Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
4-4-1997
United States v. Moorefield
Precedential or Non-Precedential:
Docket 96-3563
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"United States v. Moorefield" (1997). 1997 Decisions. Paper 77.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-3563
UNITED STATES OF AMERICA,
Appellant
v.
GARY MOOREFIELD aka MAURICE GORDON
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 95-cr-00045-2)
Argued February 13, 1997
BEFORE: COWEN, McKEE and JONES*,
Circuit Judges
(Filed April 4, 1997)
Paul J. Brysh, Esq. (argued)
Office of United States Attorney
633 United States Post Office
and Courthouse
Pittsburgh, PA 15219
COUNSEL FOR APPELLANT
Norma Chase, Esq. (argued)
220 Grant Street
Pittsburgh, PA 15219
COUNSEL FOR APPELLEE
OPINION
*Honorable Nathaniel R. Jones, United States Circuit Judge for
the Sixth Circuit Court of Appeals, sitting by designation.
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COWEN, Circuit Judge.
This is an appeal by the United States from a pre-trial
order suppressing evidence in a criminal prosecution.
Specifically, the Government seeks to reverse the district
court’s suppression of a firearm that was found in the possession
of passenger-defendant Gary Moorefield after the car in which he
was riding was stopped for a routine traffic violation.
Moorefield argues that the pistol must be suppressed for two
reasons. First, he submits that the police officers involved in
the traffic stop unlawfully ordered him and the driver to remain
in the car with their hands in the air. Second, he contends that
the pat-down that produced the weapon was illegal.
We hold that police officers may constitutionally order
occupants of cars to remain in the vehicle with their hands up in
the air. We further hold that based on Moorefield’s behavior,
and in particular his failure to follow directions, the officers
were justified in conducting a pat-down for weapons.
I.
Moorefield was charged in one count of a five-count
indictment with possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1)(Supp. 1997). He originally
pled not guilty but later changed his plea to guilty.
Subsequently, however, he withdrew his plea of guilty and filed a
motion to suppress the pistol that was found on his person when
he was frisked following a routine traffic stop. The district
court held an evidentiary hearing at which Police Officer Anthony
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Wiles was the sole witness for the government. Officer Wiles’
account of the facts is essentially undisputed.
At approximately 10:13 p.m. on July 28, 1994, Officer Wiles
and his partner were on routine patrol in the East Liberty
section of Pittsburgh. At that time they observed a car make a
right turn, cross from the right lane into the left lane in front
of traffic, almost hit an oncoming car, and then make a left turn
without signaling. Because of the violation of the Pennsylvania
Motor Vehicle Code, 75 Pa. C.S.A. § 3334 (West 1996), but not by
reason of any suspicion that the occupants of the car were
engaged in criminal activity, the officers required the vehicle
to stop and pull over to the side of the road.
The car had two occupants, driver Dana Moore and passenger
Moorefield. After Moore pulled the car over, Moorefield
attempted to exit the car. The officers instructed him to remain
in the vehicle. For their personal safety and as a routine
practice, the officers instructed both Moore and Moorefield to
show their hands at all times or to put their hands up in the
air. Moore followed the officers’ directions. Moorefield did
not.
Wiles perceived Moorefield to lean back and shove something
down toward his waist. Once again, the officers directed him to
show his hands. In response, Moorefield pushed his upper-body
out of the window, which again prompted the officers to order him
to remain inside the car with his hands in view. He then raised
and lowered his hands several times before finally keeping them
up in the air as instructed. Officer Wiles testified that
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because of Moorefield’s suspicious hand and body movements, he
believed that Moorefield may have been trying to conceal a weapon
or narcotics.
The officers requested additional police assistance. When
the back-up unit arrived, they approached the vehicle and ordered
Moore and Moorefield to step out. Moorefield exited the car with
his hands up. At that time and for safety reasons, Officer Wiles
conducted a pat-down search for weapons. The pat-down revealed a
pistol in the waistband of Moorefield’s shorts. Moorefield filed
a motion to suppress the pistol from being received into
evidence.
