Appeal from the United States District Court for the District of Columbia (No. 02cr00024-01)
Before: Sentelle, Tatel, and Roberts, Circuit Judges.
The opinion of the court was delivered by: Roberts, Circuit Judge
Argued September 10, 2004
Anthony Holmes appeals from the district court's denial of his motion to suppress evidence seized during a pat-down frisk and a subsequent search incident to arrest. During the pat-down frisk an officer felt a hard, square object in Holmes' jacket pocket. Holmes identified the object as a scale, which it turned out to be when the officer removed it. When the officer proceeded with the frisk, Holmes assaulted him. Once Holmes had been subdued, the police searched him and found cocaine on his person. They also found a semi-automatic gun and ammunition beneath the driver's seat of his car. Holmes argues that the officers violated the Fourth Amendment by removing the scale and that this tainted the subsequent seizure of the cocaine, gun, and ammunition. He also argues that the search of the car exceeded the legitimate scope of a search incident to arrest. We find that the scale was seized pursuant to a lawful protective frisk under Terry v. Ohio, 392 U.S. 1 (1968), and that the other evidence was properly seized pursuant to a search incident to Holmes' arrest for assault.
At approximately 9:30 p.m. on December 21, 2001, officers Dereck Phillip and Marvin Washington of the Metropolitan Police Department observed a car traveling at a high rate of speed, about 20 miles above the posted speed limit, on Good Hope Road in southeast Washington, D.C. Officer Phillip pulled up behind the vehicle, which slowed to a speed of 35 miles per hour, still 10 miles per hour above the speed limit. As he followed the vehicle, Phillip observed the driver --Anthony Holmes -- continually dipping his right shoulder, as if he were reaching under the driver's seat. To Phillip, it seemed as if Holmes were "retrieving a weapon from under his seat or ... placing a weapon under his seat." Suppression Hr'g Tr. at 8. Phillip activated his emergency lights. Holmes "was very hesitant ... pulling over," but finally did so. Id. at 7.
Phillip and his partner exited their patrol car and approached the vehicle. They noticed that Holmes was looking nervously over his left shoulder and moving around inside the car. As a safety precaution, the officers approached the passenger side of the car -- where Holmes was not expecting them -- and again observed Holmes reaching beneath his seat and toward his waist. Phillip knocked on the passenger side window, and Holmes rolled the automatic window down.
As the window opened, Phillip detected a strong odor of alcohol. He asked Holmes if he had been drinking. Holmes replied that he had, and that he was coming from a liquor store. The officers moved to the driver's side and asked Holmes to exit the vehicle. Around this time a third police officer, Victor Jordan, arrived at the scene.
As he got out of the car, Holmes -- who was wearing a large parka -- reached several times toward the right rear pocket of his pants. Phillip told him to stop: Holmes' reaching made the officer "awfully nervous," given that Phillip had observed Holmes reaching under the driver's seat in the course of pulling him over. Id. at 11-12. As Phillip would later explain, he was "[c]oncerned that [Holmes] could be possibly armed." Id. at 12. "It was just a very awkward moment. It was just a suspicious manner. It just didn't feel comfortable at all.... He had a huge black and gray jacket on with [a] numerous amount of pockets. I couldn't reveal if he had a weapon or anything." Trial Tr. at 183. The officer "felt a threat level.... I assume[d] that he was easily armed." Id. at 207.
After briefly complying with the officer's directive, Holmes once again began to reach for his pocket. At this point, while Holmes and the officers were standing at the trunk of the car, Phillip told Holmes that he was going to pat him down. Phillip later testified that he decided on this course because "I felt that he was probably armed." Suppression Hr'g Tr. at 14. Holmes placed his hands on the trunk and allowed Phillip to proceed. During the pat-down, Phillip detected a "hard," "square object" in the front left pocket of Holmes' parka. Id. at 14. He asked Holmes what the object was, and Holmes said it was a scale. Later, Phillip would testify that, on hearing Holmes' answer, he "just thought [the object] was a scale," and did not think it was a firearm. Id. at 14, 32. Phillip removed the object and verified that it was a digital pocket scale. He also noticed a white residue on the scale. Phillip asked Holmes if there was anything else the officers should know about, and Holmes said there was not. Id. at 15.
Phillip then resumed the pat-down. Holmes once again moved his right hand toward his back pocket. The officers again advised him to stop, but this time Holmes responded by striking Phillip with his left elbow. A melee ensued, during which Holmes "threw several punches and kicks" at the officers. Id. at 16. Following a long struggle, Holmes was restrained and placed in handcuffs.
After they subdued him, the officers searched Holmes' car and found beneath the driver's seat a loaded nine millimeter semi-automatic gun and a bag with 14 rounds of ammunition. They also searched Holmes himself and found 58 empty Ziploc bags and a plastic bag containing crack cocaine.
Officer Jordan drove Holmes to D.C. General Hospital for treatment of minor injuries sustained in the fight. When they arrived at the hospital, Jordan discovered another quantity of cocaine on the floor of the transport van in the area where Holmes had been seated. Jordan would testify that Holmes had been the van's only occupant and that pursuant to established procedure Jordan had inspected the van prior to placing Holmes in it and had not observed anything on the floor. Jordan recovered a third quantity of cocaine from Holmes while ...