FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30260
Plaintiff-Appellee, D.C. No.
v. 3:08-cr-05548-
ROBERT JAMES BURKETT, RBL-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted May 3, 2010
Seattle, Washington
Filed July 20, 2010
Before: Cynthia Holcomb Hall, Kim McLane Wardlaw, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Hall
10355
UNITED STATES v. BURKETT 10357
COUNSEL
Gregory A. Gruber, Assistant United States Attorney,
Tacoma, Washington, for the plaintiff-appellee.
Ronald D. Ness, Port Orchard, Washington, for the defendant-
appellant.
OPINION
Judge HALL, Circuit Judge:
Robert James Burkett appeals from a judgment of convic-
tion, after a bench trial, of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). Burkett’s sole con-
tention on appeal is that the district court erred in denying his
motion to suppress the automatic pistol found in his coat
pocket during a pat-down search conducted by a Washington
State Patrol trooper after an automobile in which Burkett was
riding as a passenger was stopped for speeding. The district
court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I.
At approximately 1:00 a.m. on May 11, 2008, Washington
State Patrol Trooper Benjamin Blankenship was on patrol on
10358 UNITED STATES v. BURKETT
Highway 12 in Grays Harbor County, Washington. In his
rearview mirror, Trooper Blankenship observed the headlights
of a car approaching at “a pretty good clip.” Based on nearly
twenty-two years of law enforcement experience, Trooper
Blankenship believed that the car was traveling over the
posted speed limit of 55 miles per hour. As a result, he acti-
vated his rear antenna radar which registered a speed of 67
miles per hour. Once he verified that reading with a second
radar check, Trooper Blankenship pulled his patrol car behind
the speeding vehicle, a Ford Taurus, turned on his emergency
lights, and tried to effect a traffic stop.
The driver of the Taurus did not respond to Trooper
Blankenship’s emergency lights by pulling over to the side of
the highway. Instead, the vehicle continued ahead at the same
speed, eventually slowing to 40-45 mph, and then turned onto
an exit ramp leading off the highway at Devonshire Road and
came to a stop just past the top of the ramp. The Taurus trav-
eled a total of eight-tenths of a mile after Trooper Blanken-
ship turned on his emergency lights.
Because there were multiple safe places to pull over before
that point, Trooper Blankenship considered this to be “an
extremely long time” to respond, and he began to suspect that
“something [was] not right.” He used his spotlight to illumi-
nate the passenger compartment of the car as it continued
down the highway. He also took the unusual step of calling
for another officer, Trooper Eisfeldt, to respond as backup
since the Taurus had failed to respond to his emergency
lights.
Once Trooper Blankenship turned on his spotlight, he could
see a male passenger, later identified as Burkett, making “fur-
tive movements” as the car continued to travel. Burkett leaned
forward in his seat but kept his head rigid as if to make it
appear that he was continuing to look forward and to disguise
his movements. Nonetheless, the trooper could see the move-
ment of Burkett’s shoulders because the spotlight was reflect-
UNITED STATES v. BURKETT 10359
ing off the white jacket he was wearing. It appeared that
Burkett was either hiding or retrieving something from under-
neath the seat, an observation that heightened Trooper
Blankenship’s concerns.
When the Taurus finally stopped, it was on Devonshire
Road, a road with less traffic than Highway 12. At that point,
Trooper Blankenship approached the driver’s side, spoke with
the female driver, and asked for her license and registration.
At the same time, Trooper Blankenship used his flashlight to
illuminate Burkett’s hands because the movements he had
observed and the failure of the car to stop caused him to
believe Burkett presented the “biggest concern” if there was
a weapon in the car. When Trooper Blankenship first walked
up to the driver’s door, Burkett’s hands were in his lap, but
they did not remain in that position, or even stay in the troop-
er’s view. Trooper Blankenship observed that both the driver
and Burkett appeared to be “unusually nervous.”
Trooper Blankenship asked the driver if she knew how fast
she was going, and then told her he had clocked the vehicle
going 67 miles per hour. He asked Burkett what he was doing
just before the car stopped, to which Burkett responded,
“Nothing.” Knowing this was untrue based on his own obser-
vations, Trooper Blankenship told Burkett he saw him place
something under the seat. Burkett first appeared startled and
then said something about having a drink, pointing out a cup
of liquid on the “transmission hump” between the seats.
Blankenship noted that the response appeared to be something
that “just popped into [Burkett’s] head” to explain his actions.
