F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH
UNITED STATES COURT OF APPEALS

June 8, 2005

PATRICK FISHER

TENTH CIRCUIT

Clerk

UNITED STATES OF AMERICA,

v.

Plaintiff-Appellee,

BRYAN JAMES DENNISON,

No. 04-1062

Defendant-Appellant.

Appeal from the United States District Court

for the District of Colorado
(D.C. No. 03-CR-197-MK)
Andrew A. Vogt, Assistant United States Attorney (John W. Suthers, U.S.
Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
Raymond P. Moore, Federal Public Defender, Denver, Colorado, for DefendantAppellant.
Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
HENRY, Circuit Judge.
HENRY, Circuit Judge.

Bryan James Dennison pleaded guilty in November 2003 to one count of

unlawful possession of a machine gun and aiding and abetting its possession, in
violation of 18 U.S.C. 922(o), 924(a)(2), and 2. In his conditional plea
agreement, Mr. Dennison reserved the right to appeal the district courts denial of
his motion to suppress physical evidence and statements from a warrantless
search. We exercise jurisdiction under 28 U.S.C. 1291 and affirm the district
courts denial of Mr. Dennisons motion to suppress.

I. BACKGROUND
At approximately 3:00 a.m. on January 21, 2003, James Dennison and Keith
Allen were parked in an Englewood, Colorado apartment complex that had a high
incidence of nighttime car theft. Mr. Dennison was in the drivers seat of his
gold Ford truck with a topper shell; Mr. Allen was in the passengers seat. The
lights and engine were turned off. Officer Christian Contos, patrolling the area,
pulled up alongside the truck and asked what the two men were doing. They told
Officer Contos that they had lost the keys to a Chevy pickup and were waiting for
a tow truck; the Chevy vehicle was in a parking lot an extensive distance away.
Rec. vol. I, doc. 59, at 2 (Dist. Ct. Order, filed Oct. 17, 2003) [hereinafter Dist.
Ct. Order].
Officer Contos testified that he sensed something didnt seem right after
the first encounter. Rec. vol. II, at 15-16 (Hrg on Motion to Suppress, dated
-2-

Sept. 18, 2003). He drove around the apartment complex and returned to the
parking lot approximately 20-30 seconds later. Mr. Dennisons truck, with its
engine and lights now on, had moved closer to the Chevy truck to be towed.
Officer Contos pulled up to the men again and got out of his patrol car, to further
investigate and to check and make sure [the Chevy was] their truck. Id. at 18.
Mr. Allen mentioned that he had been involved in a domestic and was wanting
to get the Chevy truck before his girlfriend came and damaged it. Id. at 19. After
hearing Mr. Allens explanation, Officer Contos remembered a recent police
bulletin to watch for a gold station wagon in the vicinity of the apartment
complex because the police wanted a driver or passenger for a domestic violence
incident. Though the men were in a gold truck with a cab rather than a gold
station wagon, Officer Contos concluded that Mr. Allen was the wanted suspect
because of his admitted involvement in a domestic and the mens proximity to
the area noted in the police bulletin.
Officer Contos, anticipating that Mr. Allen was probably going to get
arrested, requested identification from the two men. Id. at 20, 23-24. Mr.
Dennison produced a drivers license, from which Officer Contos determined that
Mr. Dennison had no outstanding warrants or other police alerts. Mr. Allen had
no identification, but Officer Contos obtained a warrant check upon his full name.
Officer Contos learned that Mr. Allen had four outstanding arrest warrants,
-3-

including a felony arrest warrant for a weapons violation. Officer Contos then
called for backup assistance, and Officers Joseph Wilson and Nancy Schwan
arrived shortly.
The officers ordered Mr. Allen to exit the truck, arrested him, and placed
him in the back seat of a police car away from Mr. Dennisons truck; Officers
Wilson and Schwan had their guns drawn during Mr. Allens arrest. The officers
then asked Mr. Dennison to step out of the drivers side because they considered
it dangerous to execute a search incident to Mr. Allens arrest if someone were
still inside. Mr. Dennison was told that he was not under arrest, but officers
performed a pat-down search and handcuffed him. According to Officer Contos,
these steps were taken because Mr. Allen was wanted on a weapons violation and
officer safety dictates that [officers] err on the side of caution. Id. at 30.
Mr. Dennison refused consent to search his truck, but officers believed that
they were authorized to perform a search incident to Mr. Allens arrest. When
Officer Wilson started searching the trucks cab, Officer Contos was standing
next to Mr. Dennison, who was handcuffed, near the rear of the truck on the
passengers side. Officer Contos testified that when Officer Wilson began the
search of the passenger compartment, Officer Schwan was getting ready, if she
hadnt already, to leave the scene with Mr. Allen to do the domestic violence
paperwork. Id. at 35.
-4-

