United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2007 Decided December 21, 2007
No. 06-3152
UNITED STATES OF AMERICA,
APPELLEE
v.
GLENN F. BULLOCK, JR.,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00361-01)
Kenneth D. Auerbach, appointed by the court, argued the
cause and filed the brief for appellant.
Sarah T. Chasson, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III.
2
Before: SENTELLE, RANDOLPH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: This is a Fourth
Amendment exclusionary rule case. Bullock was driving a
car in Washington, D.C., and made an illegal turn.
Metropolitan Police Department Officer Jackson stopped
Bullock for the traffic violation. Bullock did not have
registration; he also could not identify the car’s owner, giving
Officer Jackson just a first name for the alleged owner.
Officer Jackson ordered Bullock out of the car in order to
investigate further; frisked Bullock to ensure that he was not
armed; felt a hard object that could have been a weapon
hidden under Bullock’s pants; searched Bullock’s pants for
the hard object; and discovered crack cocaine and a scale.
Bullock received three citations for traffic violations and
was arrested and later indicted for illegal drug possession with
intent to distribute. Bullock moved to suppress the drug
evidence. The District Court denied the motion – ruling that
the police’s stop, order to get out of the car, frisk, and limited
follow-up search were justified under the Fourth Amendment.
Bullock pled guilty to the drug crime, reserving his right to
appeal the Fourth Amendment issue. He was sentenced to 12
years and 7 months in prison and timely appealed.
In this Court, Bullock argues that the police violated the
Fourth Amendment’s proscription against “unreasonable
searches and seizures” when they (i) ordered him out of the
car and (ii) frisked him. We affirm because Bullock’s
arguments are flatly inconsistent with Pennsylvania v.
Mimms, 434 U.S. 106 (1977), and Terry v. Ohio, 392 U.S. 1
(1968).
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I
First, we consider the propriety of Officer Jackson’s
order that Bullock get out of the car.
The Supreme Court and this Court have repeatedly
emphasized that traffic stops are “especially hazardous.”
Michigan v. Long, 463 U.S. 1032, 1049 (1983). As then-
Judge Roberts explained, “[a]pproaching a stopped car –
particularly when there is reason to believe the driver or
occupants may be armed – is one of the more perilous duties
imposed on law enforcement officers.” United States v.
Holmes, 385 F.3d 786, 791 (D.C. Cir. 2004). Recognizing
these dangers, the Supreme Court in Pennsylvania v. Mimms
held that “once a motor vehicle has been lawfully detained for
a traffic violation, the police officers may order the driver to
get out of the vehicle without violating the Fourth
Amendment’s proscription of unreasonable searches and
seizures.” 434 U.S. 106, 111 n.6 (1977). As the Supreme
Court has reiterated, Mimms establishes a “bright line” rule.
Maryland v. Wilson, 519 U.S. 408, 413 n.1 (1997).
Because the clarity and force of the bright-line rule set
forth in Mimms are sometimes under-appreciated, if not
ignored entirely, the decision warrants extensive quotation:
We think it too plain for argument that the State’s
proferred justification – the safety of the officer – is both
legitimate and weighty. “Certainly it would be
unreasonable to require that police officers take
unnecessary risks in the performance of their duties.”
Terry v. Ohio, supra, at 23. And we have specifically
recognized the inordinate risk confronting an officer as
he approaches a person seated in an automobile.
“According to one study, approximately 30% of police
shootings occurred when a police officer approached a
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suspect seated in an automobile.” Adams v. Williams,
407 U.S. 143, 148 n. 3 (1972). We are aware that not all
these assaults occur when issuing traffic summons, but
we have before expressly declined to accept the argument
that traffic violations necessarily involve less danger to
officers than other types of confrontations. United States
v. Robinson, 414 U.S. 218, 234 (1973). Indeed, it
appears “that a significant percentage of murders of
police officers occurs when the officers are making
traffic stops.” Id., at 234 n. 5. . . .
Against this important interest we are asked to weigh
the intrusion into the driver’s personal liberty occasioned
not by the initial stop of the vehicle, which was
admittedly justified, but by the order to get out of the car.
We think this additional intrusion can only be described
as de minimis. The driver is being asked to expose to
view very little more of his person than is already
exposed. The police have already lawfully decided that
the driver shall be briefly detained; the only question is
whether he shall spend that period sitting in the driver’s
seat of his car or standing alongside it. Not only is the
insistence of the police on the latter choice not a “serious
intrusion upon the sanctity of the person,” but it hardly
rises to the level of a “‘petty indignity.’” Terry v. Ohio,
supra, at 17. What is at most a mere inconvenience
cannot prevail when balanced against legitimate concerns
for the officer’s safety.
