Unpublished Disposition, 923 F.2d 864 (9th Cir. 1989)

MEMORANDUM^** 

Francisco Saravia-Vidana (Saravia-Vidana) appeals from the district court's order denying his motion to suppress. He seeks reversal on the ground that California Highway Patrol Officer Steven Hablitzel conducted an illegal pat-down search for weapons. We disagree and affirm.

PERTINENT FACTS

On January 29, 1989, while driving on Interstate 5, Officer Hablitzel observed that the left front marker lamp was not working and a Mexican flag which obstructed the driver's view was hanging from the rear view mirror of Saravia-Vidana's vehicle in violation of California Vehicle Code Secs. 24252(a) and 26708(a). Officer Hablitzel pulled behind Saravia-Vidana's car and signaled him to stop.

Saravia-Vidana told Officer Hablitzel that he did not have a driver's license and that he was traveling from Fairfield, California to Salem, Oregon. During this conversation, Officer Hablitzel saw a wooden knife handle on the floor of the driver's side of the automobile at Saravia-Vidana's feet.

Officer Hablitzel returned to his police car and used his computer to ascertain whether Saravia-Vidana had a valid operator's license. The officer was informed that Saravia-Vidana's operator's license had been suspended in Oregon. Driving without a driver's license is a misdemeanor under California Vehicle Code Sec. 12500(a). Officer Hablitzel concluded that he could not allow Saravia-Vidana to drive the car because he did not possess a driver's license. Because Saravia-Vidana was not with anyone else who could drive the car off the freeway, Officer Hablitzel called for a tow-truck. Officer Hablitzel testified that California Highway Patrol policy prohibits pedestrians from walking off a freeway. Officer Hablitzel further testified that Saravia-Vidana would have to walk approximately a mile on the freeway to the nearest exit. Thus, Officer Hablitzel was required to give Saravia-Vidana a ride off the freeway to the next town. Officer Hablitzel testified that CHP policy requires a pat-down search of individuals who are going to ride next to the officer in the police car.

Officer Hablitzel patted down Saravia-Vidana's outer clothing to see whether he had any weapons. As officer Hablitzel began to pat around Saravia-Vidana's knees, Saravia-Vidana violently pushed the officer's hands away. Officer Hablitzel stood up, put his hand on Saravia-Vidana's chest and said, "Hold it." Officer Hablitzel resumed his pat down, and he felt a bulky object in Saravia-Vidana's left boot which he thought was the handle of the knife which he had seen earlier. Officer Hablitzel lifted up Saravia-Vidana's pants leg and found a bag containing white powder. Officer Hablitzel believed that it contained cocaine and he arrested Saravia-Vidana. As Officer Hablitzel began to search Saravia-Vidana's car, a second officer arrived and joined him in the search. They found two kilograms of cocaine in the trunk.

Saravia-Vidana was charged with a violation of 21 U.S.C. § 841(a) (1), possession with intent to distribute approximately two kilograms of cocaine. Saravia-Vidana's motion to suppress evidence was denied by the district court. Saravia-Vidana entered a conditional plea of guilty reserving the right to appeal the denial of the suppression motion. The district court sentenced Saravia-Vidana to a term of 60 months imprisonment with a four-year term of supervised release.

DISCUSSION

Saravia-Vidana contends that Officer Hablitzel did not have a reasonable belief that his safety was in danger, and therefore, the pat-down search for weapons was illegal. He also alleges that the narcotics found in Saravia-Vidana's boot and in his car should have been suppressed.

Generally, we review motions to suppress de novo. United States v. Limatoc, 807 F.2d 792, 794 (9th Cir. 1987) (citing United States v. Analrade, 784 F.2d 1431, 1433 (9th Cir. 1986)). "While findings of fact made at a suppression hearing are upheld unless clearly erroneous, the ultimate issue of the lawfulness of a search presents a mixed question of law and fact that is reviewed de novo." Limatoc, 807 F.2d at 794 (citing United States v. Feldman, 788 F.2d 544, 550 (9th Cir. 1986)).

