Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Loken, Chief Judge.
Submitted: April 15, 2008
Before LOKEN, Chief Judge, JOHN R. GIBSON and MELLOY, Circuit Judges.
Jeffery Lee Oliver entered a conditional plea of guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and now appeals the district court's*fn1 denial of his motion to suppress the firearm. Following two evidentiary suppression hearings, the district court ruled that Minnesota State Highway Patrol Officer Michael Engum made a valid late-night traffic stop and then conducted a valid pat-down search of Oliver, the vehicle's passenger, and discovered the firearm. On appeal, Oliver renews his contention that the pat-down search violated his Fourth Amendment rights because Engum lacked reasonable suspicion to believe that Oliver was armed and dangerous. On that fact-intensive issue of law, we agree with the district court's conclusion. Oliver also argues that the search was invalid because Engum lacked reasonable suspicion that Oliver was engaged in criminal activity. We reject that contention because it was not timely raised in the district court and is without merit. Accordingly, we affirm.
Many background facts are undisputed. To the extent Engum and Oliver gave differing accounts of their encounter at the suppression hearings, the district court credited Engum's version. Oliver does not challenge the court's findings of fact as clearly erroneous. See United States v. Taylor, 519 F.3d 832, 833-35 (8th Cir. 2008) (standard of review).
At approximately 11:45 p.m., Engum stopped a Ford Expedition near Bemidji, Minnesota, for traveling without a rear license plate. The Expedition did not immediately pull over when Engum activated his emergency lights, traveling some two hundred yards before pulling into a gas station. As Engum approached the driver's side, the driver threw a set of keys onto the roof. Engum observed two men in the front seats, the driver and passenger Oliver. Engum asked the driver for his license. The driver's hands were shaking as he handed over an instruction permit that authorizes an adult to operate a vehicle when accompanied by a licensed driver at least eighteen years old. Engum asked Oliver if he had a valid driver's license. Oliver said no and handed Engum an identification card from the Red Lake Band of Chippewa. Oliver appeared nervous and edgy and refused to make eye contact. Engum asked whether the vehicle was registered; neither occupant replied.
Engum returned to his vehicle and arranged for a custody tow, his usual practice when no occupant is a licensed driver. Before completing the paperwork, Engum walked back to the Expedition, asked the driver to exit, patted him down, and placed him in the back seat of the patrol car. Engum returned to the Expedition and told Oliver he could not remain in the vehicle because it would be towed and inventoried. Engum offered Oliver a ride to the Red Lake Reservation boundary, located some twenty-two miles from Bemidji. Oliver neither accepted nor refused.
Oliver then opened the passenger door to exit the vehicle. Engum noticed Oliver fidgeting with an item in the front pocket of his hooded sweatshirt. Engum testified that Oliver's look and body language as he exited made the hair rise on the back of Engum's neck. Engum told Oliver to place his hands on the vehicle for a pat-down search. Engum felt a hard object on Oliver's waistband. Oliver said it was a box of condoms and then attempted to break free. Engum brought Oliver to the ground. Another officer arrived to assist and subdued Oliver with a taser. The officers arrested Oliver for interfering with legal process and found a loaded handgun in his waistband. A subsequent search of the Expedition uncovered another loaded handgun near the front passenger seat. After waiving his Miranda rights, Oliver admitted he was a convicted felon.
In the district court, Oliver moved to suppress evidence seized after the pat-down search and his incriminating statements, arguing (i) that Engum lacked probable cause to stop the Expedition because there was a temporary vehicle registration sticker displayed in the vehicle's rear window, and (ii) that the pat-down search was invalid because Engum lacked reasonable suspicion that passenger Oliver was armed and dangerous. After an evidentiary hearing, Magistrate Judge Erickson issued a Report and Recommendation concluding that the traffic stop was valid because Engum could not identify the temporary permit in the tinted rear window, and that the pat-down search was valid based upon Engum's reasonable suspicion that Oliver was armed and dangerous.
Oliver filed an objection to the Report and Recommendation, incorporating his prior memorandum and arguing that the evidence did not support a conclusion that Engum's pat down search was supported by reasonable suspicion that Oliver was armed and dangerous. One month later, new defense counsel filed a motion to supplement the record, arguing that police photographs would show that the temporary permit was visible to Engum. He also sought leave to file supplemental objections. The district court remanded the suppression motion to the magistrate judge, stating: "Instead of permitting Oliver to file supplemental objections, the Court remands this matter to the Chief Magistrate Judge to reopen the suppression hearing to permit admission of the two photographs and any necessary additional testimony."
On remand, Magistrate Judge Erickson held a second evidentiary hearing that he limited to testimony relating to the police photographs. After the hearing, Oliver filed a memorandum arguing for the first time the issue he raises on appeal -- that Engum could not conduct a pat-down search without reasonable suspicion that Oliver was both armed and dangerous and involved in criminal activity. Magistrate Judge Erickson issued a second Report and Recommendation, finding that the photographs did not impeach Engum's testimony that he could not see the temporary license through the tinted rear window and declining to address other issues because they were previously resolved, "explicitly, or implicitly." Oliver objected to this Report, again arguing that Engum lacked probable cause for the traffic ...