Contrary to the suggestion in the dissent of our
Brother Stevens, post, at 122, we do not hold today that
“whenever an officer has an occasion to speak with the
driver of a vehicle, he may also order the driver out of the
car.” We hold only that once a motor vehicle has been
lawfully detained for a traffic violation, the police
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officers may order the driver to get out of the vehicle
without violating the Fourth Amendment’s proscription
of unreasonable searches and seizures.
434 U.S. at 110-11 & n.6 (emphasis added and citation
omitted).
The bright-line rule of Mimms means that “a police
officer may as a matter of course order the driver of a lawfully
stopped car to exit his vehicle.” Wilson, 519 U.S. at 410. The
Supreme Court later extended the bright-line rule to
passengers, holding that “an officer making a traffic stop may
order passengers to get out of the car pending completion of
the stop.” Id. at 415. As the Supreme Court has explained,
the risk of harm to the police when stopping a car “‘is
minimized if the officers routinely exercise unquestioned
command of the situation.’” Brendlin v. California, 127 S.
Ct. 2400, 2407 (2007) (quoting Wilson, 519 U.S. at 414); see
also Adams, 407 U.S. at 146.
Here, Bullock was lawfully stopped for a suspected
moving violation. Under Mimms, the police therefore could
order him out of the car.
II
Second, we consider the propriety of Officer Jackson’s
frisk of Bullock.
A
It initially bears emphasis that, at the time of the frisk,
Officer Jackson possessed reasonable suspicion not just of the
traffic violations but also that Bullock had stolen the car (a
crime often associated with a weapon) because Bullock could
not produce registration and could not name the car’s owner.
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See Tr. of Suppression Hearing, Gov’t Appendix 106 (District
Court: “a reasonably prudent police officer would have
suspicion that conceivably this car might be stolen”); id. at
90-91, 105; see also United States v. Rowland, 341 F.3d 774,
784 (8th Cir. 2003).
Terry v. Ohio authorizes a frisk during a stop when an
officer “reasonably” would believe that the suspect “may be
armed and presently dangerous.” 392 U.S. 1, 30 (1968);
United States v. Holmes, 385 F.3d 786, 790 (D.C. Cir. 2004).
The purpose of the frisk is to ensure officer safety and the
safety of others. Terry, 392 U.S. at 30; Sibron v. New York,
392 U.S. 40, 65 (protective frisk is designed to uncover
“concealed objects which might be used as instruments of
assault”).
If an officer possesses reasonable suspicion that the
detained suspect committed a violent or serious crime – such
as murder, robbery, rape, burglary, assault with a weapon, or
various drug offenses – the officer by definition is dealing
with an individual reasonably suspected of committing a
crime that involves or is associated with carrying or using a
weapon. In such cases, it logically and necessarily follows
that the officer may reasonably conclude the suspect “may be
armed and presently dangerous.” Terry, 392 U.S. at 30.
In Terry itself, therefore, the Court upheld the frisk
because the suspects’ actions were “consistent with [Officer]
McFadden’s hypothesis that these men were contemplating a
daylight robbery – which, it is reasonable to assume, would be
likely to involve the use of weapons.” Id. at 28. When
Officer McFadden stopped Terry, “he had no reason whatever
to suppose that Terry might be armed, apart from the fact that
he suspected him of planning a violent crime.” Id. at 33
(Harlan, J., concurring). In other words, the frisk in Terry
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was permissible because of the nature of the suspected crime
– armed robbery. See id. at 33 (Harlan, J., concurring)
(“Where such a stop is reasonable, however, the right to frisk
must be immediate and automatic if the reason for the stop is,
as here, an articulable suspicion of a crime of violence. . . .
