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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 22, 2004
October 11, 2004
In the
Charles R. Fulbruge III
United States Court of Appeals
Clerk
for the Fifth Circuit
_______________
m 03-10827
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
RICHARD KENNETH WALLEN,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 03-CR-152-ALL-A
_________________________
Before SMITH, WIENER, and PICKERING,
appeal from the suppression order. Finding
Circuit Judges.
error, we reverse and remand.
JERRY E. SMITH, Circuit Judge:
I.
Wallen's vehicle was stopped for speeding
Richard Wallen was charged with posses-
by Officer Bryan Miers. As Miers approached
sion of two firearms that were not registered
Wallen's vehicle, he observed what appeared
to him in the national registry, in violation of
to be two rifles on the passenger side of the
26 U.S.C. § 5861(d). Alleging violation of his
truck. When Miers requested Wallen's license
Fourth Amendment rights, he successfully
and proof of insurance, Wallen responded that
moved to suppress evidence seized from his
he thought they were in his wallet that was
truck. The government takes an interlocutory
somewhere on the passenger side of his truck.

Wallen, who was alone, exited the truck and
en him and discovered that authorities in Dal-
walked around the front of the truck to the
las County had a warrant out for Wallen's ar-
passenger side, which he opened. As Wallen
rest for a traffic violation. Miers exited the
stepped out of the vehicle, Miers noted that he
car, put Wallen in handcuffs, and placed him
was barefoot.
in the backseat of the patrol car. Miers told
Wallen he was placing him in "temporary cus-
After reaching the passenger side, Wallen
tody" until the warrant could be confirmed
started searching through the clutter of items,
because of "the amount of firepower that you
with Miers standing right behind him. As the
have [unintelligible] in this vehicle."
search began, Miers noticed a handgun pro-
truding from underneath a bag and interceded,
Miers began to search the interior of Wal-
"Okay, just, that's okay, just step away from,
len's truck, uncovering four rifles, three hand-
man you're making me nervous with all those
guns (two of which were loaded), and a shot-
weapons in there. Just go ahead and shut the
gun. He observed that the barrel of one of the
door and step to the rear of the truck please."
rifles had been threaded at the end to allow an
attachment to be screwed on. While search-
Wallen complied, whereupon Miers asked
ing, Miers received a communication, inform-
Wallen whether he had a license to carry a
ing him that the aforementioned warrant for
concealed weapon. Wallen stated that he did
Wallen could not be executed outside Dallas
not have a license but that he was not carrying
County.
any concealed weapons. Miers then asserted
that Wallen was carrying handguns, to which
Miers returned to the patrol car and asked
Wallen replied that he was carrying guns "from
Wallen what kinds of weapons he had, to
a place of business which is . . . handgun ori-
which Wallen responded that he had three
ented," which, he contended, the law allowed.
handguns and four rifles (not mentioning the
Miers then told Wallen that the fact that he
shotgun). Wallen explained that he operated
had a gun business was only a defense to
a shooting range and was presently moving the
transporting a concealed handgun.
weapons to his residence because of flooding.
Miers then informed Wallen that the warrant
Because Wallen had thus far failed to pro-
for his arrest could not be confirmed, but he
duce identification, Miers asked for his name,
would nevertheless remain in custody because
date of birth, and address. He left Wallen at
of possession of handguns without a permit
the rear of the truck, asking him to "hang
and because of the fact that he did not know
tight." While radioing the information from
who Wallen was or what he was intending to
his patrol car, he observed Wallen moving
do with the weapons.
toward the cab of his truck. Miers exited the
patrol car and instructed Wallen to return to
Miers called another officer and his supervi-
the rear of the truck. Wallen hesitated in com-
sor to the scene. On arrival, they confirmed
pliance, at first only moving partially to the
that the guns were not stolen, and measured
rear of the truck. After being given the in-
the barrel length of the gun that had the
struction for a second time, Wallen complied.
threading on the end of the barrel. Miers told
his supervisor that given the amount of fire-
After returning to his patrol car, Miers ver-
power Wallen possessed, his lack of identifica-
ified the personal information Wallen had giv-
tion, and the threaded rifle barrel, Miers was
2

concerned that Wallen might be a sniper.
passenger compartment of a vehicle if he has a
Wallen then insisted that he was merely trans-
reasonable suspicion that the person poses a
porting the guns from his firing range and sug-
danger and may gain immediate control of
gested that the officers contact the Duncanville
weapons.
