December 3, 2009
FREDERICK RICARDO GERMANY, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CMD-25615-07) (Hon. John H. Bayly, Jr., Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Argued May 28, 2009
Before THOMPSON, Associate Judge, and TERRY and SCHWELB, Senior Judges.
After a bench trial, appellant Frederick Ricardo Germany was convicted of unlawful possession of a controlled substance (cocaine), see D.C. Code § 48-904.01(d) (2001), the court having denied his motion to suppress the tangible evidence. The evidence was found by a Metropolitan Police Department ("MPD") officer who frisked appellant for weapons when officers found him on the front porch of a house where officers had arrived to execute a premises search warrant. Appellant seeks reversal of his conviction on the ground that the pat-down search violated his rights under the Fourth Amendment. We conclude that the trial court did not err in denying the suppression motion, and we therefore affirm the judgment of conviction.
On November 1, 2007, MPD Detective Kevin Copeland obtained a search warrant that authorized a search of a suspected "crack house," a private residence located in the 5000 block of Bass Place, S.E. The warrant authorized a search for, inter alia, "crack cocaine, narcotics paraphernalia, . . . firearms [and] weapons . . . ." The affidavit submitted in support of the application for the search warrant, which the court admitted into evidence at the suppression hearing, contained the following factual background:
[Confidential Source #1 ("CS#1")] was provided with an amount of advance [MPD] funds and instructed to attempt to purchase illicit drugs from within the [Bass Place, S.E., house]. While under law enforcement constant observation, CS#1 walked to the front door of [the house] and was met by a black female who was sitting on the front of the porch, the black female escorted CS#1 inside . . . . A short time later CS#1 exited the premises and responded directly to the Affiant [Detective Copeland] . . . CS#1 delivered several clear ziplocks containing a white rocklike substance to the Affiant, a portion of which subsequently field-tested positive for cocaine. CS#1 stated that (IT) had purchased the white rocks from a black female inside of [the house].
At the suppression hearing, two MPD officers described the execution of the search warrant. Detective Copeland testified that after dark on November 2, 2007, around 8 p.m., "maybe about ten" MPD officers, wearing police vests, arrived at the house to execute the warrant. The door to the house was "already open" and Detective Copeland "could see that everybody was pretty much outside on the porch." More specifically, Detective Copeland testified, there were approximately seven people on the porch, including appellant, and two children and one female adult were inside the house. Police placed each of the people on the porch in "flexicuffs" (plastic handcuffs) "for the officers' safety and security."*fn1
Detective Copeland acknowledged that when appellant was "handcuffed and placed on his stomach face down on the porch," police "had no indication that [appellant] was involved in any illegal activity" and no information that he was an owner or occupant of the house. In response to defense questioning, Detective Copeland testified that he did not know whether appellant had money in his hand when police arrived on the scene. He agreed that "the only connection [appellant] had to this search warrant was he was on the porch with other people when officers arrived to execute the warrant." The entire search took about thirty-five to forty-five minutes.
Detective Lorenzo James was one of several officers present to assist with the search warrant. He testified that when MPD officers arrived on the scene, it was dark and there were "a lot of people on the front porch." Detective James was "outside with some of the other detectives, detaining people that [were] on the porch." Approximately six people were on the porch.
"[E]verybody . . . on the porch was instructed to get down" on the porch. Everyone complied, and then they all were "placed in flexicuffs or handcuffs for officers' safety and their safety while [police] were executing the warrant." Police then did a "safety patdown" of everyone on the porch, including appellant, who was lying on his stomach. When Detective James, who had his gun drawn, performed a pat-down of appellant, the detective felt, in appellant's right front pants pocket, what he could tell (from the shape and from his years of experience in narcotics) was a four- or five-inch-long crack pipe. When Detective James rolled appellant over to complete the pat-down, "a plastic bag that contained white powder substance . . . fell out of" the right pocket of appellant's jacket, which the detective described as a "waist-length coat." Detective James retrieved the crack pipe when he rolled appellant over, but stated that he "would have still rolled [appellant] over even if [the crack pipe] wasn't on him" because otherwise he could not do the "full patdown." Asked on cross-examination whether appellant had done anything to raise Detective James's suspicions "relative to everyone else that was there at the time," Detective James responded, "No . . . [appellant] was real calm." Appellant was put in flexicuffs along with everyone else for "officers' safety, when [the officers are] executing a search warrant and that amount of people [is] at a location." Detective James had no indication that appellant was armed or dangerous when he arrived at the location, and had no information that appellant lived in or owned the house, but explained that "when we, as police officers, execute warrants, we tend to treat . . . people to be there to be armed and dangerous, could be armed and dangerous." Detective James could not recall whether appellant had any money in his hand.
