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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-8274
UNITED STATES of AMERICA,
Appellee-Plaintiff,
VERSUS
JOHNNY CARL MICHELLETTI,
Appellant-Defendant.
Appeal from the United States District Court
For the Western District of Texas
(May 10, 1993)
Before REYNALDO G. GARZA, WILLIAMS and JONES, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Appellant, Johnny Carl Michelletti, appeals the denial of his
motion for suppression of evidence. Michelletti entered into a
plea agreement expressly reserving the right to challenge his
motion's denial. The appellant pled guilty to the unlawful
possession of a firearm by a convicted felon. Upon careful review,
we find that the denial of the motion was proper and we therefore
affirm.
FACTS
On November 17, 1991, El Paso Police Officer George Perry and

his partner were on routine motor patrol in a high crime area at
around 2:00 a.m. As they were driving, Perry observed a man
walking in front of Alacran's Bar. When the man saw the patrol
car, he turned and ran behind the bar. The officers decided to
investigate and drove the car around the bar from the other
direction. Officer Perry saw a group of three men standing there,
including the man the police originally spotted and who was now out
of breath. Perry left his car and quickly scanned the subjects'
hands for weapons. At this instant a man pushed open the back exit
door and had an open beer can in his left hand while keeping his
right hand in his pants pocket. The officer testified that this
man, Johnny Carl Michelletti, seemed to have a cocky attitude and
he stared right at the policeman. He then attempted to walk past
the officer. Perry stated that he stopped the subject because he
was violating the law by leaving a bar with alcohol. He was
suspicious that some other criminal activity might be taking place
because the initial subject had run from the police and joined the
group of men at such a late hour in this crime ridden part of town.
The officer was particularly wary of Michelletti, who is six foot
two and weighs 220 pounds and kept his right hand in his pocket
when joining the suspicious trio. The appellant was told to put
the beer on the patrol car and put both his hands on the vehicle.
A quick frisk uncovered a .22 caliber pistol in the right hand
pants pocket that had originally drawn the officer's attention.
The appellant had been convicted of aggravated assault in 1989.
Michelletti pled guilty to the unlawful possession of a firearm by
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a convicted felon in violation of 18 U.S.C. 922(g)(1). He
specifically reserved the right to appeal the denial of his motion
to suppress the evidence of the pistol. He was sentenced to 33
months imprisonment, three years supervised release and a $50
assessment. Michelletti timely appealed.
ANALYSIS
The appellant argues that Officer Perry had no basis to detain
or frisk him and therefore the discovered concealed pistol should
not have been admitted into evidence. We disagree. An officer may
stop and search an individual if he has reasonable suspicion that
criminal activity is afoot and the suspect might be armed. Terry
v. Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
"We are unwilling to tie the hands of police officers operating in
potentially dangerous situations by precluding them from taking
reasonable steps to ensure their safety when they have legitimately
detained an individual." United States v. Rideau, 969 F.2d 1572,
1575 (5th Cir. 1992).
Officer Perry had several reasons to be suspicious of the
appellant. The time was around 2:00 a.m., closing time for bars.
The officers were on routine patrol in a high crime area when they
observed a man turn and run away from them at Alacran's Bar. This
first subject immediately went behind the bar and joined his two
friends presumably to announce the policemen's arrival. Suspicions
were already aroused by this evasive individual joining these other
men when he was obviously apprehensive about the police presence.
When the policeman approached the group, Michelletti suddenly
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pushes open the back door of the bar and approaches. He is holding
an open beer can in his left hand while keeping his right hand in
his front pants' pocket. The appellant weighs 220 pounds and is
six foot, two inches tall. This imposing figure could cause a lot
of harm if he did have a weapon. The officer appreciated the risk
involved if indeed there was some criminal intent on the part of
the four men. The officer also surmised, in the alternative, that
the three men and the police might be in danger if the appellant
had ill intent and was actually armed. The fact that he kept his
right hand in his pocket at all times, given the surrounding
circumstances, was reason enough to suspect Michelletti of possibly
being armed and warranted the pat down frisk for the officers' and,
possibly, the bystanders' safety. The appellant had a bit of a
cocky attitude, stared at the officer and then attempted to walk
past him. Michelletti did not have any intention of setting the
beer down or pouring it out. The officer knew that if the bar had
a mixed beverage permit, as most bars do, that it was a violation
to remove any alcoholic beverage from the premises under the Tex.
Alco. Bev. Code Ann. � 28.10.1 If in the alternative, the
establishment had an off premises license, it would be a violation
under �� 71.012 or 101.723. The record is silent as to which
1 � 28.10 provides in relevant part:
Consumption Restricted to Premises
.
.
.
.
(b) A mixed beverage permittee may not permit any person to
take any alcoholic beverage purchased on the licensed
premises from the premises where sold. . . .
2 � 71.01 Authorized Activities.
The holder of a retail dealer's off-premise license
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license the bar carried. The officer also did not know whether the
beer was illegally sold after 2:00 a.m., in violation of � 105.05.4
The officer had a definite duty to uphold the Code under � 101.07.5
It is clear that the officer had a good faith reason to believe
that a violation had taken place and therefore had the authority to
stop the appellant aside from the suspicions generated by the
surrounding events and Michelletti's concealed hand.
Given the appellants' attitude, stare and the placement of his
right hand while he cavalierly carried a beer out of a bar in
violation of Texas Law were grounds for suspicion. When you
combine these reasons with the time at night, the high crime area,
may sell beer in lawful containers to consumers, but not
for resale and not to be opened or consumed on or near
the premises where sold.
3 � 101.72 states in relevant part:
Consumption of Alcoholic Beverage on Premises Licensed for
Off-Premises Consumption
(a) A person commits an offense if the person knowingly
consumes liquor or beer on the premises of a holder of a
wine and beer retailer's off-premise permit or a retail
dealer's off-premise license.
4 � 105.05 states in relevant part:
Hours of Sale: Beer
(a) No person may sell, offer for sale, or deliver beer
at any time not permitted by this section.
.
.
.
.
.
(c) In a county having a population of 300,000 or more,
according to the last preceding federal census, a holder of
a retail dealer's on-premise late hours license may also
sell, offer for sale, and deliver beer between midnight and
2 a.m. on any day.
5 � 101.07 Duty of Peace Officers
All peace officers in the state, including those of
cities, counties, and state, shall enforce the provisions of
this code and cooperate with and assist the commission in
detecting violations and apprehending offenders.
5

the suspicious actions of the three men, the officer had sufficient
reasonable suspicion that he might be in danger and that
Michelletti was possibly armed. The police did not know if they
were in a situation involving four hostile suspects or only one
possibly armed suspect giving the officer the added responsibility
of protecting the civilians. Michelletti was properly frisked
because he kept his hand where a weapon could and actually was
concealed. The danger these officers were facing is underscored in
the testimony given that a fellow officer and friend was shot to
death in El Paso only two weeks prior.
We view the evidence with all inferences in favor of the
verdict. United States v. Martinez, 975 F.2d 159, 161 (5th Cir.
1992), cert. denied, (1993). Findings of fact can be challenged
only for clear error. United States v. Richardson, 943 F.2d 547,
549 (5th Cir. 1991). We do not find any reversible error here.
CONCLUSION
We find that Officer Perry had reasonable suspicion to stop
and frisk the appellant. The fruit of that frisk, the concealed
pistol, was therefore properly admitted into evidence. For all the
above reasons, we
AFFIRM.
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