Officer Wilson soon discovered a loaded shotgun on the back seat under a
blanket. After this discovery in the back seat, Officer Contos shined his
flashlight through a window of the topper shell and saw the vented barrel of a
machine gun partially exposed under a blanket inside the cargo bed. Id. at 38.
Officer Wilson next found a loaded handgun and drug paraphernalia in the front
and back seats. Officers then determined that they had probable cause to arrest
Mr. Dennison for drug and weapons charges and to conduct an inventory search
of the entire vehicle. Mr. Dennison was arrested and placed in the patrol car;
upon his arrest, officers impounded and inventoried the truck. After opening the
locked topper shell, officers recovered in the cargo bed the machine gun that
Officer Contos had earlier identified. A second machine gun was later found in a
canvas case in the back floorboard of the back seat. Together, officers found five
handguns, three rifles, three shotguns, and two machine guns in Mr. Dennisons
truck.
Both Mr. Allen and Mr. Dennison were indicted and charged with unlawful
possession of a machine gun and aiding and abetting its possession, in violation
of 18 U.S.C. 922(o), 924(a)(2), and 2. Mr. Dennison filed a motion to
suppress physical evidence and statements from the warrantless search. The
district court denied the motion. It concluded that (1) the second encounter
between Officer Contos and the two men was a lawful stop under Terry v. Ohio,
-5-

392 U.S. 1 (1968), and (2) the warrantless search was valid incident to Mr.
Allens arrest.
Mr. Dennison later pleaded guilty to the one-count indictment pursuant to a
conditional plea agreement allowing him to appeal the district courts denial of
his suppression motion. The district court sentenced Mr. Dennison to one month
of imprisonment, followed by a three-year term of supervised release that includes
eleven months of home detention. He timely appeals the district courts denial of
his motion to suppress.

II. STANDARD OF REVIEW

This court reviews de novo a district courts determination of the
reasonableness of a search and seizure under the Fourth Amendment. United
States v. Abdenbi, 361 F.3d 1282, 1287 (10th Cir. 2004). We look at the totality
of the circumstances in reviewing the denial of the motion to suppress. United
States v. Gay, 240 F.3d 1222, 1225 (10th Cir. 2001). Furthermore, we accept the
factual findings of the district court unless they are clearly erroneous, and view
the evidence in the light most favorable to the district courts determination.
United States v. Williams , 271 F.3d 1262, 1266 (10th Cir. 2001) (internal citation
omitted). Reviewing courts must also defer to the ability of a trained law
enforcement officer to distinguish between innocent and suspicious actions.
-6-

United States v. Santos, 403 F.3d 1120, 1124 (10th Cir. 2005) (quoting United
States v. McRae, 81 F.3d 1528, 1534 (10th Cir. 1996)).

III. DISCUSSION
According to Mr. Dennison, the district court committed two separate
errors when it denied his motion to suppress the two machine guns found in his
truck. First, Mr. Dennison argues that the district court erred in finding that
Officer Contos had reasonable suspicion to justify a Terry detention when he
approached Mr. Dennisons truck the second time after a brief initial encounter.
Second, Mr. Dennison contends that the district court erred when it concluded
that the warrantless search of Mr. Dennisons truck was justified as a search
incident to Mr. Allens arrest.
A.

Challenge to the second encounter

Mr. Dennison maintains that Officer Contos second encounter with Mr.