Moreover, this statement did not appear to be true because it
was not consistent with the movements the trooper saw before
the car came to a stop. Burkett’s movements were “more for-
ward and under the seat, as opposed to his left and then
down.” Based on what he observed and Burkett’s response,
Trooper Blankenship suspected that Burkett might be armed.
At that point, Trooper Blankenship asked for identification,
which Burkett provided.
10360 UNITED STATES v. BURKETT
Because of his increasing safety concerns, Trooper
Blankenship asked Burkett to get out of the car. However,
rather than using the hand closest to the door, his right hand,
to open it, Burkett made the “unusual movement” of reaching
across his body and opening the door with his left hand,
thereby blocking the officer’s view of both of his hands with
his body. Because this further heightened Trooper Blanken-
ship’s suspicions, he walked to the back of the car to reposi-
tion himself so he could see Burkett as he got out of the car.
Initially, Trooper Blankenship could not see Burkett’s
hands as he got out of the car. But then, as Burkett turned
toward the back of the car and the trooper, “it appeared that
he was reaching with his right hand trying to find [the] front
coat pocket” of his white, knee-length jacket. Trooper
Blankenship yelled for him to keep his hands out of his
pocket and then stepped forward and grabbed Burkett by the
right arm. He escorted Burkett to the back of the car where he
had Burkett place his hands on the trunk and spread his feet.
The trooper then began a pat-down search for weapons.
As the trooper started the pat-down search, Burkett “kind
of turned his torso to the right and raised his right hand up off
the trunk.” Trooper Blankenship pushed Burkett’s hand back
onto the trunk and told him to keep his hands in place. Burkett
then tried to move away two more times. It was at that point
that Trooper Eisfeldt arrived at the scene. When Burkett
noticed the arrival of the second officer, he said, “You’ve got
me,” and put his hands on the trunk lid. Burkett then acknowl-
edged that he had a gun in his right jacket pocket. Trooper
Blankenship retrieved the .380 automatic pistol from that
pocket.
On redirect at the suppression hearing, Trooper Blanken-
ship stated that he did not follow the usual practice of retriev-
ing the driver’s identification and returning to his car to radio
the information to his dispatcher because, in the circum-
stances, his suspicions had been raised. He said that without
UNITED STATES v. BURKETT 10361
such suspicions he would not ordinarily call another trooper
to the scene. Moreover, Trooper Blankenship stated that, by
returning to his car and speaking on the radio, he would have
placed himself into a vulnerable position unless he first
addressed his suspicions that Burkett might be armed.
Burkett also testified at the suppression hearing, and gave
an account of the events of the traffic stop that did not give
rise to any serious dispute about the facts reported by Trooper
Blankenship, only about the inferences to be drawn from
them. Burkett claimed that when the officer’s emergency
lights came on behind the Taurus, he had an unopened 22-
ounce beer in a paper bag on his lap. Burkett stated that he
“leaned forward and set the beer on the ground” placing it
against his leg. Burkett claimed that after initially denying any
movement, he told Trooper Blankenship he was just putting
the beer on the ground, and that he then picked up the beer
to show it to the officer. Burkett admitted he showed an open
cup of alcohol in the center console to Trooper Blankenship
and then put it back where it had been. He also acknowledged
that the officer asked for his identification, which he handed
over, and that the officer then asked him to get out of the car.
Burkett admitted he opened the passenger door with his left
hand after “throwing the [seatbelt] strap over” his body with
that same hand. Finally, Burkett said that because the passen-
ger side of the car was close to the guardrail, and he was
wearing a “big coat,” he “had to kind of squeeze through the
door and push [his] jacket out at the same time,” offering this
as an explanation for the movements Trooper Blankenship
observed.
On cross-examination, Burkett admitted the car traveled a
very long distance after the trooper turned on his emergency
lights to direct the car to stop, and confirmed that the officer’s
spotlight came on after the driver said they were going to get
stopped. Burkett said he put his beer on the floorboard after
the spotlight came on and suggested that he told the officer he
was not doing anything because he “thought it was a harmless
10362 UNITED STATES v. BURKETT
move to put my beer on the ground.” Burkett acknowledged
that the trooper told him he had observed the movement.
Regarding the use of his left hand to open the door, Burkett
suggested he did this because his left hand was already near
the door after using it to release and manually retract his seat-
belt. Burkett further acknowledged that his action of pushing
his coat out the door as he exited the car could be perceived
by Trooper Blankenship as if Burkett was moving his hand
toward his pocket.