Appellant Germany was the sole witness for the defense at the suppression hearing. He testified that he was on the porch of a friend's house, along with about seven or eight other people, "hanging out," "drinking and things like that," and celebrating "somebody's birthday." The other people were "younger people," while appellant was 47 years old. Appellant stated that just as the police arrived, he had cash in his hand and was "getting ready to leave off the porch." When police told him to "freeze" and asked what he had in his hand, he told them that he had money in his hand because he was headed toward the ice cream truck that was in front of the house to buy some chicken wings. An officer who had his gun drawn (not Detective James) made him return to the porch. The owner of the house was at the ice cream truck, looking at what was happening to her house. The officer who made appellant return to the porch patted appellant down, though "not really good . . . like he was patting for guns or weapons . . . ." Detective James took the money from appellant's hand, counted it, and put it in appellant's left back pocket, then put plastic cuffs on appellant and told him to lie down on the porch.*fn2 Appellant testified that he "kept asking for the search warrant" and that Detective James came to pat appellant down again because appellant "was the one asking for the search warrant." Four or five officers put plastic cuffs on everyone, patted everyone down, and then made them all lie down on the porch. There was a girl next to appellant and a man next to her.*fn3 Police made the owner lie down on the actual ground and put "real" handcuffs on her. A woman and children were in the house; the police let them come out of the house and did not pat them down while they were on the porch.
The trial court incorporated the motions hearing testimony into the trial. At the conclusion of all the testimony, the trial court denied the motion to suppress and found appellant guilty of cocaine possession. The court specifically credited the testimony of Detective James and found that when police arrived to execute the search warrant, they saw a "small crowd" congregated at the front of the house, did not know "who is the host and who is the guest" or who resided there, and, seeing people wearing coats in which weapons could easily be concealed, patted everyone down almost contemporaneously with handcuffing them, to ensure safety.
Appellant argues that police lacked a reasonable, articulable suspicion that he was armed or dangerous, and that it therefore was constitutionally impermissible for Detective James to perform the pat-down search. Accordingly, appellant contends, the trial court erred in denying his motion to suppress the cocaine, which police would not have found but for the (allegedly) unlawful search. In reviewing a trial court's ruling on a motion to suppress tangible evidence, "the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court's ruling." In re T.H., 898 A.2d 908, 912 (D.C. 2006) (citation omitted). "We must accept the trial judge's findings of evidentiary fact and his resolution of conflicting testimony," reviewing them only for clear error. See Brown v. United States, 590 A.2d 1008, 1020 (D.C. 1991). However, we are not limited to considering the facts the court found at the conclusion of the suppression hearing; rather, "[i]n deciding whether the motion to suppress was properly denied, we may of course consider all of the evidence at the suppression hearing as well as the undisputed trial testimony." Lewis v. United States, 594 A.2d 542, 543 n.3, 546 (D.C. 1991) (taking into account Lewis's "undisputed testimony at the suppression hearing" in determining whether trial court erred in denying motion to suppress). Whether reasonable suspicion exists to justify a search is a mixed question of fact and law. Brown, 590 A.2d at 1036. And, ultimately, whether the trial court erred in denying appellant's motion to suppress tangible evidence is subject to de novo review. Id.