Dennison and Mr. Allen was an investigative detention not supported by

reasonable suspicion. A lawful investigative detention of limited scope and
duration does not require probable cause as long as the police officer has
reasonable suspicion that the person seized is engaged in criminal activity. Terry,
392 U.S. at 30-31. An officer making a Terry stop must be able to articulate
something more than an inchoate and unparticularized suspicion or hunch. The
-7-

Fourth Amendment requires some minimal level of objective justification for

making the stop. That level of suspicion is considerably less than proof of
wrongdoing by a preponderance of the evidence. United States v. Sokolow, 490
U.S. 1, 7 (1989) (internal citation and quotation marks omitted).
The district court determined that Officer Contos second encounter with
Mr. Dennison and Mr. Allen was a lawful investigative detention under Terry. It
noted that Officer Contos believed that something wasnt right after his first
encounter with the men, Dist. Ct. Order at 6, and the district court made several
factual findings in support of Officer Contos concern of criminal activity:
1.
2.
3.
4.
5.

It was 3:00 in the morning, an unusual time for citizens to be

waiting for a tow truck. Id.
Mr. Dennison and Mr. Allen were seated in [Mr. Dennisons]
Ford adjacent to an apartment parking lot which was the frequent
target for nocturnal car theft. Id.
The Ford did not have its lights or engine on [during the first
encounter], was situated a substantial distance from the Chevy
[truck to be towed], and the Chevy was not visible. Id.
During the first encounter, Mr. Dennisons truck was parked in
such a way that it was unlikely that it would have been visible
to the tow truck. Id.
When Officer Santos returned, the Ford had moved and had its
lights on and the engine running. Id.

The district court erred, according to Mr. Dennison, when it cited the
change of certain factors (e.g., his Ford truck being parked closer to the Chevy
truck, with its lights on and engine running, during the second encounter) as
further heightening Officer Contos suspicion. He further maintains that the first
-8-

four factors, neither individually nor in combination, give rise to a finding of

reasonable suspicion.
Even if each separate fact or observation leading to Officer Contos second
encounter is not by itself proof of any illegal conduct, we consider whether the
facts as a whole amount to reasonable suspicion. Sokolow, 490 U.S. at 8; see
also Terry, 392 U.S. at 22 (noting that a series of acts, each of them perhaps
innocent in itself, but which taken together warranted further investigation).
We agree with the district court that the officers hunch that something
wasnt right would not be sufficient by itself to support a finding of reasonable
suspicion. Here, several specific facts taken together, however, warranted the
additional investigation. Mr. Dennisons presence in a high-crime area is not,
standing alone, enough to provide reasonable suspicion, but it may be a
relevant contextual consideration in a Terry analysis. Illinois v. Wardlow, 528
U.S. 119, 124 (2000). [O]fficers are not required to ignore the relevant
characteristics of a location in determining whether the circumstances are
sufficiently suspicious to warrant further investigation. Id. The parties do not
dispute that, at 3 a.m., Mr. Dennison and Mr. Allen did not have keys to the
Chevy truck to be towed, were situated a substantial distance from the Chevy,
and the Chevy was not visible. Dist. Ct. Order at 6.
The Supreme Court has stated that, in cases where the conduct justifying
-9-

the stop was ambiguous and susceptible of an innocent explanation, Terry

recognized that the officers could detain the individuals to resolve the ambiguity.
Wardlow, 528 U.S. at 125. Viewing evidence in the light most favorable to the
district courts determination, the aggregate facts support Officer Contos
reasonable suspicion that the mens initial explanation was not complete and that
criminal activity was afoot. Officer Contos therefore could inquire, with the
second encounter, as to the identities of Mr. Dennison and Mr. Allen and validate
proof of the Chevy trucks ownership.
B.

Challenge to the search of Mr. Dennisons truck

The district court found that the warrantless search of Mr. Dennisons truck

was valid (1) incident to Mr. Allens arrest and (2) to ensure officer safety.
Although Mr. Allen had been removed from the scene, the exigency for
an immediate search remained. So long as Mr. Dennison remained at
the scene, and in view of the totality of the facts giving rise to Mr.
Allens arrest (one violent crime and one weapons violation), there were
serious and continuing concerns as to the safety of the officers based on
the possibility that there were weapons in the truck and that Mr.
Dennison had access to them.
Dist. Ct. Order at 10-11 (emphasis added). Officers could infer that Mr.
Dennison could present a risk to officer safety and take necessary safety
precautions. Id. at 11.
Mr. Dennison now challenges each of the governments rationales to
validate the warrantless search of his truck: (1) as a search incident to arrest; (2)
-10-

as a search justified by officer safety concerns; and (3) as a search in which

officers independently found evidence in plain view. 1
1.