There is no reason why an officer, rightfully but forcibly
confronting a person suspected of a serious crime, should
have to ask one question and take the risk that the answer
might be a bullet.”); Adams v. Williams, 407 U.S. 143, 146
(1972) (“The Court recognized in Terry that the policeman
making a reasonable investigatory stop should not be denied
the opportunity to protect himself from attack by a hostile
suspect.”); 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE
§ 9.6(a) p. 625 (4th ed. 2004) (“It is undoubtedly true,
however, that in some cases the right to conduct a protective
search must follow directly from the right to stop the
suspect. . . . Lower courts have been inclined to view the
right to frisk as being automatic whenever the suspect has
been stopped upon the suspicion that he has committed, was
committing, or was about to commit a type of crime for which
the offender would likely be armed, whether the weapon
would be used to actually commit the crime, to escape if the
scheme went awry, or for protection against the victim or
others involved.”); Wayne R. LaFave, ‘Street Encounters’
and the Constitution: Terry, Sibron, Peters, and Beyond, 67
MICH. L. REV. 39, 88 (1968) (“[A] protective search may
always be made when the stopping is to investigate what
appears to be a crime of violence. For other crimes . . . it
would apparently take noticeable bulges in the suspect’s
clothing, movements by the suspect toward his pockets, or
similar observations to give rise to a substantial possibility
that the suspect was armed.”) (internal quotation marks and
footnotes omitted).
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Applying Terry, courts routinely hold that protective
frisks to ensure officer safety are permissible when an officer
has reasonable suspicion that the suspect committed a crime
involving or associated with carrying or using a weapon.
Such frisks are warranted because “some crimes by their very
nature are so suggestive of the presence and use of weapons
that a frisk is always reasonable when officers have
reasonable suspicion that an individual might be involved in
such a crime.” United States v. Barnett, 505 F.3d 637, 640
(7th Cir. 2007) (suspicion of burglary); see also United States
v. Garcia, 459 F.3d 1059, 1064 (10th Cir. 2006) (suspicion of
drug crimes; “an individual’s involvement with drug
transactions or distribution can support reasonable suspicion
to frisk that individual for weapons”); United States v. Bustos-
Torres, 396 F.3d 935, 943 (8th Cir. 2005) (suspicion of drug
crimes; “[b]ecause weapons and violence are frequently
associated with drug transactions, it is reasonable for an
officer to believe a person may be armed and dangerous when
the person is suspected of being involved in a drug
transaction”); United States v. Jacob, 377 F.3d 573, 579 (6th
Cir. 2004) (suspicion of drug crimes; “officers who stop a
person who is reasonably suspected of carrying drugs are
entitled to rely on their experience and training in concluding
that weapons are frequently used in drug transactions, and to
take reasonable measures to protect themselves”) (internal
quotation marks omitted); United States v. $109,179 in U.S.
Currency, 228 F.3d 1080, 1086 (9th Cir. 2000) (suspicion of
drug crimes; “it was not unreasonable to believe that” the
suspect “might be armed”); United States v. Edwards, 53 F.3d
616, 618 (3d Cir. 1995) (suspicion of fraud at bank; frisk
reasonable where “fraud occurred at a bank in broad daylight”
and thus “the perpetrators might have armed themselves to
facilitate their escape if confronted”); United States v. Moore,
817 F.2d 1105, 1108 (4th Cir. 1987) (suspicion of burglary;
reasonable for officer responding to burglar alarm to stop and
9
frisk burglary suspect); Trice v. United States, 849 A.2d 1002,
1005-06 (D.C. 2004) (frisk in stabbing case; where “officer
has a reasonable articulable suspicion of a crime of violence,
or that the person lawfully stopped may be armed and
dangerous, then a limited frisk for weapons is likewise
permissible and may be ‘immediate and automatic’”) (quoting
Terry, 392 U.S. at 33 (Harlan, J., concurring)).
In this case, once Bullock could not produce the
registration information and could not identify the owner of
the car, Officer Jackson possessed reasonable suspicion that
Bullock had stolen the car. Like burglary, car theft is a crime
that often involves the use of weapons and other instruments
of assault that could jeopardize police officer safety, and thus
justifies a protective frisk under Terry to ensure officer safety.
As the Eighth Circuit has held, “when officers encounter
suspected car thieves, they also may reasonably suspect that
such individuals might possess weapons.” United States v.
Hanlon, 401 F.3d 926, 929 (8th Cir. 2005) (internal quotation
marks omitted); see also United States v. Williams, 7 F.
App’x 876, 885 (10th Cir. 2001) (permissible to frisk driver
prior to consensual search of potentially stolen van); United
States v. Bradley, 1990 WL 124205, at *2 (6th Cir. 1990)
(officers were “justified in frisking both the driver and
passenger of the car that they believed to have been recently
stolen” because it was reasonable to believe that a person
“suspected of having recently been involved in a car theft[]
might have been armed and dangerous”).