The parties agree that the MPD officers' detention of appellant during the execution of the search warrant was lawful, and that the sole issue presented is whether the weapons pat-down was constitutionally permissible. As one appellate court observed a few years ago, "[w]hether law enforcement officers may detain and pat-down persons encountered during the execution of a narcotics search warrant in a private home is far from settled." State v. Howard, No. 2003-CA-0058, 2004 Ohio App. LEXIS 2256, at ¶29 (Ohio Ct. App. June 2, 2004) (italics added). That remains true today;*fn4 in particular, the Supreme Court has not directly addressed the question of whether, consistent with the Fourth Amendment,*fn5 police may frisk the occupants of a private residence during the execution of a search warrant for narcotics and weapons. However, a number of decisions by the Supreme Court and this court provide useful guidance.
As established by Terry v. Ohio, 392 U.S. 1, 27 (1968), it is constitutionally permissible for police officers to conduct a pat-down search if they have reasonable articulable suspicion that the person they have detained is armed and dangerous. To "justif[y] the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. The reasonableness of a search (or a seizure) must be "judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?" Id. at 21--22 (citations and internal quotation marks omitted).*fn6 To apply this standard, "Terry compels us to evaluate the totality of the circumstances . . . ." Smith v. United States, 558 A.2d 312, 314 (D.C. 1989). To determine whether a search was reasonable in light of the totality of circumstances, we must "balanc[e] the need to search . . . against the invasion . . . the search . . . entails." Terry, 392 U.S. at 21(quoting Camara v. Municipal Court, 387 U.S. 523, 536--37 (1967)).
The progeny of Terry include a number of decisions in which the Supreme Court considered whether police may search or seize individuals who are on the premises that police are searching during the execution of a search warrant. Appellant relies primarily on the Court's opinion in Ybarra v. Illinois, 444 U.S. 85 (1979), which he contends requires us to hold that the pat-down search in issue here was unlawful.*fn7 In Ybarra, the Court considered whether police officers who entered a tavern to execute a search warrant for heroin violated Ybarra's Fourth Amendment rights when-conducting a "'cursory search for weapons'"-they frisked the dozen or so patrons of the tavern, including Ybarra, on whom they found packets of heroin.*fn8 The Supreme Court noted that "[t]he search warrant complaint did not allege that the bar was frequented by persons illegally purchasing drugs" and "did not state that the informant had ever seen a patron of the tavern purchase drugs from [the bartender] or from any other person." Id. at 90. Further, the Court noted, law enforcement agents "knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale." Id. at 91. The Court held that the patdown search of Ybarra did not "constitute a reasonable frisk for weapons under the Terry doctrine," because the frisk "was simply not supported by a reasonable belief that [Ybarra] was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons." Id. at 92--93. The Court explained:
When the police entered the Aurora Tap Tavern on March 1, 1976, the lighting was sufficient for them to observe the customers. Upon seeing Ybarra, they neither recognized him as a person with a criminal history nor had any particular reason to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson later testified, Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening. At the suppression hearing, the most Agent Johnson could point to was that Ybarra was wearing a 3/4-length lumber jacket, clothing which the State admits could be expected on almost any tavern patron in Illinois in early March. In short, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous.
Id. at 93.
Appellant argues that his circumstances during the search of the house on Bass Place cannot be distinguished in any material way from the facts of Ybarra. He emphasizes the Supreme Court's statement in that case that the "'narrow scope' of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place." Id. at 94.
We are not persuaded by appellant's argument in reliance on Ybarra. Rather, we think denial of the motion to suppress was consistent with the Supreme Court's later decisions in Michigan v. Summers, 452 U.S. 692 (1981); Muehler v. Mena, 544 U.S. 93 (2005); and Los Angeles County v. Rettele, 550 U.S. 609 (2007). In those cases, each of which involved the execution of a warrant to search a private residence, the Court drew back somewhat from the requirement that there be suspicion "directed at the person" who suffers the intrusion before police may intrude on the rights of an individual found on the premises to be searched.