Search incident to Mr. Allens arrest

The district court concluded that the search of the cab was valid incident to
the arrest of Mr. Allen. [W]hen a policeman has made a lawful custodial arrest
of the occupant of an automobile, he may, as a contemporaneous incident of the
arrest, search the passenger compartment of that automobile. New York v. Belton,
453 U.S. 454, 460 (1981) (emphasis added). This court has concluded, however,
that [a] warrantless search incident to arrest is not valid if it is remote in time or
place from the arrest. United States v. Lugo, 978 F.2d 631, 634-35 (10th Cir.
1992) (quoting Chimel v. California, 395 U.S. 752, 764 (1969)). A search
The government principally contended at oral argument that we affirm the
district courts decision under the plain view doctrine. Under this doctrine, we
cannot validate a warrantless seizure of the machine gun in the topper shell unless
Officer Contos was lawfully in a position from which to view the object seized
in plain view. United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994).
Officer Contos was standing with Mr. Dennison near the back of the truck so that
Officer Wilson could search the cab. However, the facts before us suggest that
Officer Contoss plain view only occurred because of and after Officer
Wilsons search of the passenger compartment. Therefore, we must first
determine whether Officer Wilsons initial intrusion to search the cab was
valid. See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971).
We affirm the district courts decision on different grounds. See Medina v.
City & County of Denver, 960 F.2d 1493, 1495 n.1 (10th Cir. 1992) (We are free
to affirm a district court decision on any grounds for which there is a record
sufficient to permit conclusions of law, even grounds not relied upon by the
district court.).
1

-11-

incident to arrest is unlawful when a suspect is arrested, removed from the scene,
and en route to the police station when the search of the arrestees passenger
compartment begins. Id. at 635.
Mr. Dennison and the government disagree about Mr. Allens location
when the search of Mr. Dennisons truck began. When asked about Mr. Allens
location as the search of the trucks cab started, Officer Contos responded
ambiguously: Officer Schwan was had Mr. Allen; and she was getting ready,
if she hadnt already, to leave to her station to do the domestic violence
paperwork on Mr. Allen. Rec. vol. II, at 35. Though the district court validated
the search as one incident to Mr. Allens arrest, it did not resolve the dispute
about his location when the search began. See Dist. Ct. Order at 10 (It is . . .
arguable that . . . the police car had left the scene [with Mr. Allen] before the
search.); id. (Although Mr. Allen had been removed from the scene, the
exigency for an immediate search remained.).
When factual issues are involved in deciding a motion, the court must
state its essential findings on the record. F ED . R. C RIM . P. 12(d). While
helpful to appellate review, Rule 12[(d)] does not require detailed findings of
facts as long as the essential basis of the courts decision is apparent. United
States v. Toro-Pelaez, 107 F.3d 819, 824 (10th Cir. 1997). In light of Lugo, the
district court needed to make a finding as to Mr. Allens location when the search
-12-

began to validate it as one incident to his arrest. Because the district court
declined to resolve this issue, and we cannot find facts, we therefore cannot
validate the search of the truck under this rationale.
2.

Officer safety

The government also argues that the search of Mr. Dennisons cab was
valid because of officer safety concerns and the exigencies in which the search
occurred. Specifically, we analyze whether officers were justified to perform a
protective sweep of Mr. Dennisons passenger compartment.
a. Applicable Law
Officers can conduct a protective search of a vehicles passenger
compartment for weapons during an investigative detention when officers have a
reasonable belief that a suspect poses a danger. In Michigan v. Long, 463 U.S.
1032, 1036 (1983), officers stopped to investigate a car that had swerved
erratically into a ditch. The vehicles only occupant met the officers near the rear
of the car and, after a repeated request, produced his license. The driver did not
respond to a repeated request for the vehicle registration, and the officers testified
that the driver appeared to be under the influence of something. When the driver
began walking back toward the open door of his car, officers followed and
observed a hunting knife inside the car. Officers then conducted a Terry
protective pat-down, revealing no weapons. Another officer shined a flashlight
-13-

