KENNETH HOWARD NASH, PETITIONER V. UNITED STATES OF AMERICA No. 89-6160 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A4) is reported at 876 F.2d at 1359. JURISDICTION The judgement of the court of appeals was entered on June 15, 1989. A petition for rehearing was denied on August 11, 1989. The petition for a writ of certiorari was filed on October 16, 1989 and is therefore out of time under former Rule 20.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a law enforcement agent properly conducted a limited search for weapons inside petitioner's car based on reasonable suspicion that petitioner was armed and dangerous. STATEMENT Following a bench trial in the United States District Court for the Central District of Illinois, petitioner was convicted of possession of marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a) (1), and carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. 924(c). He was sentenced to a total of five years' and six months' imprisonment and a $75,000 fine. The court of appeals affirmed. Pet. App. A1-A4. 1. The evidence at trial showed that on the morning of November 27, 1987, Illinois State Trooper James Drozdz was patrolling an Illinois highway in a marked police car when petitioner drove into the highway in front of Drozdz, swerving as he did so. Petitioner was coming from Gulfport, Illinois, where the bars do not close until 5 a.m. As petitioner weaved along the highway, Drozdz followed him for about four miles. When Drozdz came within a car length of petitioner's car, Drozdz saw petitioner make a "furtive gesture," appearing to raise himself up from the car seat and reach toward the floor. Drozdz followed petitioner for another quarter of a mile before stopping him. Pet. App. A2. Drozdz approached petitioner's car and noticed that petitioner was unkempt: his face was unshaven and puffy; his hair was mussed, his eyes were red, and his breath smelled of alcohol. A German shepherd dog was in the back seat. After observing a jacket tucked under petitioner's lap and stretched out to the floor, Drozdz asked petitioner to leave the car. Drozdz reached into the car and lifted the jacket with his left arm. Under the jacket was an open garbage bag containing what looked and smelled like marijuana. Drozdz took petitioner to his squad car, frisked him, and read him the Miranda warnings. After obtaining petitioner's consent, Drozdz searched the car and seized a pistol, a stun gun, additional marijuana, and money. At petitioner's trial, the evidence seized by Drozdz was admitted into evidence over petitioner's objection. Pet. App. A2. 2. The court of appeals affirmed. Pet. App. A1-A4. It held that Drozdz's search of the interior of the car by lifting the jacket from the floor was proper because Drozdz had a reasonable basis for suspecting that petitioner was armed and that a weapon was hidden under the jacket. The court emphasized two factors: petitioner's "furtive gesture" as the patrol car pulled up behind him, and the presence of the jacket, which covered the area in which petitioner appeared to have hidden something. As the court explained: "These two facts, the furtive gesture and the position of the jacket, warranted Drozdz's belief that a search was necessary for his safety." Pet. App. A3. The court also held that Drozdz's search was limited to the area in which a weapon could have been located. Ibid. ARGUMENT Petitioner contends (Pet. 6-10) that the seizure of the guns and drugs from his car was illegal because Officer Drozdz did not have a sufficient basis to search his car for weapons. That fact-bound issue does not merit further review. The Fourth Amendment permits a law enforcement agent to frisk a suspect if the agent reasonably suspects that the suspect is armed and dangerous. Terry v. Ohio, 392 U.S. 1, 30 (1968). In Michigan v. Long, 463 U.S. 1032 (1983), the Court held that a law enforcement agent who has stopped a motorist on the highway may search the passenger compartment of a car, limited to those areas in which a weapon may be hidden, if the officer has a reasonable belief that an occupant of the car is dangerous and may gain immediate control of weapons. 463 U.S. at 1049. Here, Drozdz properly lifted up petitioner's jacket that was located inside petitioner's car, because he had a reasonable suspicion that petitioner was dangerous and had immediate access to a weapon. First, petitioner's act of appearing to hide something under the seat as Drozdz pulled up behind his car was furtive and justified a belief that petitioner was hiding a weapon. See United States v. Paulino, 850 F.2d 93, 97 (2d Cir. 1988) (car occupant's furtive gesture inside car justified search underneath car mat), cert. denied, 109 S. Ct. 1967 (1989); United States v. Williams, 822 F.2d 1174, 1180 n.62 (D.C. Cir. 1987) (car occupant's furtive gesture justified agents' fear for their safety); United States v. Denney, 771 F.2d 318, 322 (7th Cir. 1985) (furtive gestures warranted belief that suspect had weapon in his vehicle); United States v. Pajari, 715 F.2d 1378, 1384 (8th Cir. 1983) (furtive gesture as agents approached motorist justified belief that he might be armed). See also United States v. Lego, 855 F.2d 542, 545 (8th Cir. 1988) (furtive gesture justified agent's fear for his safety). Second, Drozdz's suspicion was justifiably heightened when he saw that petitioner had placed his jacket in the car to cover the very area in which petitioner had appeared to hide something. Finally, petitioner had driven his car erratically and appeared to be under the influence of alcohol. See Michigan v. Long, 463 U.S. at 1050 (motorist had committed traffic violations and appeared to be under the influence of alcohol). Contrary to petitioner's contention (Pet. 8-9), Drozdz had no duty to frisk petitioner before he lifted up the jacket. Because Drozdz reasonably believed that petitioner's jacket concealed a weapon, he was entitled to search that area first before frisking petitioner. Indeed, petitioner's argument is directly at odds with Long, which rejected the argument that police officers should take alternate measures to secure their safety short of searching the interior of the car. 463 U.S. at 1051-1052. To be sure, the officers in Long frisked the suspect before searching his car, but this Court did not require the officers to take that step before conducting the car search. Petitioner's reliance on United States v. Lott, 870 F.2d 778 (1st Cir. 1989), is misplaced. There, the First Circuit upheld a district court's suppression of weapons that police officers had seized from a car. The officers had stopped the car for a traffic violation. They approached the car and observed that the driver's arm was bloody. They also observed what appeared to be burglars' tools in the car. Rather than searching either the car's occupants or the car itself, the agents treated the driver's wound and summoned an ambulance. Later, when one of the officers began to suspect that the passenger was hiding something, the officers searched the car and seized evidence of crime. The district court suppressed the evidence of the handguns on the ground that the officers did not fear for their safety. The First Circuit affirmed. It concluded that the officers had no justification for searching the car, because the officers did not reasonably belive that the suspects were armed and dangerous. The court observed that the initial stop was for a traffic violation only; the officers did not immediately frisk the suspects, which they would have done if they had believed that the suspects were dangerous. Moreover, one of the police officers admitted at trial that the search was for contraband, not weapons. Lott held only that the officers in that case did not have a reasonable belief that the suspects in question were dangerous and that they had access to a weapon in the car. Lott did not hold that police officers who reasonably believe that a motorist is armed and dangerous must first frisk him before conducting a protective search of his car. /1/ Here, by contrast, Drozdz's act of lifting the jacket immediately after petitioner left the car demonstrated that Drozdz had a reasonable belief that the jacket concealed a weapon and that he feared for his safety. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS E. BOOTH Attorney JANUARY 1990 /1/ Petitioner's reliance (Pet. 9) on Canal Zone v. Bender, 573 F.2d 1329 (5th Cir. 1978), is also misplaced. Bender held that the Fourth Amendment does not allow a police officer to search a car after removing a motorist from the car, based only on reasonable suspicion. Bender, however, is no longer good law in light of Michigan v. Long.