United States v. Rice

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 23, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellant,
v. No. 06-5138
KEV IN LEROY RICE,

Defendant-Appellee.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E NO RTH ERN DISTRICT O F O K LAH O M A
(D .C . N O. 06-C R-63-TC K)

Claire J. Evans, Appellant Section, Criminal Division, United States Department
of Justice, Washington, D .C . (D avid E. O’M eilia, United States Attorney, and D .
Edward Snow , Assistant United States Attorney, Northern District of Oklahoma,
Oklahoma City, with her on the briefs) for Plaintiff-Appellant.

Robert A. Ridenour, Assistant Federal Public Defender (John V. Butcher, Federal
Public D efender, with him on the brief) Office of the Federal Public D efender,
Northern & Eastern Districts of Oklahoma, Tulsa Oklahoma, for D efendant-
Appellee.

Before BR ISC OE, M cW ILLIAM S, and TYM KOVICH, Circuit Judges.

T YM K O VIC H, Circuit Judge.
 Police officers in Tulsa, Oklahoma recovered a gun belonging to Kevin

Leroy Rice during an early morning traffic stop. The officers had stopped a car

carrying Rice and two others in a high crime neighborhood after observing the

car’s suspicious driving pattern and a tag light violation. Suspicions were further

aroused when during routine identification checks the rear seat passenger gave

conflicting information about her identity. The officers also learned that Rice

was known to be armed and dangerous and had an extensive criminal

history— including burglary, robbery, and shooting with intent to kill. The

officers decided to remove Rice from the car and conduct a pat-down search.

Rice had a handgun in his pocket.

Rice successfully argued in the district court that the police lacked

reasonable suspicion to conduct the pat-down search. Finding the totality of

circumstances supported the officer’s reasonable belief that Rice might be

carrying a weapon, we REVERSE the district court’s ruling on the motion to

suppress evidence of the gun.

I. Background

Corporal Dan M iller and Officer James W eakley of the Tulsa, Oklahoma

Police Department testified at the suppression hearing about the circumstances

surrounding the incident. The background facts are largely undisputed.

The Traffic Stop. At around 2:30 a.m. on Tuesday, M arch 14, 2006,

Corporal M iller was patrolling a residential area of Tulsa near the intersection of

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East 52nd and North Peoria Street. Officers considered this a high crime area,

and M iller had previously responded to shootings, murders, and burglaries

nearby.

Corporal M iller spotted a black car proceeding eastw ard on East 52nd.

Because it was the only car out at that time of the night, M iller followed it as it

turned south on Rockford and then continued to proceed east on 51st Place.

M iller w atched the car’s progress as the brake lights came on and the vehicle

slowed and then accelerated again past four or five houses before braking and

slow ing again. The car repeated this procedure about eight times over two

residential blocks, stopping only at stop signs.

Based on the time of night and the unusual driving pattern, M iller

suspected the occupants might be preparing for a burglary or drive-by shooting,

relatively common occurrences in the neighborhood. M iller also testified that the

car did not have a tag light illuminating its rear license plate, a violation of

Oklahoma traffic laws.

M iller radioed two other officers on patrol that night, including Officer

W eakley, and informed them of the car’s unusual driving and the tag light

violation. W eakley rendezvoused with the vehicle and initiated a stop with M iller

and another officer as backup.

The Encounter With Rice. As W eakley approached the car, he saw two men

in the driver and passenger seats and a woman in the back seat. He informed the

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driver of the tag light violation and asked for a driver’s license and proof of

insurance. He also asked the passengers for identification. The front seat

passenger provided an Oklahoma identification card identifying him as Rice. The

back seat passenger said she had no identification, so W eakley asked for her

name. She first said her name w as Aiesha W atkins, but when W eakley took out

his pen and pad and asked for her name again, she said her name w as Aiesha

W atson. W eakley testified that, in his experience, if someone says they do not

have identification on them, they are often trying to conceal their identity and

may give inconsistent names.

W eakley then took the driver’s license, Rice’s identification card, and the

backseat passenger’s name back to his patrol car. He ran a records check on all

three individuals while w riting a citation for the tag light violation. The driver’s

record had a few insignificant entries, but the names “Aiesha W atkins” and

“Aiesha W atson” had no records associated with them. W eakley considered this

information unusual because “[u]sually somebody has a record of some sort,

whether it’s offensive— being a victim of a crime, having some sort of traffic

citation, something will come back.” R. at 37.