into the vehicles interior to search for additional weapons, leading to a drug
discovery.
The Supreme Court validated the protective search of the drivers passenger
compartment under the principles articulated in Terry:
[T]he search of the passenger compartment of an automobile, limited to
those areas in which a weapon may be placed or hidden, is permissible
if the police officer possesses a reasonable belief based on specific and
articulable facts which, taken together with the rational inferences from
those facts, reasonably warrant the officers in believing that the
suspect is dangerous and the suspect may gain immediate control of
weapons.
Id. at 1049 (quoting Terry, 392 U.S. at 21).
More generally, courts have noted the potential dangers of vehicle stops.
This court recognized that
[a]n officer in todays reality has an objective, reasonable basis to fear
for his or her life every time a motorist is stopped. Every traffic stop,
after all, is a confrontation. The motorist must suspend his or her plans
and anticipates receiving a fine or perhaps even a jail term. That
expectation becomes even more real when the motorist or a passenger
knows there are outstanding arrest warrants or current criminal activity
that may be discovered during the course of the stop.
United States v. Holt, 264 F.3d 1215, 1223 (10th Cir. 2001) (en banc).
Furthermore, the fact that there is more than one occupant of the vehicle
increases the possible sources of harm to the officer. Maryland v. Wilson, 519
U.S. 408, 413 (1997).
Officer safety is both legitimate and weighty, Pennsylvania v. Mimms,
-14-

434 U.S. 106, 110 (1977), and the Supreme Court has identified contexts where
the public interest is such that neither a warrant nor probable cause is required,
Maryland v. Buie, 494 U.S. 325, 331 (1990). Officers may take steps to protect
themselves and others, provided the measures are not too intrusive and the
governments strong interest in officer safety outweighs the motorists interests.
Holt, 264 F.3d at 1221. For example, an officer making a traffic stop may order
both the driver and passengers to exit the vehicle pending completion of the stop
because the additional intrusion on the passenger is minimal. Wilson, 519 U.S.
at 414-15; Mimms, 434 U.S. at 111. A police officer may also perform a
patdown of a driver and any passengers upon reasonable suspicion that they may
be armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 118 (1998)
(referencing Terry, 392 U.S. at 30-31).
Aside from precedent governing officer safety concerns, we must also
examine the Supreme Courts relevant case law addressing individualized
suspicion and permissible inferences of a common enterprise between
occupants of a vehicle. Mr. Dennison had no prior criminal record but was
detained late at night in a high-crime area in conjunction with the arrest of a
passenger with multiple arrest warrants.
In Ybarra v. Illinois, 444 U.S. 85, 91 (1979), the Supreme Court warned
that a persons mere propinquity to others independently suspected of criminal
-15-

activity does not, without more, give rise to a probable cause to search that
person. Officers in Ybarra had a warrant to search a tavern and its proprietor
but also searched customers in the tavern. The Supreme Court invalidated the
search of Mr. Ybarra, a customer, because the government could not support his
patdown by a reasonable belief that he was armed and presently dangerous. Id.
at 92-93. During the daylight search of the tavern, officers did not recognize Mr.
Ybarra as a person with criminal history and did not have reason to believe that
he would assault them; he acted generally in a manner that was not threatening.
Id. at 93. The requirement in Ybarra for probable cause cannot be undercut or
avoided by simply pointing to the fact that coincidentally there exists probable
cause to search or seize another and or to search the premises where the person
may happen to be. Id. at 91. See also United States v. Di Re, 332 U.S. 581, 587
(1948) (rejecting the argument that a person, by mere presence in a suspected
car, loses immunities from search of his person to which he otherwise would be
entitled).
Maryland v. Pringle, 540 U.S. 366 (2003), however, distinguishes Ybarra
and Di Re and allows officers under certain circumstance to find probable cause
of a joint illegal enterprise absent particularized suspicion. In Pringle, an officer
stopped a car for speeding at 3:16 a.m.; three occupants were in the car. When
the driver opened the glove compartment to retrieve a vehicle registration, the
-16-

