Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1990)

MEMORANDUM^**

Karol Peter Napiorkowski and his codefendant Jeffrey Ray Pennock were charged with conspiracy to distribute cocaine, 21 U.S.C. § 846, and possession of more than 500 grams of cocaine with the intent to distribute, 21 U.S.C. § 841(a) (1). Napiorkowski pleaded guilty to both counts after his motion to suppress the evidence which was discovered during a weapons pat down search was denied.

Napiorkowski argues that the search was unlawful because there was no basis for the officers to believe Napiorkowski was armed or dangerous, the object under Napiorkowski's sweater did not feel like a weapon and that the actual purpose of the search was to search Napiorkowski for the package previously seen in the hotel room. We affirm.

FACTS

On March 6, 1990, United States Customs officers were alerted by the Blaine Police Department of circumstances surrounding the renting of a motel room for two nights. The management of the hotel contacted the Blaine Police Department informing them that a woman had checked into a hotel room for two nights. That morning, the maid had entered the room and noticed that the room appeared not to have been used. The maid noticed a bulge under one of the pillows and found two brick-like packages with squared corners and edges wrapped in heavy plastic and bound with brown plastic tape.

The woman renter gave an address which turned out not to exist. She paid in cash. The automobile license number she gave was registered to another person. Armed with this information, the police contacted the local prosecuting attorney who rejected their request for a search warrant for the room.

Customs officers set up surveillance on the room. At 7:12 p.m., the agents observed Napiorkowski and Pennock walk across the parking lot to the room. The two had a brief discussion at the top of the stairs after which Pennock continued to the room. Napiorkowski was seen tossing something to Pennock. Napiorkowski returned to a car to get something from the trunk. Napiorkowski put the item in his pocket and went into the hotel room. A computer border records search revealed the car had entered the United States at 7:09 p.m.

At 7:22 p.m., Pennock exited the room, and went to the car. He opened the trunk then returned to the room. At 7:30, both people left the room, got into the car and drove off.

Customs agents kept the car under surveillance and had a Blaine police officer stop it several blocks later. The officer testified that the passenger, Pennock, began to move about quite a bit after the officer activated his light bar. When the officer approached the car, he noticed that Napiorkowski, the driver, was quite nervous and that the pupils of his eyes did not respond to the change in the light. Napiorkowski denied that he had consumed any alcoholic beverages. However, the officer escorted him to the rear of the vehicle to perform a few field sobriety tests. Napiorkowski passed the tests, and the officer asked him to take a seat and checked for warrants.

At this time, the customs officials and several other officers arrived on the scene. Custom Agent Martin interviewed Pennock, who stated that the two had come down to purchase gas and had not stopped anywhere nor picked anything up.

Martin also interviewed Napiorkowski who denied purchasing or acquiring anything after entering the United States. Napiorkowski offered the agents an inspection of the trunk of the car. Customs agent Rydell found a small shopping bag with a roll of soft, white tape. Rydell asked if he could search the back seat area. Napiorkowski agreed. After the search of the back seat, Rydell asked if he could search the front seat. Napiorkowski agreed and got out of the car.

Upon exiting the car, the officers noticed what appeared to be a balloon in the pocket of his jacket. Officer Martin was concerned that this might be a narcotics body carry situation. Rydell asked Napiorkowski to empty his pockets. Martin asked Napiorkowski to take off his jacket and place his hands on the hood of the vehicle. He observed that Napiorkowski was a large man and testified that he was concerned because there were a number of officers in the area.

When Napiorkowski placed his hands on the hood of the car, Officer Martin observed a large bulge under Napiorkowski's sweater in the middle of his back. Martin testified he was surprised to see this bulge and immediately put his hand on the bulge. It felt long and hard, like a package. Martin then lifted the sweater and found the cocaine Napiorkowski sought to suppress. Martin testified that the bulge felt like a package but it could have been a weapon. Martin stated that the events were spontaneous.

DISCUSSION

" [O]fficers may conduct a search for weapons during the limited detention authorized by Terry v. Ohio, 392 U.S. 1 [ (1968) ]." United States v. Salas, 879 F.2d 530, 535 (9th Cir.) cert. denied --- U.S. ----, 110 S. Ct. 507 (1989). The standard for justifying a frisk is "whether a reasonably prudent person in the circumstances would be warranted in the belief that his or her safety or that of others was in danger." United States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988). We determine whether there was "a founded suspicion for a pat-down search based on a totality of the circumstances." Salas, 879 F.2d at 535. If the officer "has reason to believe that the suspect is armed and dangerous, the officer may conduct a limited weapons search." Thomas, 863 F.2d at 628.

