Unpublished Disposition, 889 F.2d 1097 (9th Cir. 1987)

MEMORANDUM^* 

Unarmed Federal Security Officers found the appellant, Michael Riley, trespassing on a federal facility. Riley was indicted on counts of possession of an unregistered firearm, of possession of a firearm with an obliterated serial number, and of being a felon in possession of a firearm in violation of 26 U.S.C. §§ 5861(d), (h), 5871, and 18 U.S.C. § 922(g) (1). Following the district court's denial of his motion to suppress the weapons, Riley entered a conditional plea of guilty to all three counts of the indictment, reserving the right to appeal the court's denial of the motion to suppress. On appeal Riley argues that (1) he was subjected to an unjustified weapons pat-down; (2) his handcuffing was unreasonable; (3) his arrest was not supported by probable cause; and (4) the handgun, shotgun, and pipebomb seized by the officers were fruits of an unconstitutional search.

BACKGROUND

On the morning of September 26, 1987, Veterans Administration Police Officer Anthony Slaughter was patrolling the grounds of the West Los Angeles Veterans Administration Center. At approximately 8:30 a.m., he observed the appellant, Michael Riley, behind a storage shed that was located about 100 yards beyond the perimeter of the facility. Riley appeared to be asleep in a sleeping bag. Officer Slaughter radioed for assistance, drove to within twelve feet of the subject, got out of the vehicle, and called to Riley. Riley sat up and Slaughter asked Riley to identify himself. Officer Wanda Newbell arrived during the time that Slaughter was questioning Riley and stood next to Slaughter. As the questioning progressed, Riley had his right hand in the right-hand pocket of his coat and began to back away from Slaughter. A screwdriver fell from the coat, and Slaughter decided to conduct a weapons "pat-down" of Riley. When Slaughter attempted the pat-down, Riley suddenly tried to move quickly around the officers in an attempt to reach the sleeping bag. The two officers then subdued and handcuffed Riley.

Slaughter continued the pat-down. Riley's right coat pocket contained a loaded .38 caliber Derringer with an obliterated serial number; his left coat pocket contained a number of .38 caliber bullets. Officer Slaughter next searched the sleeping bag for which Riley had been reaching; it contained a loaded twelve-gauged shotgun with a sawed-off barrel and an obliterated serial number. The weapon was enclosed in a cardboard tube. At this point, Slaughter advised Riley of his rights and placed him under arrest for possession of concealed weapons. Slaughter then searched a tote bag next to the sleeping bag. The tote bag contained an explosive device constructed of a twelve-inch length of pipe and two boxes of .38 caliber cartridges.

DISCUSSION

" [A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22 (1968). A brief police detention of such a person may be permissible when based upon an officer's reasonable suspicion that "criminal activity is afoot." Id. at 30. Reasonable suspicion exists when an officer determines, "on the basis of his experience and from particular objective criteria," that the person to be detained "may have committed or is about to commit a crime." United States v. Huberts, 637 F.2d 630, 635 (9th Cir. 1980). Law enforcement officers possessed reasonable suspicion of criminal behavior when they encountered Riley, a possible trespasser on federal property. The circumstances of this case provided sufficient justification for a Terry stop.

Riley's unauthorized presence on federal property, coupled with his apparent attempt to grab a screwdriver, provided sufficient justification for the officers to pat Riley down. A pat-down is justified if a reasonably prudent person in the same circumstances as the officers would have believed that his or her safety, or the safety of others, was endangered. United States v. Thomas, 844 F.2d 678, 683 (9th Cir. 1988). The pat-down revealed a loaded pistol in Riley's pocket and constituted probable cause for his arrest. United States v. Greene, 783 F.2d 1364, 1368 (9th Cir.), cert. denied, 476 U.S. 1185 (1986).

The officers' arrest of Riley occurred when they placed him, handcuffed, in their patrol car. The officers' search of Riley's sleeping bag and tote bag was a valid search incident to a valid arrest. See United States v. Andersson, 813 F.2d 1450, 1455-1456 (9th Cir. 1987). " [T]he agents could search both ... [the defendant] and the immediate area, including containers, as a search incident to arrest, as long as the search of the suitcase occurred at about the same time as the arrest." Id. at 1456.

CONCLUSION

The officers possessed reasonable suspicion to perform a Terry stop of the appellant, sufficient concerns for their safety to pat-down and handcuff him, and probable cause to arrest him after the pat-down. The officers' search of the sleeping bag and tote bag was a valid search incident to the arrest.

AFFIRMED.