5th Cir. 1997) (“This Circuit has explicitly recognized that

firearms are tools of the trade of those engaged in illegal drug activities . . . .” (citations and

internal quotation marks omitted)). Because we conclude that the other articulable facts and

inferences legitimately justify the officers’ patdown, it is unnecessary to address this assertion.

17