At the conclusion of the testimony, the district court ren-
dered its decision on the record. The court noted that Burkett
did not dispute that the Taurus was speeding, or that the driver
of the car failed to stop for some time after the officer had
activated his emergency lights. The district court found that
the driver’s decision to keep traveling, for whatever reason,
heightened Trooper Blankenship’s suspicions and caused him
to use his spotlight. The court further noted that the defense
did not challenge the fact that Burkett actually leaned forward
while the trooper was attempting to stop the car. As a result,
the officer’s suspicions were further heightened to the extent
that he called another trooper for assistance, an action that the
court found to be reasonable under the circumstances. The
district court also found that Burkett’s answer that he did
“nothing” in response to Trooper Blankenship’s question,
given what he had seen, provided the officer yet another rea-
son to believe Burkett presented a threat. Finally, the district
court observed that the testimony established that when Bur-
kett got out of the car, his hand was near his coat pocket and
that Trooper Blankenship was justified in believing that Bur-
kett was reaching for the pocket.
Based on these facts, the district court concluded that
Trooper Blankenship “had a reasonable belief or suspicion”
that Burkett might be armed and dangerous. The district court
noted that it was not difficult to reach the conclusion that
Trooper Blankenship had cause to believe that Burkett might
be armed and then dangerous and that this warranted the
UNITED STATES v. BURKETT 10363
trooper’s actions. Accordingly, the district court denied Bur-
kett’s motion to suppress.
II.
We review de novo the district court’s denial of Burkett’s
suppression motion. United States v. Johnson, 581 F.3d 994,
998 (9th Cir. 2009). A determination whether there was rea-
sonable suspicion to support an investigatory “stop and frisk”
is a mixed question of law and fact, also reviewed de novo.
Id.
III.
Burkett does not dispute that Trooper Blankenship had rea-
sonable suspicion to stop the vehicle in which he was riding
as a passenger, as it was traveling at a speed of 12 miles over
the posted speed limit. Rather, he contends that the evidence
presented at the suppression hearing does not support the dis-
trict court’s ruling that Trooper Blankenship had reasonable
suspicion to believe he was armed and dangerous.
[1] Law enforcement officers may lawfully conduct a
“frisk” or “pat-down search” of a passenger during a lawful
investigatory “stop” if the officer reasonably suspects the pas-
senger is armed and dangerous. Arizona v. Johnson, ___ U.S.
___, ___, 129 S.Ct. 781, 784, 787 (2009); Knowles v. Iowa,
525 U.S. 113, 117-118 (1998); Terry v. Ohio, 392 U.S. 1, 23-
24 (1968). To determine whether reasonable suspicion
existed, we consider the “totality of the circumstances sur-
rounding the stop.” United States v. Hall, 974 F.2d 1201,
1204 (9th Cir. 1992). “Reasonable suspicion ‘is formed by
specific, articulable facts which, together with objective and
reasonable inferences, form the basis for suspecting that the
particular person detained is engaged in criminal activity.’ ”
United States v. Thompson, 282 F.3d 673, 678 (9th Cir. 2002)
(quoting United States v. Rojas-Millan, 234 F.3d 464, 468-69
(9th Cir. 2000)). The determination is made with reference to
10364 UNITED STATES v. BURKETT
the “collective knowledge of the officers involved, and the
inferences reached by experienced, trained officers.” Hall,
974 F.2d at 1204 (quoting United States v. Sharpe, 470 U.S.
675, 682 (1985)).
[2] Contrary to Burkett’s argument that the seizure of the
firearm from his coat pocket stemmed from a violation of his
Fourth Amendment rights, the record developed during the
suppression hearing amply supports a conclusion that the
“stop and frisk” in this case was reasonable. In the totality of
the circumstances, the highly experienced State Trooper had
good reason to suspect that Burkett was armed and dangerous,
and that a pat-down search was necessary to ensure the offi-
cer’s safety. Objectively viewed, Burkett’s furtive movements
during the time the driver was refusing to comply with the
order to stop her vehicle, his evasive and deceptive responses
when asked what he was doing at that time, the peculiar way
he opened the door with his left hand, and the way he kept his
right hand near and reached for his right coat pocket when he
got out of the vehicle, would justify an experienced law
enforcement officer’s belief that Burkett was armed and dan-
gerous. Whether or not Burkett’s “innocent” explanations for
his conduct were true, the district court did not err in conclud-
ing that the officer’s observations provided an objectively rea-
sonable basis for suspecting that Burkett had a weapon.
IV.
For the foregoing reasons, the judgment of conviction,
including the sentence imposed, is AFFIRMED.