officer saw a large amount of rolled-up money. The driver consented to a search
of the car, and officers found $763 in the glove compartment and several bags
containing cocaine elsewhere. The three occupants offered no information about
ownership of the drugs and money, and the officer arrested all three. The
Supreme Court considered it an entirely reasonable inference that any or all
occupants knew of or had control of the cocaine. Id. at 372. The Supreme Court
went on to distinguish Ybarra because the three Pringle occupants were in a
relatively small automobile, not a public tavern. Id. at 373. Furthermore, it
was reasonable for the officer to infer a common enterprise among the three
men, as the quantity of drugs and money suggested a likelihood of drug dealing.
Id.
b. Analysis
The officer safety concerns at issue with Mr. Dennison most closely
resemble those in Long. Here, officers had probable cause to arrest Mr. Allen and
to consider him armed and dangerous, but the government cannot demonstrate that
Mr. Allen remained on the scene when the search of Mr. Dennisons truck began.
At the time of Mr. Allens arrest, officers had no probable cause to arrest Mr.
Dennison. Therefore, we apply Longs reasonableness test to the removal of Mr.
Dennison from his vehicle: did officers have a reasonable belief, based on
specific and articulable facts and rational inferences from those facts, to consider
-17-

Mr. Dennison dangerous and able to access weapons, thus justifying a protective
sweep of his passenger compartment? [T]he issue is whether a reasonably
prudent man in the circumstances would be warranted in the belief that his safety
or that of others was in danger. Terry, 392 U.S. at 27.
We initially note that, prior to Mr. Allens arrest and the truck search,
Officer Contos had completed a background check on Mr. Dennison and
discovered no arrest warrants. Mr. Dennison also contends that he (1) was
cooperative with officers, (2) presented identification when requested, (3) did not
challenge or threaten officers when Mr. Allen was arrested, and (4) remained nonconfrontational and cooperative even after he was removed from his truck.
Nonetheless, in light of the totality of circumstances, we conclude that officers
did have reasonable and articulable suspicion of Mr. Dennisons threat to officer
safety to justify the protective sweep of his trucks passenger compartment.
First, officers here had reason to believe that weapons may be found in Mr.
Dennisons truck. Prior to Mr. Allens arrest, officers knew that Mr. Allen had
about four arrest warrants, including a felony arrest warrant for a weapons
violation, and, importantly, admitted involvement with a domestic dispute
earlier that evening. Rec. vol. II, at 26-27. Our court has recognized that
[r]esort to a loaded weapon is an increasingly plausible option when a motorist
or a passenger knows there are outstanding arrest warrants or current criminal
-18-

activity that may be discovered during the course of the stop. Holt, 264 F.3d at
1223. An officer on a routine stop never knows in advance which motorists have
that option by virtue of possession of a loaded weapon in the car. Id.
Second, we can easily distinguish this case from Ybarra, where the
customer only happened to be at the bar when the warrant was conducted, because
Mr. Allen and Mr. Dennison had a considerably stronger connection: Officer
Contos found both men in Mr. Dennisons truck in an apartment complex lot at
3:00 a.m., allegedly waiting for a tow truck. [A] car passengerunlike the
unwitting tavern patron in Ybarrawill often be engaged in a common enterprise
with the driver, and have the same interest in concealing the fruits or the evidence
of their wrongdoing. Wyoming v. Houghton, 526 U.S. 295, 304-05 (1999). Like
the vehicle occupants in Pringle, Mr. Dennison and Mr. Allen were seated in a
relatively small automobile, 540 U.S. at 373, where either individual could
access weapons inside the passenger compartment. Officers therefore could
reasonably infer a common purpose or enterprise between the two men and
believe that Mr. Dennison knew of Mr. Allens arrest warrants and would want to
conceal evidence of any wrongdoing. Importantly, we also note that Di Re,
Ybarra, and Pringle concerned probable cause to arrest another vehicle occupant;
here, we need only determine whether officers had reasonable suspicion of Mr.
Dennisons threat to officers to justify a protective sweep.
-19-

Third, the detention, arrest, and search occurred late at night in a highcrime area, and officers could not clearly tell whether Mr. Dennison had weapons
in the vehicle within reach. While each factor independently does not establish
reasonable suspicion, officers can consider these characteristics among the
relevant contextual considerations in assessing threats to officer safety.
Wardlow, 528 U.S. at 124. In United States v. Shareef, 100 F.3d 1491, 1506
(10th Cir. 1996), officers stopped three vehicles at 3:30 a.m. and reasonably
suspected that one occupant was armed and dangerous. This court concluded that
officers had a reasonable belief that the [other vehicles occupants] posed a
danger and found it relevant that (1) the defendants were traveling together and
(2) [p]erhaps most important, the police confronted the defendants in their cars,
at night. Id. Like the officers confronting Mr. Dennison at night, the officers in
Shareef could not tell whether the defendants had weapons on their persons or
within reach. Id.
Fourth, we acknowledge that Mr. Dennison was handcuffed near the back
of his truck when Officer Wilson began searching the trucks cab, but this court
has held that the fact that the detainee is under the control of officers does not
eliminate the risk that he will gain access to a weapon. United States v. Palmer,
360 F.3d 1243, 1246 (10th Cir. 2004) (citing Long, 463 U.S. at 1051-52).
Moreover, though the dazed suspect in Long was alone and in custody of two
-20-