In Summers, as police officers arrived to execute a warrant authorizing them to search a house for narcotics, they encountered an individual (Summers) descending the front steps of the house. They detained Summers while they searched the premises, and, after finding narcotics in the house and determining that he owned the house, arrested and searched him and found heroin in his coat pocket. Summers, 452U.S. at 693. Summers moved to suppress the heroin as the product of an unlawful seizure. The Supreme Court held that it was lawful for police to require Summers to re-enter and remain in the house, because "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Id. at 705. The Court recognized that although "no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence." Id. at 702. The Court reasoned that because "a neutral magistrate rather than an officer in the field . . . made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of the home," the "connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant." Id. at 703--04.
As the Court explained several years later in Mena, the rationale of Summers is that once a warrant for the search of a home is authorized and the warrant is being executed, "the character of the additional intrusion caused by detention [of the occupants of the home] is slight [while] the justifications for detention are substantial." 544 U.S.at 98 (citing Summers, 452 U.S. at 703--04).
The Court also characterized Summers as standing for the principle that "[a]n officer's authority to detain incident to [execution of] a search [warrant] is categorical; it does not depend on the 'quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.'" Id. (quoting Summers, 452 U.S. at 705 n.19). Thus, in Summers, the Court "created a broad right for police officers to secure premises during a search warrant." Dashiell, 821 A.2d at 383.
In Mena, police investigating a gang-related, drive-by shooting obtained a search warrant for an address where they had reason to believe at least one member of the gang involved in the shooting resided. The warrant authorized a search of the house and premises for, among other things, deadly weapons. 544 U.S. at 95. The team of agents who conducted the search detained Mena (whom they found asleep in her bedroom) and three other individuals found on the property for the two- to three-hour duration of the search. Id. at 93, 103. The team handcuffed the detainees and took them into a converted garage on the premises, with one or two officers guarding them. While the detainees were allowed to move around the garage, they remained in handcuffs during the entire search. Id. at 96. The Court held that the "officers' use of force in the form of handcuffs to effectuate [the] detention" was lawful "because the governmental interests outweigh[ed] the marginal intrusion," even as to occupants not named in the warrant.*fn9 Id. at 99. Further, the Court explained that the "need to detain multiple occupants made the use of handcuffs all the more reasonable" so as to "minimiz[e] the risk of harm to both officers and occupants." Id. at 100.*fn10
Rettele was a suit brought under 42 U.S.C. § 1983 on the basis of a search and seizure by members of the Los Angeles County Sheriff's department who had a warrant to search three named suspects, and two houses where police believed the suspects resided, for documents and computer files, in connection with a fraud and identity theft investigation. 550 U.S. at 609--10. One of the suspects was known to have registered a handgun. Id. at 610. While executing the search warrant at the first house, officers found in a bedroom two residents (Rettele and Sadler) who were of a different race from that of the suspects named in the warrant. Id. With their guns drawn, the officers ordered the (innocent) residents, who had been sleeping unclothed, out of bed and required them to stand naked for a few moments before allowing them to cover themselves. 550 U.S. at 609--11. The residents-who, police learned a few minutes into the search, had very recently purchased and moved into the house and were not connected to the suspects-contended that the officers were not entitled to qualified immunity because a reasonable officer "would have stopped the search upon discovering that respondents were of a different race than the suspects and because a reasonable deputy would not have ordered respondents from their bed." Id. at 610.
The Court rejected the reasoning of the United States Court of Appeals for the Ninth Circuit that "[b]ecause respondents were of a different race than the suspects the deputies were seeking, . . . '[a]fter taking one look at [respondents], the deputies should have realized that [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies' safety.'" Id. at 613 (quoting Rettele v. Los Angeles County, 186 Fed. App. 765, 766 (9th Cir. 2006)). Rather, in a per curiam opinion, the Court reasoned:
When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search.
