
USCA1 Opinion

	














                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 96-2124


                                    UNITED STATES,

                                      Appellee,

                                          v.

                                     OMAR GREENE,

                                Defendant, Appellant.

                                 ____________________


                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                           Stahl and Lynch, Circuit Judges.
                                            ______________

                                 ____________________

            Diana L. Maldonado on brief for appellant.
            __________________
            Donald  K.  Stern,  United  States  Attorney,  and  Christopher F.
            _________________                                   ______________
        Bator, Assistant United States Attorney, on brief for appellee.
        _____


                                 ____________________

                                   October 14, 1997
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                 Per  Curiam.   Pursuant to  Fed.  R. Crim.  P. 11(a)(2),
                 ___________

            appellant  Omar Greene entered  a conditional guilty  plea to

            the charge of being a felon in  possession of a firearm.  See
                                                                      ___

            18  U.S.C.   922(g)(1). He now appeals the denial of his pre-

            plea motion to suppress.  For the reasons discussed below, we

            affirm    the  order  denying  the  motion  to  suppress  and

            appellant's conviction.

                                         I. 

                 The following facts are  undisputed.  On the  evening of

            July  10, 1994, Boston police officers Charles Byrne, Michael

            Linsky,  and James Freeman, members of the Anti-Gang Violence

            Unit,  were together  in a  police  vehicle in  Roxbury.   At

            approximately 10:50  p.m., a  taxicab sped  by them  and went

            down  Blue Hill  Avenue.   The officers  pursued the  cab and

            activated their lights  and siren once they had  caught up to

            it.  The cab pulled over  near an intersection that was about

            3/4 of a  mile from the place  the police had first  seen it.

            Officers Linsky and Freeman then approached the driver's side

            of the  cab while officer  Byrne proceeded to its  right rear

            passenger's  side. Appellant was the sole passenger seated in

            the rear of  the cab.  Officer  Byrne saw appellant  turn and

            look at the approaching officers.  

                 When  officer  Byrne  arrived  at the  open  passenger's

            window,   he  heard  appellant  exclaim,  "What  did  I  do?"

            Appellant appeared nervous.   Byrne responded, "Who  said you



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            did anything?"  and shined  his flashlight  in at  appellant.

            Byrne then observed a large  bulge in appellant's right pants

            pocket.   Although he did  not know appellant and  indeed had

            not even heard of him  before that day, officer Byrne thought

            that  the bulge  might  be  a gun  and  decided  that it  was

            necessary  to check to preserve  the officers' safety.  Byrne

            opened the door  of the cab, put  his hand on the  bulge, and

            felt what he thought was a firearm.  He announced this to his

            colleagues and held  appellant's arms  while officer  Freeman

            removed from appellant's pocket a fully loaded semi-automatic

            handgun with one round in the chamber and seven rounds in the

            clip.1  During the course  of these events, appellant made no
                 1

            movements, save  perhaps for  turning his  head when  officer

            Byrne  initially shined  his  light on  him.   Appellant  was

            arrested  and  charged  with  two  state  firearm  offenses.2
                                                                        2

            Ultimately, the state  charges were  dismissed and  appellant

            was charged with violating 18 U.S.C.    922(g).

                 Relying on  the transcript of  officer Byrne's testimony

            at   his  pretrial  detention  hearing,  appellant  moved  to

            suppress the gun and ammunition on the ground that the police




                                
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               1The gun bore an  obliterated serial number and  was later
               1
            found  to  be stolen.    The  record  does not  suggest  that
            appellant was the thief.

               2The cab driver was given a verbal warning and sent on his
               2
            way.

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            lacked reasonable suspicion  to stop and search him.3   After
                                                                3

            the  government  filed  an  opposition,  the  district  court

            entered a  one-sentence  order that  denied  the  appellant's

            motion without  stating its reasons.   Ten months  later, the

            appellant entered a conditional guilty plea and was sentenced

            to  30-months'  imprisonment  and  two  years  of  supervised

            release.   He  now challenges  the  denial of  his motion  to

            suppress.   

                                         II.

                 Ordinarily,  in  reviewing  the denial  of  a  motion to

            suppress, we scan  the district court's findings  of fact for

            clear  error,   while  affording   plenary   review  to   its

            conclusions  of  law,  including determinations  of  probable

            cause and reasonable suspicion.  See, e.g., Ornelas v. United
                                             ___  ____  _______    ______

            States, 116  S. Ct.  1657, 1659-63  (1996); United States  v.
            ______                                      _____________

            Young,  105 F.3d 1,  5 (1st Cir.  1997).  Our  review here is
            _____

            somewhat hampered because the district court's  order denying

            appellant's   motion   to    suppress   gave   no    reasons.