The background check on Rice revealed more serious information.

W eakley testified, “First thing I noticed on his record, it appeared on the

computer screen that he has been known to be armed and dangerous.” R. at 37.

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Rice also had an extensive criminal record. His sixteen prior felony convictions

included robbery, burglary, and shooting with intent to kill.

The Pat-Down Search. Because of the results of the records check,

W eakley decided to remove the occupants from the car for his safety. He first

asked Rice to step out of the car because he thought Rice was the most significant

safety threat. As he got out of the car and before W eakley requested a search,

Rice turned towards W eakley and placed his hands on top of the car, assuming the

position for a weapons search. W eakley performed a pat-down search and

recovered a gun. About five minutes elapsed between the time W eakley stopped

the car and his search of Rice.

The District Court’s Ruling. The district court granted Rice’s m otion to

suppress evidence of the gun after determining the circumstances did not support

a reasonable suspicion sufficient to search Rice. According to the court, “the

problem of this case is, that there has to be an objectively reasonable suspicion of

illegal activity. And running that records check on the defendant in this case is

not enough.” R. at 52. The court discounted the back seat passenger’s false

identity and other surrounding circumstances as irrelevant to the officer’s

suspicions about Rice.

II. Analysis

W hen review ing a district court’s decision on a motion to suppress, we

“accept the district court’s factual findings unless they are clearly erroneous. The

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ultimate determination of reasonableness is a question of law reviewable de

novo.” United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th Cir. 2006)

(internal citations omitted). A determination of reasonable suspicion is based on

“an objective standard taking the totality of the circumstances and information

available to the officers into account.” United States v. Johnson, 364 F.3d 1185,

1189 (10th Cir. 2004) (quoting United States v. Lang, 81 F.3d 955, 965 (10th Cir.

1996)).

A. Legal Framework.

This case raises questions implicating two distinct lines of cases that merge

in this appeal— traffic stops and pat-down weapons searches. The Fourth

Amendment governs both situations and in either instance prohibits an

unreasonable search or seizure. See, e.g., Alcaraz-Arellano, 441 F.3d at 1257

(traffic stop); United States v. Garcia, 459 F.3d 1059, 1063 (10th Cir. 2006) (pat-

down search).

Since a traffic stop itself is a seizure, the Fourth Amendment requires the

stop to be justified at its inception and reasonably limited in scope. United States

v. Holt, 264 F.3d 1215, 1220 (10th Cir. 2001). A justifiable stop must not exceed

the reasonable duration required to complete the purpose of the stop. See United

States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007).

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 A pat-down search must be justified by a reasonable suspicion that a person

is armed and dangerous. Garcia, 459 F.3d at 1064. During investigative stops,

including a traffic stop, an officer may perform a pat-down search

where he has reason to believe that he is dealing with an armed and
dangerous individual, regardless of whether he has probable cause to
arrest the individual for a crime. The officer need not be absolutely
certain that the individual is armed; the issue is w hether a reasonably
prudent man in the circumstances would be warranted in the belief
that his safety or that of others w as in danger.

Terry v. Ohio, 392 U.S. 1, 27 (1968); see also United States v. Palmer, 360 F.3d

1243, 1246 (10th Cir. 2004). W e view “the officer’s conduct through a filter of

comm on sense and ordinary human experience.” Garcia, 459 F.3d at 1064.

Officer safety is the primary objective justifying an officer’s right to

perform a pat-down search. And during traffic stops, we have consistently

recognized that the risk to officer safety is heightened by the confrontational

nature of the encounter:

An officer in today’s reality has an objective, reasonable basis to fear
for his or her life every time a motorist is stopped. Every traffic
stop, after all, is a confrontation. The motorist must suspend his or
her plans and anticipates receiving a fine and perhaps even a jail
term. That expectation becomes even more real when the motorist or
a passenger knows there are outstanding arrest warrants or current
criminal activity that may be discovered during the course of the
stop.