Rettele, 550 U.S. at 613. The Court stated that the officers "were not required to turn their backs to allow Rettele and Sadler to retrieve clothing or to cover themselves with the sheets," notwithstanding the residents' "resulting frustration, embarrassment, and humiliation" (noting that there was "no allegation that the deputies prevented Sadler and Rettele from dressing longer than necessary to protect their safety"). Id. at 615, 616. "Rather, '[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.'" Id. at 615 (quoting Summers, 452 U.S. at 702--03). Professor LaFave comments that, "Given the result in Rettele, it would seem likely that the Court would uphold a frisk absent any greater showing of danger from or involvement by the occupant subjected to the patdown." 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.9 (d) (4th ed. Supp. 2009--10).
Even before Mena and Rettele, this court recognized that, while the Supreme Court "has stressed the importance of 'individualized suspicion' as an essential prerequisite to a valid search or seizure" under the Fourth Amendment, "immediate safety concerns may justify police in stopping, or stopping and frisking, a person based on his association with someone else whom the police reasonably suspect of criminal activity." Trice v. United States, 849 A.2d 1002, 1006 (D.C. 2004).*fn11 Trice did not involve the execution of a search warrant,*fn12 but United States v. Owens, 788 A.2d 570 (D.C. 2002), did. We held in Owens that where police, who arrived at an apartment to execute a search warrant that authorized a search for firearms and ammunition, forcibly entered the apartment after their knock-and-announce went unanswered, they acted lawfully in removing the jacket worn by Owens, whom they found in the apartment, and patting it down for weapons. Id. at 577. We reasoned that "[e]specially once the police were refused admittance, they reasonably suspected-if not believed-that anyone inside the apartment was not a casual visitor but was associated with the drugs and firearms. At a minimum this justified the frisk of Owens' jacket, resulting in the seizure of the gun." Id. at 577 n.7 (citation omitted).
Thus, "despite the general rule" that requires suspicion directed at the person who suffers the intrusion, Trice, 849 A.2d at 1006, Summers, Mena, Rettele, and our own precedents point us toward a recognition that an individual's apparent association with a residence that police have been authorized to search for weapons is a circumstance that, along with the rest of the totality of circumstances, may provide a reasonable articulable basis for police to frisk the individual for weapons when they find him on the premises when they arrive to execute the search warrant.*fn13 As other courts as well have recognized, an individual's presence in a private residence that is being searched as a location from which illegal activities are being conducted is more likely, than an individual's presence in a business establishment that is open to the public, to indicate the individual's association with the illegal activities. In Dashiell, the Maryland Court of Appeals considered the lawfulness of a frisk for weapons that police performed in the course of executing a search at 9:00 p.m. at a private residence. Explaining its holding that the frisk was lawful, the court reasoned that "[p]resumably, all occupants of the home at that time were invited guests or residents, not random visitors whose identities were unknown to the residents. As such, the likelihood that those occupants knew of the drug trafficking operation occurring out of that household . . . was extremely high." 821 A.2d at 382. By contrast, the court reasoned, because the tavern in Ybarra "was open for business at the time of the warrant's execution, the likelihood that individuals with no knowledge or participation in the bartender's heroin trade were present was extremely high." Id.; see also United States v. Reid, 997 F.2d 1576, 1579 (D.C. Cir. 1993) ("There is more reason to suspect that an individual who is present in a private residence containing drugs is involved in illegal drug activity than someone who merely holds conversations with drug addicts in public places."); Guy, 492 N.W.2d 311 (reasoning that "[w]hen a magistrate has determined that a residence is the probable site of drug trafficking, the occupants of that residence are very likely to be involved in drug trafficking") (internal quotation marks and citation omitted).