In short, after Bullock could not produce the registration
and could not name the owner of the car, Officer Jackson
possessed reasonable suspicion that Bullock had stolen the
car; under Terry, Officer Jackson therefore had justification to
frisk Bullock to ensure officer safety.
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B
Even if the suspected crime were not car theft but simply
an ordinary traffic offense, the frisk of Bullock was still
proper. When the suspected crime is not one that involves or
is associated with weapons, other circumstances may justify a
frisk – such as suspicious movements or statements by the
suspect, suspicious items noticeable on the suspect’s person,
or other observations by the police. We evaluate those
circumstances objectively to determine “whether a reasonable
officer, knowing what [the officer] knew at the moment,”
would have been justified in performing the frisk. Holmes,
385 F.3d at 790.
Assuming this were just an ordinary stop for a moving
violation, each of at least two facts still independently
justified the frisk. First, Bullock’s pants were unbuttoned
when Officer Jackson walked up to the car; a suspect in a car
stop who is caught with his or her pants unbuttoned naturally
creates a reasonable fear that the suspect might be in the
process of trying to conceal a weapon there. Cf. United States
v. Johnson, 212 F.3d 1313, 1316-17 (D.C. Cir. 2000) (suspect
made “shoving down” motions into his pants). Second,
Bullock made furtive gestures with his hands by repeatedly
moving his hands toward his lap area, where his pants were
unbuttoned; furtive hand gestures by a suspect justify officers
in fearing for their safety. United States v. Edmonds, 240
F.3d 55, 61 (D.C. Cir. 2001) (suspect reached under driver’s
seat; “this Court recognizes that ‘furtive’ gestures in response
to the presence of the police can serve as the basis of an
officer’s reasonable suspicion”); United States v. Smart, 98
F.3d 1379, 1384-85 (D.C. Cir. 1996) (suspect moved hands to
waistband); United States v. Mitchell, 951 F.2d 1291, 1296
(D.C. Cir. 1991) (suspect moved both hands under coat).
Taken individually, each of those two facts independently
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would justify a protective frisk. Taken together, those facts –
along with the additional facts that the stop occurred in a
medium- to high-crime area and that Bullock did not
immediately pull over when Officer Jackson ordered him to
do so – overwhelmingly justify a protective frisk. See United
States v. Brown, 334 F.3d 1161, 1165 (D.C. Cir. 2003)
(neighborhood known for drug activity); Edmonds, 240 F.3d
at 60 (“high-crime area”); Johnson, 212 F.3d at 1316 (“high-
crime area”); State v. McGill, 609 N.W.2d 795, 802 (Wisc.
2000) (Sykes, J.) (suspect did not pull over right away but
continued down street and parked in driveway).
In sum, Officer Jackson’s frisk of Bullock was reasonable
under the Fourth Amendment. See Terry, 392 U.S. at 29-30.1
***
Statistics show that traffic stops continue to be
extraordinarily dangerous to the police officers who risk their
lives to protect the public. Every year in traffic stops and
pursuits in the United States, about 6,000 police officers are
1
Bullock also contends that the order to get out of the car and
subsequent frisk were unlawful because the justification for the stop
terminated when Officer Jackson learned over the police radio that
the car had not yet been reported as stolen – which Officer Jackson
learned before Bullock was ordered out of the car and frisked. This
argument is frivolous for two reasons. First, it does not matter that
the car had not yet been reported as stolen; Officer Jackson could
still reasonably suspect that the car was stolen because Bullock
could not produce registration and could not even name the alleged
owner of the car. Second, in any event, the stop would not have
terminated until, at a minimum, Officer Jackson issued citations for
Bullock’s traffic violations or decided to let Bullock depart. See
United States v. Lyons, 486 F.3d 367, 371 (8th Cir. 2007) (officer
may detain motorist while completing “certain routine tasks related
to the traffic violation, such as writing a citation”).
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assaulted – and about 10 officers are killed. U.S. DEP’T OF
JUSTICE, FEDERAL BUREAU OF INVESTIGATION, UNIFORM
CRIME REPORTS: LAW ENFORCEMENT OFFICERS KILLED AND
ASSAULTED (2006), at http://www.fbi.gov/ucr/killed/2006/
index.html. By ordering Bullock out of the car and frisking
him for purposes of officer safety, Officer Jackson did not
take “any unreasonable steps in attempting to ensure that he
would not become one of these statistics.” Holmes, 385 F.3d
at 791.
We affirm the judgment of conviction.
So ordered.