Police Department to vouch for his ownership
of a shooting range.
The court denied the motion, holding that
Long did not apply because Wallen could not
After determining that the length of the
have gained control of the weapons after he
threaded barrel was fifteen and one-half inches,
was already handcuffed and in the patrol car,
the officers called an agent at the Bureau of
and that it was not reasonable to consider him
Alcohol, Tobacco, and Firearms, who in-
dangerous, because he was cooperative with
formed them that the possession of a barrel
Miers. Citing Miers's inconsistent reasons for
shorter than sixteen inches was a violation of
placing and keeping Wallen in custody, the
federal law unless the weapon was registered.
court concluded that the search was not a valid
Wallen was placed under arrest, approximately
protective sweep for weapons, but rather a
one hour and nineteen minutes after the initial
"rummaging through the vehicle in an effort to
stop, for unlawfully carrying concealed weap-
find illegal firearms that could provide incrimi-
ons and the firearms violation. The police
nating evidence against Wallen." The govern-
subsequently discovered a silencer in Wallen's
ment appeals the denial of the motion for
truck and established the fact that one of the
reconsideration pursuant to 18 U.S.C. § 3731
weapons was fully automatic. The entire
and rule 4(b)(1)(B)(i), FED. R. APP. P.
traffic stop was recorded by a camera in
Miers's vehicle.
III.
A.
II.
We uphold a district court's findings of
The government charged Wallen with un-
facts on a motion to suppress unless they are
lawful possession of a machine gun and a si-
clearly erroneous. United States v. Shabazz,
lencer in violation of § 5861(d). Wallen
993 F.2d 431, 434 (5th Cir. 1993). Conclu-
moved to suppress the guns, claiming an un-
sions of law are reviewed de novo. United
reasonable search and seizure under the Fourth
States v. Gonzales, 190 F.3d 668, 671 (5th
Amendment. During the suppression hearing,
Cir. 1999). Findings that are in plain contra-
the parties presented the court with Miers's
diction of the videotape evidence constitute
testimony and with the videotape of the stop.
clear error.1
Holding that the guns seized from Wallen's
vehicle were obtained through an illegal search
for which no exception applied, the district
court suppressed them.
1
The government moved for reconsideration
See, e.g., United States v. Jones, 234 F.3d
in which it reiterated prior arguments regard-
234, 237 n.1, 241-43 (5th Cir. 2000) (rejecting
ing the validity of the search. It contended,
witness testimony regarding whether an answer
aroused an officer's suspicion, and correcting
inter alia, that the search was permissible un-
findings regarding the time at which a transaction
der Michigan v. Long, 463 U.S. 1032, 1049
occurred, because testimony and findings conflicted
(1983), which allows an officer to search the
with videotape evidence).
3

B.
measures to ensure that there were no other
Under the Fourth Amendment, warrantless
weapons within the person's immediate grasp
searches are presumptively unreasonable, and
before permitting him to reenter his automo-
the government bears the burden of establish-
bile. Id. at 1052.
ing circumstances to justify them. United Stat-
es v. Lage, 183 F.3d 374, 380 (5th Cir. 1999);
Under Long, this court has found protective
United States v. Berick, 710 F.2d 1035, 1037
searches of automobiles valid under the Fourth
(5th Cir. 1983). The government argues that
Amendment where the police officer had an
the search was valid under Long.
objective reason to fear for his safety or the
safety of others.2 Where we have rejected a
In Long, two police officers stopped to in-
protective search, the officers had almost
vestigate a car that had swerved into a ditch.
nothing on which to base a concern for safety;
See Long, 463 U.S. at 1035. The driver ap-
the police did not observe unusual weapons,
peared intoxicated, and when the officers fol-
nor did the individuals act in a particularly
lowed him to his vehicle, they noticed a hunt-
suspicious manner.3
ing knife on the floorboard, so they frisked him
and searched the car for weapons. See id. at
Miers encountered facts that would objec-
1036. During the search, they shone a light
tively cause him reasonably to suspect that
into the car, observed something protruding
there were other weapons in the vehicle and to
from under the armrest, and discovered a
worry about his safety. At the time of the pro-
pouch containing marihuana. See id. at 1036,
tective search, Miers knew Wallen possessed
1050.