Following an evidentiary hearing and relying on Pennsylvania
v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977)(per curiam), the
district court found that the officers acted lawfully when they
ordered Moore and Moorefield to place their hands in the air
while the traffic stop was being conducted. It also ruled that
the officers acted lawfully to protect themselves when ordering
Moorefield to exit the car. However, the district court went on
to hold that the pat-down for weapons was unjustified. It based
its ruling on several factors. First, the district court pointed
to the fact that Moorefield eventually placed his hands in the
air and raised his arms when he exited the vehicle. The district
court also stated that Moorefield’s behavior in raising and
lowering his hands was not suspicious and was consistent with
innocent, as well as unlawful, behavior. Finally, the court
placed great importance on the fact that Officer Wiles was not
certain at the time of the stop and the subsequent pat-down that
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Moorefield possessed a weapon. The district court granted
Moorefield’s motion to suppress the pistol. This appeal
followed.
II.
For Fourth Amendment purposes, the traffic stop in this
matter may be divided into four stages: (1) the initial stop, (2)
the order to remain in the vehicle with hands in view, (3) the
order to exit the car, and (4) the pat-down search for weapons.
With respect to the first stage, Moorefield does not contest
the legality of the initial stop of the vehicle. It is well-
established that a traffic stop is lawful under the Fourth
Amendment where a police officer observes a violation of the
state traffic regulations. See, e.g., Mimms, 434 U.S. at 109, 98
S.Ct. at 332; United States v. Johnson, 63 F.3d 242, 245 (3d
Cir. 1995), cert. denied, 116 S.Ct. 2528 (1996). Regarding the
third stage, we need not address the issue of whether the
officers lawfully ordered Moorefield out of the vehicle. The
Supreme Court’s recent bright-line ruling in Maryland v. Wilson,
No. 95-1268, 1997 WL 65726 (Feb. 19, 1997) upheld an identical
order. Therefore, we need only assess the constitutionality of
the second and fourth stages. Because the facts in this case are
undisputed, we exercise plenary review over the district court’s
legal conclusions regarding the remaining stages of the traffic
stop. See United States v. Coggins, 986 F.2d 651, 654 (3d Cir.
1993).
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A.
We turn first to whether the police officers lawfully
ordered passenger Moorefield to remain in the car and put his
hands in the air while the traffic stop was being conducted. We
adjudicate this issue in light of the recent Supreme Court case
of Maryland v. Wilson, No. 95-1268, 1997 WL 65726 (Feb. 19,
1997). In a prior case, the Supreme Court held that a police
officer may order the driver of a lawfully stopped car to exit
the vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct.
330 (1977)(per curiam). In Wilson, the Supreme Court extended
the bright-line rule in Mimms by holding that a police officer
conducting a routine traffic stop may lawfully order passengers
to exit a car pending completion of the stop. Wilson, 1997 WL
65726, at *5.
In arriving at this conclusion, the Court balanced under the
Fourth Amendment the public interest in officer safety against
the passenger’s right to “personal security free from arbitrary
interference by law [enforcement] officers.” Id. at *3
(alteration added)(quoting Mimms, 434 U.S. at 109, 98 S.Ct. at
332 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878,
95 S.Ct. 2574, 2579 (1975))). The Supreme Court found that the
interest in officer safety outweighs the minor intrusion on
passengers who are “already stopped by virtue of the stop of the
vehicle.” Id. at *4. The Court continued: “The only change in
[the passengers’] circumstances which will result from ordering
them out of the car is that they will be outside of, rather than
inside of, the stopped car. Outside the car, the passengers will
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be denied access to any possible weapon that might be concealed
in the interior of the passenger compartment.” Id.
In view of the Supreme Court’s ruling in Wilson, we have no
hesitancy in holding that the officers lawfully ordered
Moorefield to remain in the car with his hands in the air. We
follow the Court’s analysis in Wilson. The only change in
Moorefield’s circumstances resulting from the order to remain in
the car and put his hands in the air, was that he remained inside
of the stopped car with his hands in view, rather than inside of
the stopped car with his hands lowered into a passenger
compartment that could potentially contain a concealed weapon.
Just as the Court in Wilson found ordering a passenger out of the
car to be a minimal intrusion on personal liberty, we find the
imposition of having to remain in the car with raised hands
equally minimal. We conclude that the benefit of added officer
protection far outweighs this minor intrusion.
