NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

No. 05-4211

UNITED STATES OF AMERICA

v. R O D N E Y KEMP,

Appellant

On Appeal from the United States District Court

f o r the District of New Jersey

(D .C . Criminal No. 04-657)

D is tric t Judge: Honorable Freda L. Wolfson

Submitted Pursuant to Third Circuit LAR 34.1(a)

D e c em b e r 13, 2006

B e f o re : FUENTES and VAN ANTWERPEN, Circuit Judges, and PADOVA,*

District Judge.

(F ile d January 11, 2007)

OPINION OF THE COURT

* T h e Honorable John R. Padova, District Judge of the Eastern District of Pennsylvania,

s ittin g by designation.

P A D O V A , District Judge.

A p p e lla n t Rodney Kemp was convicted by a jury on May 18, 2005, of one count of p o s s e s s io n of a firearm by a convicted felon in violation of 18U.S.C. § 922(g)(1) & (2). On S e p te m b e r 1, 2005, the District Court sentenced Kemp to a term of 29 months of im p ris o n m e n t. On appeal, Kemp contends that the District Court erred in denying his pretrial m o tio n to suppress evidence resulting from an alleged illegal search and seizure. We have ju ris d ic tio n pursuant to 28U.S.C. § 1291. We will affirm.

I.

O n February 7, 2004, at approximately 1:05 a.m., Mark Buehler, a police officer with t h e Cherry Hill Police Department for almost 10 years, was on routine patrol when he o b s e rv e d a gold-colored Lincoln Town Car, driven by Kemp and traveling east-bound on P a rk Boulevard in Cherry Hill Township. According to Buehler, he was approximately 30 to 40 yards directly behind Kemp's car when he noticed that one of its tail lights was broken.

B u e h ler recognized that a cracked tail light is a violation of the New Jersey Motor Vehicle C o d e . Kemp, however, denies that his tail light was cracked or broken. Buehler initiated a tra f f ic stop and Kemp's car came to a stop at the Parkview Motel. Buehler testified that d u rin g the previous 10 years, he witnessed multiple arrests for prostitution, narcotics, and w e a p o n offenses at the Parkview Motel, and that he had a heightened sense of awareness as a result of being in a high-crime area that was not well-lit, and because the location was not e a sily accessible to other patrol vehicles. Buehler testified that as he was exiting his vehicle, h e observed Kemp slump down onto the passenger seat at least two or three times, and he n o tic e d two women seated in the back seat of Kemp's vehicle.

Sergeant Kevin Wright, a police officer with the Cherry Hill Police Department for 1 4 years, observed Buehler initiate the traffic stop of Kemp's car and pulled behind Buehler's v e h ic le . Wright testified that he also observed that Kemp's driver's side tail light was c ra c k ed .

Buehler approached Kemp's car on the driver's side, and Wright approached on the p a ss e n g e r side. Buehler asked Kemp for his license, registration, and insurance d o c u m e n ta tio n . Buehler testified that he had difficulty seeing the front seat and the floor of K e m p ' s car because there was trash and paperwork throughout the car's interior, and because K e m p was wearing a large jacket and kept turning to his side. Buehler further testified that w h e n Kemp turned to the side, he could not see Kemp's hands, and did not know what Kemp w a s doing. Buehler instructed Kemp to stop moving two or three times because he was c o n c ern e d for his safety and wanted to make sure that Kemp was not trying to conceal so m e th in g . According to Buehler and Wright, Kemp initially complied with each request, b u t then went back to what he was doing. Wright also testified that Kemp was extremely a n x io u s while he was seated in his car, that he kept turning around and checking something to his side, that he adjusted something in his pocket at least three times, and that he kept l o o k in g down to the pocket area on his jacket. Buehler asked Kemp the names of the two w o m e n in the back seat. Kemp was unable to answer. Buehler testified that, during this q u e stio n in g , Kemp was argumentative and would not listen to his instructions, and the tone o f Kemp's voice became increasingly loud. However, Kemp testified that he did not raise h is voice at the officers. Buehler testified that because of Kemp's erratic behavior and nonc o m p lia n c e with his questioning, he instructed Kemp to step out of the vehicle.

According to Buehler, as Kemp stepped out of the car, Kemp stuck his hand into his p o c k e t. Buehler testified that he ordered Kemp to take his hand out of his pocket and that in itia lly Kemp did so. Kemp, however, testified that his hands were at his side when he e x ited the car, that he did not "go for [his] pocket" at any time, and that the police officer did n o t tell him to keep his hands away from his pockets. Buehler testified that Kemp began to ta k e several steps towards him and attempted to put his hand back in his pocket. Buehler a ls o observed a black convenience-store style bag in Kemp's pocket. Buehler testified that h e had prior knowledge that such bags are used for narcotics and other criminal contraband.