The Supreme Court determined that protec-
2 See, e.g., United States v. Baker, 47 F.3d 694
tive pat-down/frisk searches authorized by
(5th Cir. 1995) (upholding protective automobile
Terry v. Ohio, 392 U.S. 1, 22 (1968), extend
search based on existence of hunting knife, ammu-
to passenger compartments of automobiles,
nition, and occupant's general statement that she
but limited to those areas in which a weapon
"did not know" the location of a pistol); United
may be placed or hidden, when the police
States v. Coleman, 969 F.2d 126, 131 (5th Cir.
1992) (upholding protective automobile search af-
officer possesses "an articulable and objec-
ter an individual stopped for traffic violation ad-
tively reasonable belief that the suspect is po-
mitted to possessing gun in pouch where he kept
tentially dangerous." See Long, 463 U.S. at
license and registration); United States v. Maestas,
1051. "`[The] issue is whether a reasonably
941 F.2d 273, 277 (5th Cir. 1991) (upholding
prudent man in the circumstances would be
search of a car based on accusatory and threaten-
warranted in the belief that his safety or that of
ing conversations between two parties in car).
others was in danger.'" Id. at 1050 (quoting
Terry, 293 U.S. at 27). The Court emphasized
3 See, e.g., Estep v. Dallas County, 310 F.3d
the need to protect officers' safety, because
353, 358 (holding that camouflage gear, National
"roadside encounter[s] between police and
Rifle Association sticker, key-chain mace, and an
suspects are particularly hazardous, and . . .
unusual tone of voice on the part of the passenger
danger may arise from the possible presence of
did not justify protective automobile search); see
also United States v. Hunt, 253 F.3d 227 (5th Cir.
weapons in the area surrounding a suspect."
2001) (holding that the mere fact that the driver
Id. at 1049. The Court determined that the
met the officer outside his car with a license does
officers acted reasonably in taking preventive
not justify a protective search).
4

at least three weapons in his truck. Wallen
Court identified a purpose of protective
disobeyed instructions at least once, when he
searches to be the concern that "if the suspect
walked in the general direction of the cab after
is not placed under arrest, he will be permitted
Miers had instructed him to "sit tight" at the
to reenter his automobile, and he will then
rear of his vehicle.
have access to any weapons inside."
Wallen had admitted that he lacked any
The possibility that Miers might release
documentation for the weapons, and he could
Wallen to his truck would provide grounds for
not provide anything at the time to support his
the protective search. Additionally, in United
claim that he owned a target range. At the
States v. Sanders, 994 F.2d 206, 208-10 (5th
time that the search was initiated, he was
Cir. 1993), we rejected a similar argument that
aware of a Dallas County warrant issued on his
a frisk was invalid because the suspect was
arrest. Additionally, the stop happened at
already in handcuffs with respect to a Terry
night, and Wallen was suspiciously barefoot.4
stop. We recognized that suspects in hand-
Miers's actions were justified, because on
cuffs can remain a danger to the police, partic-
these facts, "a reasonably prudent man in the
ularly when weapons are present. Id. As a
circumstances would be warranted in the belief
result, we held that the danger justified a pat-
that his safety or that of others was in danger."
down to secure the officer's safety. Given that
Id.
a protective sweep of an automobile under
Long is viewed as a "Terry pat-down" of a car,
Despite this binding authority, the district
the Sanders rule applies here to legitimize this
court concluded that Wallen was not danger-
sweep, although Wallen was in handcuffs at
ous, and the search was invalid, because
the time.5
(1) Wallen was in handcuffs at the time of the
search; (2) Miers did not intend to release
The district court 's reasoning that this
Wallen back into his vehicle; (3) Wallen was
search was invalid under Long, because Miers
cooperative throughout the traffic stop; and
did not intend to release Wallen back to his
(4) Miers did not actually fear for his own
car, is unavailing, because the district court
safety. The district court's grounds lack merit.
contradicts itself in its findings. To refute the
inevitable-discovery argument that was made
First, the court was incorrect in finding that
by the government during the suppression
the protective search was invalid because Mi-
hearing, the district court found:
ers had already placed Wallen in handcuffs.