Holt, 264 F.3d at 1223. W e further recognized that “[r]esort to a loaded weapon

is an increasingly plausible option for many such motorists to escape those

consequences, and the officer, when stopping a car on a routine traffic stop, never

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knows in advance which motorists have that option by virtue of possession of a

loaded weapon in the car.” Id. An officer may therefore take reasonable “steps

to assure himself that the person with whom he is dealing is not armed with a

weapon that could unexpectedly and fatally be used against him. Certainly it

would be unreasonable to require that police officers take unnecessary risks in the

performance of their duties.” Terry, 392 U.S. at 23.

The reasonable suspicion required to justify a pat-down search represents a

“minimum level of objective justification,” Alcaraz-Arellano, 441 F.3d at 1260

(quoting United States v. M endez, 118 F.3d 1426, 1431 (10th Cir.1997)), and

“need not rise to the level required for probable cause, and it falls considerably

short of satisfying a preponderance of the evidence standard.” United States v.

Arvizu, 534 U.S. 266, 274 (2002). Reasonable suspicion is based on the totality

of circumstances, taking into account an officer’s reasonable inferences based on

training, experience, and common sense. Id. at 273; see also Garcia, 459 F.3d at

1064.

B. Application.

The government contends (1) Officer W eakley did not exceed the

permissible scope of the stop when he searched Rice, and (2) the search was

supported by reasonable suspicion that Rice was armed and dangerous. The

district court recognized that Officer W eakley did not significantly delay the stop,

but the court decided in suppressing evidence of the gun, “[t]his is erratic driving

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in a high crime area, I think the officers are justified in being suspicious, but I

don’t think you can go from that justification to the stop and pat-down.” R. at 53.

Rice concedes on appeal the traffic stop was justified at its inception

because of the tag light violation. The remaining issues then are whether the

officers exceeded the reasonable scope of the stop or lacked reasonable suspicion

in conducting the pat-down search.

The Scope of the Stop. An officer may not extend a traffic stop beyond a

reasonable duration necessary to accomplish the purpose of the stop unless the

driver consents to further questioning or the officer has reasonable suspicion to

believe other criminal activity is afoot. Alcaraz-Arellano, 441 F.3d at 1259.

W hile a traffic stop is ongoing, however, an officer has wide discretion to take

reasonable precautions to protect his safety. Holt, 264 F.3d at 1221–23. Obvious

precautions include running a background check on the driver and removing the

occupants from the vehicle. Id. at 1221–22 (citing M aryland v. Wilson, 519 U.S.

408, 415 (1997) and Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977)).

Furthermore, because passengers present a risk to officer safety equal to the risk

presented by the driver, M aryland v. Wilson, 519 U.S. 408, 413–14 (1997), an

officer may ask for identification from passengers and run background checks on

them as well. United States v. Jenson, 462 F.3d 399, 403–04 (5th Cir. 2006);

United States v. Purcell, 236 F.3d 1274, 1278 (11th Cir. 2001); see also United

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States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989) (noting that officer can

legitimately ask questions about the identity of passengers during a traffic stop).

None of Officer W eakley’s actions prior to searching Rice unreasonably

extended the duration of the stop, which had been in progress for only a few

minutes when he removed Rice from the car. W eakley testified that he had not

finished writing the citation when he received the results of Rice’s background

check, at which point W eakley immediately decided to return to the car to remove

the occupants. Because his actions did not unreasonably extend the traffic stop,

W eakley did not need reasonable suspicion to request identification from Rice,

run a background check on him, or remove Rice or any other passenger from the

car. These actions are fully justified by officer safety concerns no matter how

innocuous the traffic violation and need not be supported by additional reasonable

suspicion. See Wilson, 519 U.S. at 415; Alcaraz-Arellano, 441 F.3d at 1259;

Holt, 264 F.3d at 1221–22.

Reasonable Suspicion for the Pat-Down Search. A pat-down search,

however, requires additional suspicion that the suspect may be armed and

dangerous. Although Officer W eakley could remove Rice from the car as a part

of a routine traffic stop, he could not perform a pat-down search for weapons

unless he reasonably suspected that Rice might be carrying one. See United

States v. Dennison, 410 F.3d 1203, 1211 (10th Cir. 2005). W e conclude that

reasonable suspicion was present here.