            Nevertheless, an "order denying a motion to suppress is to be

            upheld if any  reasonable view of the  evidence supports it."

            United  States  v.  Lamela,  942  F.2d  100,  102  (1st  Cir.
            ______________      ______

            1991)(internal punctuation  and citations  omitted).   As the


                                
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               3The   motion  to  suppress  also  sought  to  exclude  an
               3
            unspecified  amount of marijuana which was found on appellant
            after he was arrested.  Appellant has not been charged with a
            criminal offense based on this conduct. 

                                         -4-















            essential facts are undisputed and the district court's legal

            conclusions  are subject  to de  novo review,  we may  simply
                                         __  ____

            decide whether  the stop and search of  appellant were valid.

            Cf. United States v. Sepulveda, 102 F.3d 1313, 1315 (1st Cir.
            ___ _____________    _________

            1996)(undertaking  similar  inquiry  where  underpinnings  of

            denial of motion to suppress were somewhat unclear).

                 A reviewing  court evaluating  the reasonableness  of an

            investigative stop must  perform a two-step inquiry.   First,

            the  court must  determine  whether  the  police  action  was

            justified at its inception.  Second, the court must determine

            whether the action  taken was reasonably related  in scope to

            the  circumstances which justified the intrusion.  See, e.g.,
                                                               ___  ____

            United States v. Young, 105 F.3d 1, 6 (1st Cir. 1997); United
            _____________    _____                                 ______

            States  v.  Kimball,  25  F.3d 1,  6  (1st  Cir.  1994).   In
            ______      _______

            assessing the reasonableness of a police officer's actions, a

            court  "must consider the totality of the circumstances which

            confronted  the officer  at  the time  of  the stop."  United
                                                                   ______

            States v. Kimball, 25 F.3d at 6.
            ______    _______

                 It is clear that the stop of the speeding cab was valid,

            and  appellant does  not seriously  contend  otherwise.   See
                                                                      ___

            United  State  v.  Moorefield,  111  F.3d  10,  12  (3d  Cir.
            _____________      __________

            1997)(traffic stop  is lawful where police  observe violation

            of traffic  regulations).4  This  case turns  on whether  the
                                     4

                                
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               4Although  appellant  concedes  that   he  was  physically
               4
            stopped as a  result of the stop of the cab, he suggests that
            he was  not legally stopped  because he was only  a passenger

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            ensuing pat-down search of  appellant's person was justified.



                 Appellant argues that  the police were not  justified in

            frisking him because they lacked a particularized  reasonable

            suspicion  directed  at  him.    Since  only  the driver  had

            committed  the traffic violation  and appellant was  only, in

            his  view,  an  "accidental  guest"  of  the  cab,  appellant

            maintains that the police had no reason to suspect him of any

            crime.  Appellant further  asserts  that  where  he  made  no

            movements, the  fact  that  officer  Byrne  saw  a  bulge  in

            appellant's  pants  did  not give  the  officer  a reasonable

            suspicion  to conduct  a  frisk.    In contrast,  relying  on

            Pennsylvania  v.  Mimms,  434 U.S.  106,  111-12  (1977), the
            ____________      _____

            government asserts that  a bulge in the clothing  of a person

            travelling in  a car that  is lawfully stopped for  a traffic

            violation  provides  sufficient grounds  for  the  officer to

            believe   that  the  person  is  armed  and  dangerous,  thus

            justifying a pat-down search.5  
                                         5

                                
            ____________________

            and was not a party to the driver's traffic violation.  "When
            a police officer  effects an investigatory stop of a vehicle,
            all occupants of  that vehicle are subjected to  a seizure as
            ___
            defined by the Fourth Amendment."  United  States v. Kimball,
                                               ______________    _______
            25 F.3d at  5.   See also  United States v.  Robeson, 6  F.3d
                             ___ ____  _____________     _______
            1088, 1091 (5th Cir. 1993)("a  stop results in the seizure of
            the passenger  and the driver  alike").  Thus,  appellant was
            lawfully stopped even though he was only a passenger the cab.


               5In  Pennsylvania v.  Mimms,  434  U.S. at  11  n. 6,  the
               5    ____________     _____
            Supreme Court  held that the  police may order the  driver to
            exit  a  vehicle  lawfully stopped  for  a  traffic violation

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                 Under Terry v. Ohio, 392  U.S. 1, 27 (1968), whether the
                       _____    ____

            pat-down search  of the  appellant was  justified depends  on

            "whether  a reasonably prudent man in the circumstances would

            be warranted  in the belief  that his safety  or that of  the

            others  was in danger."  Accord  United States v. Villanueva,
                                     ______  _____________    __________

            15 F.3d 197,  199 (1st Cir.  1994).  Although  we think it  a

            close  question, we conclude that officer Byrne was warranted

            in his  belief that  the officers' safety  was in  danger and

            that he  was further  warranted in  immediately performing  a

            pat-down of appellant. 

