Appeal from the United States District Court for the Western District of Texas. D.C. DOCKET NUMBER W-91-CR-93(1). JUDGE Walter S. Smith, Jr.
Before Wiener, Barksdale, and Demoss, Circuit Judges.
Defendant-Appellant Robert Earl Sanders appeals his conviction as a felon in possession of a firearm, alleging that the district court improperly denied his motion to suppress evidence seized following a warrantless stop and frisk of his person. Finding no reversible error, we affirm.
While on patrol alone in his squad car one afternoon in December 1990, Waco Police Officer John Hambrick was dispatched by radio to Cruz's Grocery Store to investigate a complaint that a suspicious person with a gun was on the premises of that business. Cruz's Grocery sells alcoholic beverages and is located in a residential area known for its high rate of crimes involving both violence and weapons. Mr. Cruz, the grocery store owner, had called the police on previous occasions about disturbances and suspicious persons at his business.
The dispatcher advised Officer Hambrick that Mr. Cruz had called in the complaint, describing the armed individual as a black male wearing a blue baseball cap and a tan jacket. Officer Hambrick drove to Cruz's in approximately two to three minutes. Upon his arrival he observed eight to ten persons outside of the store. This group comprised at least two children as well as Sanders. He alone matched Mr. Cruz's description of the gunman. Sanders's tan jacket was long enough to cover the waistband of his pants. As Officer Hambrick neared the store, he could see that Sanders was holding a paper bag containing what appeared to be a bottle of some alcoholic beverage. The officer also noticed that Sanders turned and started walking away when he saw the police car approaching.
Officer Hambrick stopped his car, opened the door, drew his duty weapon and, taking cover behind the open door, told Sanders to stop and to get down on the ground. Sanders stopped but refused to lie down. Even though Officer Hambrick repeated his commands, Sanders never got down on the ground.
Within less than a minute Officer Roy Luna arrived to backup Officer Hambrick. Officer Hambrick kept his gun trained on Sanders while he was handcuffed by Officer Luna. Officer Hambrick then reholstered his gun and approached Sanders to frisk him for weapons. Officer Hambrick first removed a lock blade folding hunting knife from Sanders's back right pocket. Officer Hambrick had seen this knife visibly protruding from the top of that pocket when he approached to frisk Sanders, but had not been able to see it earlier.
Sanders asked Officer Hambrick why he (Sanders) was being arrested. Officer Hambrick told Sanders that he was not under arrest; that the police had received a call about Sanders being in Cruz's and carrying a gun, and that he (Officer Hambrick) was frisking Sanders for weapons. Sanders then volunteered that he had a gun, but had not done anything with it. Immediately after Sanders made this statement, Officer Hambrick found a fully loaded Raven .25 caliber pistol in the right pocket of Sanders's tan jacket and removed it. A Raven .25 caliber pistol is a small handgun that can easily be concealed without producing a telltale bulge; it is a type of gun commonly encountered by the police.
After completing this frisk and determining that Sanders did not possess any additional firearms or dangerous objects, Officer Hambrick unloaded the Raven pistol and secured it. He then formally placed Sanders under arrest for the state offense of unlawfully carrying a weapon in an establishment licensed for the sale of alcoholic beverages.*fn1
When Sanders was determined to have three prior felony convictions, he was indicted for possession of a firearm by a felon under 18 U.S.C. §§ 922(g)(1) and 924(a). Following the district court's denial of Sanders's pretrial motion to suppress the gun from being introduced into evidence on the ground that it was the fruit of an illegal search and seizure, he was tried before a jury and convicted on the firearms charge. He timely appealed.
Sanders argues that the district court erroneously denied his motion to suppress the gun that had been removed from his pocket. He does not contest the validity of his initial stop and detention, but instead insists that the police exceeded the permissible scope of such a Terry stop by holding him at gunpoint and handcuffing him before frisking him. Sanders claims that this conduct transformed the stop into a de facto arrest that was illegal because it was not supported by probable cause. He concludes that, as the search of his person cannot be upheld as either a proper frisk or incident to a legal arrest, the gun should be suppressed.
The standard of review for a district court's action on a motion to suppress is well established in this circuit. Questions of law are reviewed de novo;*fn2 questions of fact are treated more deferentially:
In reviewing a trial court's ruling on a motion to suppress based on live testimony at a suppression hearing, the trial court's purely factual findings must be accepted unless clearly erroneous, or influenced by an incorrect view of the law, and the evidence must be viewed in the light most favorable to the party prevailing below, except where such a view is either not consistent ...