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 The record discloses a number of facts justifying the pat-down search:

(1) Rice was one of three people in a car driving around a high crime area

of Tulsa at 2:30 on a Tuesday morning, a time when there were no other cars or

people around;

(2) the car proceeded along two residential blocks, slowing intermittently in

a manner that an observing officer thought consistent with preparing for a

burglary or drive-by shooting;

(3) the car did not have a tag light, which in the observing officers’

experience could indicate a desire to avoid identification;

(4) the passenger in the backseat had given W eakley what he, based on his

experience, believed were false names intended to conceal her true identity;

(5) the computer check W eakley ran confirmed his suspicions about the

back seat passenger when his search revealed no information on the names she

gave;

(6) the computer check identified Rice as “known to be armed and

dangerous”;

(7) Rice had a lengthy and violent criminal record; and

(8) Rice immediately assumed the position for a weapons search upon

exiting the car.

Taken together, these facts support W eakley’s belief that a pat-down search

was justified for his own safety.

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 In reaching a contrary conclusion, the district court’s decision discounted

the totality of the information known to the officers by focusing on the facts in

isolation. For example, the court emphasized two aspects of the stop— Rice’s

criminal history and the car’s “erratic driving in a high crime area”— in

concluding that Officer W eakley acted w ithout reasonable suspicion. The court

found that suspicious movements in a high crime area by a person with a criminal

history do not amount to reasonable suspicion sufficient to justify an investigative

detention, relying on United States v. Davis, 94 F.3d 1465 (10th Cir. 1996).

In Davis, we concluded that officers had no “specific factual basis” to

suspect a crime when they stopped and detained a man on foot with a criminal

history in a high crime area near a “known criminal establishment.” Id. at

1467–68, 1470. Here, in contrast, Rice concedes the initial stop of the vehicle

was valid. The officers in Davis had not yet initiated a valid stop, and so the

officer safety concerns justifying a pat-down search for w eapons were attenuated.

And while Rice correctly notes that a criminal record, standing alone, is not

sufficient to create reasonable suspicion of anything, id. at 1468, it may be one

factor of several that contributes to a finding of reasonable suspicion. Palmer,

360 F.3d at 1246; United States v. Sandoval, 29 F.3d 537, 542 (10th Cir. 1994).

G iven the officer safety rationale underlying the justification for a pat-down

search, a string of serious felonies like Rice’s carries additional weight. Taken

together, the information presented to W eakley was cause to believe Rice was

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presently armed and dangerous. The officer was entitled for safety reasons to

perform a pat-down search.

The district court also discounted the fact that the false identity provided by

the back seat passenger contributed to reasonable suspicion vis-a-vis Rice. Given

the circumstances here, the passenger’s attempt to hide her identity is entirely

consistent with efforts to avoid detection of criminal conduct. Thus, Officer

W eakley’s inference that the passenger’s desire to conceal her identity was

somehow related to the activities of the car’s three occupants was justified, and

our case law supports such an inference. See Dennison, 410 F.3d at 1213

(recognizing as reasonable an officer’s inference that a driver could be hiding

weapons in his car when his passenger had an outstanding warrant for a weapons

violation). A reasonable officer can infer from the behavior of one of a car’s

passengers a concern that reflects on the actions and motivations of the other

passengers. The backseat passenger’s behavior could only heighten W eakley’s

concern that this was anything but a routine traffic stop.

W eakley could thus reasonably infer at least two things from the back seat

passenger’s evasiveness— (1) that her eagerness to hide her identity made any

innocent explanations for the party’s early-morning activities less likely, and (2)

the evasive behavior made more likely the officer’s suspicions that their conduct

comported with preparations for a crime. Given that the officers suspected

attempts at burglary or a drive-by shooting, based on the history of the residential

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area in question, the driving pattern of the car, and the obscured license plate, a

greater likelihood of illegal activity also meant a greater likelihood that at least

one person in the car was armed.

Ultimately, the question before us is whether all of the facts available to

Officer W eakley at the moment of the search would “warrant a man of reasonable

caution in the belief that the action taken was appropriate.” Terry v. Ohio, 392

U.S. 1, 21–22 (1968) (internal quotations omitted). H ere they do. In this case, a

reasonably prudent officer would have done exactly what Officer W eakley

did— conduct a routine pat-down search for weapons to protect his safety and that

of others during the traffic stop.

III. Conclusion

Accordingly, the district court’s order granting the motion to suppress is

REVERSED and the case is REM ANDED for proceedings consistent with this

opinion.

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