B.
The second issue that we must review is whether the officers
lawfully conducted a pat-down for weapons. The Supreme Court has
repeatedly recognized that traffic stops are dangerous encounters
that result in assaults and murders of police officers. See,
e.g., Wilson, 1997 WL 65726, at *4; Michigan v. Long, 463 U.S.
1032, 1047, 103 S.Ct. 3469, 3480 (1983); United States v.
Robinson, 414 U.S. 218, 234 n.5, 94 S.Ct. 467, 476 n.5 (1973);
Adams v. Williams, 407 U.S. 143, 148 n.3, 92 S.Ct. 1921, 1924 n.3
(1972). In Wilson, the Court further observed that the risk of
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danger to a police officer conducting a traffic stop is “likely
to be greater when there are passengers in addition to the driver
in the stopped car.” Wilson, 1997 WL 65726, at *5.
In Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883
(1968), the Supreme Court held that a police officer may conduct
a reasonable search for weapons for his own protection "where he
has reason to believe that he is dealing with an armed and
dangerous individual.” The Court stated that a pat-down for
weapons can occur only where the officer is “able to point to
specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that
intrusion.” Id. at 21, 88 S.Ct. at 1880. In order to minimize
the dangers faced by police officers conducting traffic stops,
the Court has extended the constitutional principles in Terry to
situations involving officers and motorists. See, e.g., Long,
463 U.S. 1032, 103 S.Ct. 3469; Mimms, 434 U.S. 106, 98 S.Ct. 330.
Utilizing the standards set forth by the Supreme Court in
cases such as Terry, Long, and Mimms, many courts of appeals have
upheld limited weapon pat-downs of passengers where the
passengers have engaged in suspicious behavior similar to that of
Moorefield. For example, in United States v. Fryer, 974 F.2d
813, 819 (7th Cir. 1992), the Seventh Circuit upheld a search of
a vehicle pursuant to a routine traffic stop where “the officer
observed furtive movements between the driver and the passenger,
as if they were passing something between them.” The court
observed, in dicta, that under these circumstances, the officers'
pat-down search of both the driver and the passenger was also
8
justified. See id. In another case, the Fifth Circuit upheld
the frisk of a passenger where the officer observed the passenger
stoop down and move from side to side. United States v. Colin,
928 F.2d 676, 678 (5th Cir. 1991). See also United States v.
Woodall, 938 F.2d 834, 837 (8th Cir. 1991)(pat-down search of
passenger upheld, in part because passenger leaned down to the
floorboard of the vehicle at least twice after officers signaled
the vehicle to pull over); United States v. Taylor, 716 F.2d 701,
709 (9th Cir. 1983)(pat-down search of passenger upheld, in part
because passenger twice disobeyed an order to raise his hands,
and also "made furtive movements inside the [vehicle] where his
hands could not be seen").
Similarly in this case, Officer Wiles pointed to “specific
and articulable facts which, taken together with rational
inferences from those facts,” reasonably warranted the pat-down.
See Terry, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880. Moorefield’s
furtive hand movements and refusal to obey the officers’ orders
constituted suspicious behavior. Officer Wiles testified that in
response to his instruction to Moorefield to remain in the
vehicle with his hands in view, Moorefield attempted to exit the
vehicle and then raised and lowered his hands several times. In
addition, Moorefield leaned back and appeared to shove something
down toward his waist. Officer Wiles testified that based on his
experience, Moorefield’s behavior was consistent with the
behavior of a person trying to conceal something. Although
Officer Wiles testified that he was not sure whether Moorefield
was attempting to hide narcotics or a firearm, an “officer need
9
not be absolutely certain that the individual is armed; the 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.” Id. at 27, 88 S.Ct. at 1883. Moorefield’s behavior
embodied the kind of specific, articulable facts that Terry
contemplates and, therefore, warranted a pat-down search for
weapons.
We find that the district court erred in concluding the pat-
down unjustified. Officer Wiles’ pat-down search of Moorefield
was reasonable under the Fourth Amendment, and the pistol seized
pursuant to the search may properly be introduced into evidence.
We will reverse the September 5, 1996, order of the district
court suppressing the firearm seized from Moorefield, and remand
for further proceedings.
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