The fact that the location being searched is a private residence also weighs heavily in the totality of circumstances as a reason that heightens the need for police to take safety precautions. "[O]ccupants or residents [of a private home] are likely to react adversely to the police entrance into their home." Dashiell, 821 A.2d at 382. Further, police officers have "an additional reason to be wary of possible dangers when executing a search warrant in a private residence," because an individual within a private residence "is usually more familiar and comfortable in those surroundings, which puts the officers at a serious disadvantage," and because "an officer may not normally know where weapons may be hidden in a private home, while the occupant may easily ambush the officer by concealing potential dangerous weapons within arm's reach." Id.; see also Guy, 492 N.W.2d 311 (recognizing that "executing a search warrant in a home can be more dangerous than doing so in a public place" because "an officer has to deal with suspects on the suspects' own turf and can reasonably fear that persons found in the residence are presently armed or may have ready access to weapons") (citations omitted); Jackson v. State, 993 So.2d 45, 46, 47 (Ala. Crim. App. 2007) (noting that defendant "hid a pistol in a flowerpot on his front porch" and later "retrieved the gun he had hidden on his front porch and began shooting at [the victim]").*fn14
In this case, the warrant authorized police to search the Bass Place residence not only for narcotics, but also for weapons. Although police did not know whether appellant owned or resided in the house, they could reasonably assume that he was a resident or an invited guest when they found him-by his account, partying along with several other people-on the premises when they arrived to conduct the search. The trial court found a number of other facts that also are pertinent to the totality of circumstances that we must consider. According to Detective James's testimony, which the trial court specifically credited, when police arrived, it was dark; there were multiple occupants on the porch (the same location where, according to the search warrant affidavit, the individual who sold cocaine to the confidential informant met her customer) and in the house; and appellant was wearing a coat under which a weapon could be concealed.*fn15 Furthermore, police used plastic "flexicuffs" to restrain the occupants of the porch whom they detained. Presumably, flexicuffs are not as secure as metal handcuffs, which themselves provide no guarantee that a restrained individual cannot reach places where contraband is secreted and endanger police.*fn16
The uncontradicted portions of appellant's testimony at the suppression hearing, though not specifically credited (or discredited) by the court, recited additional facts that, as part of the totality of circumstances, would have warranted an objective officer of reasonable caution in the belief that safety precautions were needed with respect to appellant in particular. Appellant testified that he was attempting to leave the porch as police arrived.*fn17 In addition, appellant testified that there were seven or eight people congregated on the porch, a number that exceeded the four or five officers who were attending to them.*fn18
In light of all the foregoing, we conclude that the totality of circumstances gave the police a basis for reasonable, articulable suspicion that appellant might be armed and dangerous, and that police therefore acted lawfully in performing a pat-down frisk of appellant for weapons.*fn19
Accordingly, we hold that the trial court did not err in denying the motion to suppress the cocaine that fell out of appellant's clothing during the frisk.
In reaching this result, we recognize that "even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience." Terry, 392 U.S. at 24--25. We are not persuaded, however, that the pat-down frisk in issue here rendered the intrusion in this case, during the thirty-five- to forty-five-minute period while appellant was detained and handcuffed, significantly more intrusive or any less reasonable than the protracted (two- to three-hour) intrusion the Supreme Court held to be lawful in Mena or the embarrassing circumstances that the Court held did not make the seizure in Rettele unreasonable. And, balanced against this intrusion is the strong governmental interest in minimizing the risk of harm to both officers and occupants of the premises being searched, a governmental interest that approaches its "maximum when [as here] a warrant authorizes a search for weapons . . . ." Mena, 544 U.S. at 99--100. We note that in United States v. Michelletti, 13 F.3d 838 (5th Cir. 1994), the court observed that "[t]he number of police officers killed annually in the line of duty has tripled since Terry was decided; the numbers of those assaulted and wounded have risen by a factor of twenty. Surely the constitutional legitimacy of a brief patdown . . . should reflect the horrendously more violent society in which we live, twenty-five years after Terry." Michelletti, 13 F.3d at 844; see also State v. McGill, 609 N.W.2d 795, 800--01 (Wis. 2000) (observing that "[t]he need for officers to frisk for weapons is even more compelling today than it was at the time of Terry," and citing an FBI report indicating that "[a]lthough the number of officers killed in the line of duty has increased only slightly [since 1966] . . . the number of assaults on officers has more than doubled . . . ."). As we emphasized in Trice, "we routinely expect police officers to risk their lives . . . . We should not bicker if in bringing potentially dangerous situations under control[,] they . . . take precautions which reasonable men are warranted in taking." Trice, 849 A.2d at 1007--08 (citation omitted).*fn20
The judgment of conviction is Affirmed.