W rig h t also testified that he observed a bulge, consistent with a weapon, in Kemp's jacket p o c k e t, and a black plastic convenience-store bag coming out of the jacket pocket. Wright te stif ie d that his concern for his safety was very high due to Kemp's actions, his apparent f o c u s on his jacket pocket, and his agitation. Wright observed Kemp attempt to place his h a n d into the jacket pocket containing the bulge. Wright testified that he told Kemp to keep h i s hands out of his pockets, but that Kemp immediately put his hand in his pocket, and re p lie d that "there is nothing in here." A c c o rd in g to Buehler, Wright then approached Kemp from behind, and reached f o rw a rd to touch Kemp's pocket. Kemp then "clinched down on the pocket with his elbow," a n d "lower[ed] his stance in an aggressive manner." Wright then grabbed Kemp's right wrist a n d pulled Kemp's hand away from the pocket, while Buehler grabbed Kemp's left wrist.

Buehler testified that Kemp struggled and kicked, and attempted to reach back into his jacket p o c k e t. Kemp denies that he kicked, pushed, or touched the officers in any way. Buehler an d Wright, while maintaining control of Kemp's arms, brought him to the rear of the car.

W rig h t testified that Kemp did not willingly go to the rear of the car, and that Kemp was e x tre m e ly agitated and screaming. Wright testified that Officer Timothy Tedesco arrived at th e scene, and upon Wright's instruction, removed the object from Kemp's right jacket p o c k e t. Tedesco informed Buehler and Wright that it was a gun. Kemp was placed under a rre st and transported to the Cherry Hill Police Station. Kemp's car was towed and im p o u n d e d .

K e m p testified that, prior to picking up the two women who were in his car at the time o f this incident, he gave a ride to two men who left a bag on the back seat of his car. Kemp f u rth e r testified that he put the bag into his pocket without looking into it. According to K e m p , he provided Buehler with his documentation, and then proceeded to wait in the car f o r 10 to 15 minutes, until the police officers asked him to exit the car and walk to the back o f the vehicle. Kemp testified that the police officers threw him on the car and went into his p o c k e t.

On February 7, 2005, Kemp filed a motion to suppress evidence seized from him at th e time of his arrest. The District Court held suppression hearings on March 3, 2005 and A p r il 22, 2005. Kemp's counsel acknowledged during the evidentiary hearings that there w e re no pictures or records indicating the condition of Kemp's car at the time of the incident.

T h e District Court denied the motion on May 3, 2005. A jury convicted Kemp of possession o f a weapon by a convicted felon on May 18, 2005. This appeal followed.

II.

T h is Court reviews the District Court's denial of a motion to suppress for clear error as to the underlying factual findings and exercises plenary review of the District Court's a p p lic a tio n of the law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002) (c itin g United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998)). Consequently, a district c o u rt's conclusions regarding reasonable suspicion are subject to plenary review. United S ta te s v. Robertson, 305 F.3d 164, 167-68 (3d Cir. 2002).

III.

K e m p first argues that the police lacked probable cause to conduct a stop of his v e h ic le and, therefore, any evidence obtained as a result of this unlawful stop should be s u p p re ss e d . Kemp notes that the Government's justification for the stop was the supposed p rese n ce of a broken tail light. However, Kemp argues that Buehler's assertion that Kemp's ta il light was broken was not corroborated by any other evidence, such as photographs of the v eh icle, to show that the tail light was indeed broken. Kemp further argues that Buehler's te stim o n y, viewed as a whole, lacks credibility. Therefore, Kemp contends that the District C o u rt erred when it credited Buehler's testimony and accepted as fact that the tail light was b ro k e n .

The question of whether the tail light was broken is a question of fact which we re v iew for clear error. Perez, 280 F.3d at 336. Under the clear error standard, we will u p h o l d a district court's factual findings unless they "(1) [are] completely devoid of m i n im u m evidentiary support displaying some hue of credibility, or (2) bear[] no rational re la tio n s h ip to the supportive evidentiary data." United States v. Antoon, 933 F.2d 200, 204 (3 d Cir. 1991) (quoting Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972)). The District C o u rt's factual finding that Kemp's tail light was broken is supported by the evidence. The D is tric t Court properly credited the testimony of Buehler, which was corroborated by the te s tim o n y of Wright. See United States v. Voight, 89 F.3d 1050, 1080 (3d Cir. 1996) (ho lding that it is not the role of the appellate courts to weigh the credibility of witnesses).

T h e re f o re , Kemp's contention that the traffic stop of his vehicle was unlawful due to a lack o f probable cause is without merit.