                 To be sure, all the  police knew was that: (1) appellant

            was a passenger in a speeding cab who (2) had glanced back at

            the  officers as they  approached, (3) appeared  nervous, (4)

            asked, "What did I do?" and (5) had a bulge  in the pocket of

            his pants.   Appellant made no  sudden or furtive  movements,

            and  was  not  known  to  officer  Byrne   before  that  day.

            Appellant contends that these observations do not support any
                                                                      ___

            suspicion that he was engaged in criminal activity, let alone

            a  crime  where   a  gun  might  be  present.   We  disagree.

                                
            ____________________

            without violating the  Fourth Amendment.  The  Court recently
            extended  this rule to  passengers.  See  Maryland v. Wilson,
                                                 ___  ________    ______
            117 S. Ct. 882, 886  (1997)("an officer making a traffic stop
            may order passengers to get out of the car pending completion
            of  the stop").  While Mimms also  upheld a pat-down frisk of
                                   _____
            the driver based  solely on the police  officer's observation
            of  a  bulge,  Wilson  did  not  involve  a pat-down  search.
                           ______
            Because other  circumstances were  present in  this case,  we
            need  not decide  whether the  observation  of a  bulge on  a
            passenger of a  vehicle stopped for a  traffic violation will
            alone justify a pat-down of the passenger.    

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            Appellant's  nervousness  and  question could  reasonably  be

            construed   by   a  seasoned   police  officer   as  evincing

            consciousness of guilt.  The  bulge, even if alone not enough

            to support a reasonable suspicion,  was surely a factor to be

            considered with the  others given the widespread  presence of

            guns  on  the   streets  of  Boston.  See  United  States  v.
                                                  ___  ______________

            Villanueva, 15 F.3d at 199  (recognizing the plethora of  gun
            __________

            carrying, particularly  by the young).  And while the officer

            might well have conducted a lesser  intrusion (e.g., by first

            ordering  the appellant  to exit  the cab,  or by  asking him

            whether he was  carrying a gun), it was  not unreasonable for

            him  to  simply proceed  with  a  frisk  where to  have  done

            otherwise under the circumstances may have given appellant an

            opportunity to use  the gun. Cf. United States  v. Young, 105
                                         ___ _____________     _____

            F.3d 1, 7  (1st Cir. 1997)(holding police  officer reasonably

            lunged  at gun of  armed robbery suspect  where lesser action

            may have created risk of harm).6 
                                           6

                 Other courts have upheld pat-down searches of passengers

            who  exhibited  similarly suspicious  behavior.   See,  e.g.,
                                                              ___   ____

            United  States v. Moorefield,  111 F.3d at  13-14 (collecting
            ______________    __________

            cases); United States v. Hassan El, 5 F.3d 726, 731 (4th Cir.
                    _____________    _________

            1993)(upholding  search in  which  officer  grabbed at  bulge

            through open car  window and removed handgun);  United States
                                                            _____________

                                
            ____________________

               6The  fact  that  the  gun  was  found  with  a  round  of
               6
            ammunition  chambered  suggests  that  appellant  was   quite
            prepared to use the weapon.

                                         -8-















            v.   Mitchell,   951   F.2d    1291,   1294-95   (D.C.   Cir.
                 ________

            1991)(upholding pat-down search of passenger who obeyed order

            to  exit  car).   To  be sure,  in  each of  these  cases the

            passengers appeared nervous and engaged in furtive  movements

            which gave the police cause for suspicion.  Appellant made no

            such  movements here.     Nevertheless,  the foregoing  cases

            remain   instructive.    The  fact  that  appellant  made  no

            movements toward the gun did not eliminate the suspicion that

            he drew to himself with his question, particularly in view of

            the  "inordinate risk of  danger to law  enforcement officers

            during traffic  stops...."  United  States v. Baker,  78 F.3d
                                        ______________    _____

            125, 137  (4th  Cir.  1996)(upholding  protective  search  of

            driver who  was subject of  lawful traffic stop  where driver

            exhibited  bulge  that  could  be  made  by  weapon).   Given

            appellant's  nervousness,  his assumption  (evidenced  by his

            question), that he was the object  of the stop, and the bulge

            in   his  pocket,   we  think   the   frisk  was   justified.

            Accordingly, the order denying appellant's motion to suppress

            and the judgment of conviction are affirmed.
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