This finding misunderstands the nature of the
The contents of the tape leave open the
protective search; the fear of a person's gain-
possibility that Officers [sic] Miers would
ing immediate control of weapons does not
not have arrested Wallen for his possession
limit itself to the time of the stop, but extends
of the handguns that were found on the seat
through the entire interaction between him and
the officer. In Long, 463 U.S. at 1051-52, the
5 See United States v. Ibarra-Sanchez, 199
F.3d 753, 760 n.7 (5th Cir. 1999) (noting that a
Long protective sweep of a van "might also be
4 See Long, 463 U.S. at 1050 (relying in part on
justified" in a case where the police had placed all
the fact that it was night as a factor enhancing
the occupants in handcuffs and in the backseats of
danger to the police).
their patrol cars).
5

if Officer Miers had not discovered what he
able under the Fourth Amendment.6 Specifi-
considered to be other illegal weapons
cally with regard to the matter of a protective
through his warrantless search of the vehi-
sweep under Long, this court has emphasized
cle. Though not apparent from the record,
that there is no legal requirement that an of-
there is a possibility that Officer Miers did,
ficer subjectively fear for his own safety before
to some degree, accept Wallen's position
engaging in such a search.7 Even if the district
that he had a right to be transporting the
court was correct in finding that Miers was
handguns to his home from his gun range
not actually fearful for his safety, the circum-
east of Ferris, Texas.
stances of this case would be enough objec-
tively to put a reasonable officer in fear and
The district court cannot have it both ways; its
thus to justify the instant search under Long.
finding of fact that there was a possibility that
Wallen would be returned to his vehicle estab-
IV.
lishes the threat of danger that justifies a Long
Miers may not have proceeded in his inves-
search, despite the fact that at the time of the
tigation of the traffic stop in the most prudent
search the defendant was handcuffed.
manner, but his actions did not violate the
Fourth Amendment. Under Long, Miers's
Additionally, the district court's rationale
search after handcuffing Wallen was valid, in
that a Long search was not permitted because
that he had reasonable objective grounds to
of its finding that Wallen was "cooperative" is
fear for his safety. As the district court found,
not compelling. The videotape demonstrates,
Miers's sweep of the vehicle uncovered the
and the district court noted, that Wallen dis-
rifle with the allegedly short barrel. Because
obeyed Miers's instruction to "hang tight" at
the parties do not contest that the short-barrel
the rear of the truck, and he delayed in com-
gun provided Miers with probable cause to
plying with the instruction to return when he
arrest Wallen and to search and impound the
subsequently left his position.
remaining weapons, the silencer and the ma-
chine gun, the order suppressing them was im-
Even if Wallen's conduct was the result of
providently granted.
an honest misunderstanding regarding Miers's
instructions, the conduct must be analyzed
from the officer's perspective. See Long, 463
U.S. at 1049. From Miers's perspective, a
6 See Whren v. United States, 517 U.S. 806,
reasonably prudent person would be warranted
813 (1996) ("Not only have we never held . . . that
in detecting danger from these circumstances,
an officer's motivation invalidates objectively jus-
particularly in light of the guns that were
tifiable behavior under the Fourth Amendment, but
already identified in plain view.
we have repeatedly held and asserted to the con-
trary.")
The district court's finding that Miers did
7
not in fact fear for his safety is incorrect, be-
See Baker, 47 F.3d at 694 (rejecting argument
cause the validity of the protective search is
that lack of actual fear on officer's part invalidated
based on objective evidence. The subjective
Long automobile search, because Fifth Circuit
"has never held that an officer's objectively reason-
motivations of police are irrelevant to deter-
able concern for safety does not justify a protective
mining whether a search or seizure is reason-
search for weapons where the officer has no actual
fear for his safety").
6