K e m p next argues that, even if the stop was lawful, the police had no right to conduct a Terry frisk as they lacked grounds to believe that he was armed and dangerous. In Terry v . Ohio, 392 U.S. 1 (1968), the Supreme Court created a narrowly drawn exception to the ru le that warrantless searches are presumptively unreasonable by allowing a police officer to conduct a brief investigatory search without a warrant. A police officer may conduct such a stop "only if the officer can `point to specific and articulable facts which, taken together w ith rational inferences from those facts, reasonably warrant that intrusion.'" Johnson v. C a m p b e ll, 332 F.3d 199, 205 (3d Cir. 2003) (quoting Terry, 392 U.S. at 21). The Court also re c o g n iz e d in Terry that an officer making a reasonable investigatory stop should have the o p p o rtu n ity to protect himself from attack by a hostile suspect. Adams v. Williams, 407 U.S.

1 4 3 , 146 (1972) (citing Terry, 392 U.S. at 24). Therefore, when making a Terry stop, an o f f ic e r is permitted to make a limited protective search for concealed weapons when the in d iv id u a l gives the officer reason to believe he or she may be armed and dangerous. Id.

(citing Terry, 392 U.S. at 30).

B u e h le r and Wright had reasonable suspicion that Kemp was armed and dangerous, a n d , therefore, they were justified in conducting a protective search for weapons. Buehler a n d Wright pointed to specific and articulable facts, which taken together with rational in f e re n c es from these facts, reasonably warranted the protective search. The traffic stop o c c u rre d in a high-crime area that was not well-lit and not easily accessible to other patrol v e h ic le s. Buehler observed Kemp slump down onto the passenger seat at least two or three tim e s after he pulled over Kemp's vehicle. Kemp kept turning to his side. Kemp, though he in itia lly followed Buehler's commands to stop moving, continued moving to his side, was a rg u m e n ta tiv e , and became increasing loud. Kemp put his hand in his jacket pocket after he s te p p e d out of the car and, although he removed it when asked, he stepped toward Buehler a n d put his hand back in his jacket pocket. In response to Wright's demand that Kemp keep h is hands out of his pockets, Kemp immediately put his hand in his pocket and replied, "there is nothing in here," which the officers knew was untrue based on their observations. Under th e totality of these circumstances, there was reasonable suspicion that Kemp was armed and d a n g e ro u s , and therefore, Buehler and Wright were justified in conducting a protective s e a rc h for weapons.

Finally, Kemp argues that if the police had authority to conduct a protective weapons s e a rc h , the police exceeded the permissible scope of a such a search and, instead, conducted a full search and seizure. Kemp argues that the officers exceeded the scope of Terry by f o rc ib ly restraining him, removing him to the rear of the car, and reaching into his pocket to re m o v e an object without first conducting a pat-down of the outer layer of his clothing.

During a Terry stop, officers may take additional steps that are "reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop." U n ite d States v. Hensley, 469 U.S. 221, 235 (1985). Buehler and Wright acted in a re a so n a b le manner in using a moderate amount of force to physically restrain Kemp so that th e y could continue their investigatory stop because they reasonably suspected Kemp was a rm e d ; Kemp repeatedly disobeyed orders from the officers to keep his hands in view and n o t to reach into his jacket pocket; and, when Wright attempted to conduct a pat-down, Kemp to o k a defensive stance and clenched down on the pocket where the officers suspected a w e a p o n to be located.

A d d i tio n a lly, the officers did not exceed the scope of Terry when Tedesco reached in to Kemp's pocket. A search conducted pursuant to a Terry stop must be limited in scope to its protective purposes. Adams, 407 U.S. at 146. Generally, a protective search consists o f a pat-down of the exterior clothing of a detained individual. Terry, 392 U.S. at 21; Sibron v . New York, 392 U.S. 40, 65 (1968) (noting that protective searches will typically be c o n f in e d to "a limited patting of the outer clothing of the suspect for concealed objects which m ig h t be used as instruments of assault"). However, the Supreme Court has also held that, in the context of a Terry stop, a police officer's reaching into the particular spot where a gun w a s thought to be hidden constituted a limited intrusion designed to insure the officer's s a f ety and was reasonable. Adams, 407 U.S. at 148. In Adams, the police officer, in the p ro c e s s of conducting a Terry stop, reached into a car and removed a gun from an in d iv id u a l's waistband. Id. Here, the police officers had a reasonable suspicion that Kemp w a s armed and that the weapon was located in Kemp's right jacket pocket. As in Adams, ra th e r than conducting a full pat-down, the officers conducted a more limited search by going d ire c tly to the area that they reasonably suspected contained a weapon. Consequently, r e a c h in g into Kemp's pocket to retrieve what the officers suspected to be a weapon was a p e rm iss ib le Terry search, and the officers' conduct did not violate the Fourth Amendment.

F o r the foregoing reasons, we will affirm Kemp's conviction.