armed officers near the rear of his vehicle, the Supreme Court concluded that a
Terry suspect in Longs position [might] break away from police control and
retrieve a weapon from his automobile. Long, 463 U.S. at 1051.
Fifth, Mr. Dennison contends that officer testimony did not reflect safety
concerns during his detention. This court, though, has reasoned that the test of
officer safety is objective rather than subjective, and therefore the officer need
not personally be in fear. See United States v. Neff, 300 F.3d 1217, 1222 (10th
Cir. 2002) (rejecting the defendants argument that no grounds for a Terry frisk
existed because there was no evidence in the record that the officers in fact
feared for their safety).
Finally, we recently concluded under facts analogous to Mr. Dennisons
search that officers had reasonable suspicion of potential danger to justify a
detention. In United States v. Maddox, officers were serving an arrest warrant on
a narcotics trafficker at a residence in a high-crime area. 388 F.3d 1356, 1359-60
(10th Cir. 2004). The defendant arrived at the residence and was detained for
thirty minutes in front of the mobile home until officers completed the in-house
arrest of the trafficker. We upheld the temporary, protective detention of the
defendant on officer safety grounds because (1) officers were assisting in the
arrest of a narcotics trafficker inside the residence; (2) the officer detaining the
defendant outside knew the residence was in a dangerous location; (3) it was
-21-

getting dark; (4) the officer outside the residence was detaining eight individuals
who had driven up to the scene of the arrest; and (5) the defendant had
mysteriously reached under the seat of his truck as he pulled up into the driveway.
Id. at 1366-67.
Like Maddox, officers here were assisting in the late-night arrest of a
potentially dangerous suspect in a high-crime area. Though occupants in Mr.
Dennisons truck did not outnumber officers, the scene remained dangerous; at
3:00 a.m., officers could not see inside Mr. Dennisons truck, and they knew that
Mr. Allen had multiple arrest warrants. Because a Long investigation at close
range requires an officer to make a quick decision as to how to protect himself
and others from possible danger, the Supreme Court does not require that
officers adopt alternate means to ensure their safety in order to avoid the intrusion
involved in a Terry encounter. Long, 463 U.S. at 1052 (quoting Terry, 392 U.S.
at 24, 28); see also Thornton v. United States, 124 S. Ct. 2127, 2137 (2004)
(Scalia, J., concurring) (When officer safety or imminent evidence concealment
or destruction is at issue, officers should not have to make fine judgments in the
heat of the moment.).
Viewing evidence in the light most favorable to the district courts
determination, we conclude that officers had a reasonable suspicion that Mr.
Dennison was dangerous and able to gain immediate control of weapons. This
-22-

reasonable belief of Mr. Dennisons threat to officer safety validated a protective

sweep of the trucks cab. See Long, 463 U.S. at 1049. Officer Wilson testified
that he discovered two rifles underneath a blanket in the back seat within a few
seconds of starting the search of the passenger compartment. Rec. vol. II, at 75.
He soon came upon additional handguns, rifles, and drug paraphernalia concealed
in the cab. Despite the officers belief that they were conducting a search
incident to Mr. Allens arrest, Officer Wilson found these items within the
parameters of a protective sweep, in the passenger compartment of the truck
where a weapon may be placed or hidden. See Long, 463 U.S. at 1049. These
quick discoveries provided probable cause to arrest Mr. Dennison on drugs and
weapons charges and set in motion the impoundment, inventory search, and
inevitable discovery of evidence that Mr. Dennison seeks to suppress.

IV. CONCLUSION
We AFFIRM the district courts denial of Mr. Dennisons motion to
suppress.

-23-