I. REASONABLE BELIEF THAT SAFETY WAS IN DANGER

The United States Supreme Court has held that a police officer is authorized to conduct a pat-down search for weapons when the officer has a reasonable belief that his safety is in danger. In Terry v. Ohio, 392 U.S. 1 (1968), the Court held,

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

Id. at 24. The Court stated that " [t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27.

In Adams v. Williams, 407 U.S. 143 (1972), the Court held that if the officer is entitled to make a forcible stop and the officer has reason to believe that the suspect is armed and dangerous, the officer may conduct a limited weapons search. Id. at 146.

In United States v. Brown, 720 F.2d 1059 (9th Cir. 1983), we held that " [t]he officers' belief that there might be weapons present which could endanger their safety was not unreasonable and justified their search for [weapons]." Id. at 1076. In United States v. Hill, 545 F.2d 1191 (9th Cir. 1976), we held that the officer had a reasonable belief that his own safety and that of others was in danger because the officer had reason to suspect that the person under investigation was armed based on a bulge the officer noticed in the person's clothing. Id. at 1193.

In United States v. Abokhai, 829 F.2d 666 (8th Cir. 1987), the Eighth Circuit held that the officers "had reasonable cause to believe that placing [the suspect] in the back seat of the patrol car presented a potential danger to the officers." Id. at 670. The court reasoned that "the close proximity and limited observation of the suspect in the back seat of the patrol car" was a specific and articulable hazard that provided justification for the officers to conduct a pat-down search of the suspect. Id.

In the present case, Officer Hablitzel had a reasonable belief that Saravia-Vidana might be armed. Officer Hablitzel had seen the handle of a knife in Saravia-Vidana's car. Saravia-Vidana had the opportunity to conceal that knife on his person when Officer Hablitzel walked to his police car to check on Saravia-Vidana's driving record. Thus, Officer Hablitzel had reasonable grounds to suspect that Saravia-Vidana might have armed himself. Further, in the instant case, Officer Hablitzel had to transport Saravia-Vidana in his patrol car off the interstate highway. Officer Hablitzel would have to sit beside Saravia-Vidana in the police car. Officer Hablitzel would not have been able to protect himself adequately if Saravia-Vidana attacked the officer while he was engaged in driving the car and observing traffic. Thus, Officer Hablitzel articulated a founded suspicion justifying his conduct in patting down Saravia-Vidana. During the pat down, Saravia-Vidana violently pushed Officer Hablitzel's hands away from his left boot. This action increased the officer's apprehension that Saravia-Vidana might be armed.

Saravia-Vidana argues that because this court found that a pat down was not justified in United States v. Thomas, 844 F.2d 678 (9th Cir. 1988), "upon facts much more serious than those involved in the case at bar," we should conclude that the motion to suppress in the instant matter was improperly denied. Appellant's brief at 7. Our conclusion in Thomas was based on the facts and circumstances known to the officers at the time of the search. As we noted in Thomas, " [t]he scope of the inquiry following a stop and the detention is a fact specific determination." Thomas, 844 F.2d at 628. After a review of the record in Thomas, we concluded that the "facts of this case indicate that the initial investigatory stop provided no basis for the subsequent detention and frisk." Id. We noted in Thomas that there were no circumstances known to the officer that "suggested that either of the counterfeiting suspects was armed and dangerous." Id. at 629.

In the instant matter, Officer Hablitzel saw what appeared to be a weapon in Saravia-Vidana's vehicle prior to the pat down. Saravia-Vidana had the opportunity to conceal that weapon while the officer stepped away to conduct an investigation concerning whether the driver had a valid driver's license. Moreover, Officer Hablitzel was justifiably concerned that he might be attacked with the knife while he was engaged in operating the police vehicle if Saravia-Vidana had concealed the knife on his person. Based on the specific facts presented in this record, Officer Hablitzel had a reasonable basis for his belief that his safety could be endangered if he did not conduct the pat-down search.

The motion to suppress was properly denied.

AFFIRMED.