Napiorkowski first argues that none of the witnesses articulated any specific facts upon which to base a suspicion that Napiorkowski might be armed. Napiorkowski was cooperative during his entire encounter with the police.

While Napiorkowski was cooperative, the officers were aware that suspicious activities that indicated smuggling were taking place. They derived this suspicion from the hotel management's information and their own surveillance. Further, Martin testified that Napiorkowski stated that he had not stopped anywhere during his brief visit to the United States. This was a lie and Martin knew it. Martin also testified that he noticed balloons in Napiorkowski's pocket, which indicated to him that this might be a narcotics body carry situation. Martin thus had reason to believe Napiorkowski was involved in the drug trade. Martin stated that he had previously had encounters with drug dealers who carried shotguns in their backs.

It is not unreasonable to assume that a dealer in narcotics might be armed. Salas, 879 F.2d at 535. Martin testified that Napiorkowski was a large man and that Martin's motivation for conducting the search was to protect the several police officers surrounding the area. Martin thus had specific facts on which to base a belief that Napiorkowski was armed and a danger to Martin and his fellow officers.

Napiorkowski next argues that Martin had no basis for lifting Napiorkowski's sweater. We reject this argument. "Terry does not in terms limit a weapons search to a so-called 'pat down' search. Any limited intrusion designed to discover guns, knives, clubs or other instruments of assault are permissible. The raising of the shirt in the instant case is well within the boundaries established by Terry." United States v. Hill, 545 F.2d 1191, 1193 (9th Cir. 1976).

Napiorkowski finally argues that the weapons pat down search was a ruse to discover the contraband the officers knew was in the hotel room. He argues that the fact that the officer who administered the sobriety test failed to pat him down indicates that the reasonably prudent person would not have believed Napiorkowski was armed and dangerous. Napiorkowski argues that the timing of the search after the consent searches of the trunk and the back seat indicates that there was no reasonable fear on the part of the officers.

However, the officer need not be absolutely certain that the individual he is dealing with is armed and dangerous. Salas, 879 F.2d at 535. The test is whether the reasonably prudent person in the circumstances would be warranted in the belief that his safety of that of others was in danger. Id. The officer's suspicion must have been based on specific, reasonable inferences which the police officer is entitled to draw upon. Id. Martin's conduct was based the specific facts outlined in the hotel management's tip, the surveillance, the lie, the presence of the balloons, Napiorkowski's size, and the fear for the safety of himself and other officers present in the area from the suspected drug dealer.

Agent Martin's search of Napiorkowski did not violate the fourth amendment restrictions on searches and was therefore lawful.

AFFIRMED.

FLETCHER, Circuit Judge, dissenting:

I respectfully dissent. The search of the defendant's person was a search for contraband, not a pat-down to assure that he had no weapons on him. Had the sequence of events been different, I could place some credence in the government's suggestion that the officers feared for their safety.

There are no facts suggesting that even if Napiorkowski had been armed he posed a danger to the officers. By the time of the frisk Napiorkowski had been detained ten to fifteen minutes. He had been fully cooperative and polite. He had been interviewed by two law enforcement officers. He had been out of the car to perform a field sobriety test and had been returned to the vehicle. He had given permission to search the trunk. He had given permission to search the back seat, and he had given permission to search the driver seat.

At the initial stages of the stop, when only a single officer was present, no frisk for the officer's safety had been conducted. It was not until several officers were on the scene and Napiorkowski had given his full cooperation and allowed his car to be searched that the officers conducted the frisk.

In arguing the reasonableness of the belief that Napiorkowski might be armed, the government relied on the proposition, recently reaffirmed in United States v. Salas, 879 F.2d at 535, that narcotics dealers might be armed. Unlike Salas, however, none of the agents testified that they had any specific belief that narcotics would be found. Both agents testified that following the meeting with the hotel personnel, that they believed that they may have been dealing with a currency violation.

What the officers were looking for was contraband, not weapons. They had found nothing in the trunk or the body of the car. They wanted to find whatever it was that had come out of the motel room. They did. Unfortunately, they found it without consent to search, without probable cause, without a warrant, and without a legitimate excuse to pat down for a weapon. Had the pat-down been done by the lone stopping officer immediately upon the stop, I could be persuaded that the search was for a weapon and done with justification. The fruit does not justify the illegal plucking.

I would reverse.