                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          May 2, 2017

                                                                          Elisabeth A. Shumaker
                               FOR THE TENTH CIRCUIT                          Clerk of Court
                           _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-5015

PHILLIP LAMONT MORGAN,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                       for the Northern District of Oklahoma
                          (D.C. No. 4:13-CR-00218-JHP-1)
                       _________________________________

Submitted on the briefs:

Julia L. O’Connell, Federal Public Defender, and Barry L. Derryberry, Research and
Writing Specialist, Office of the Federal Public Defender, Northern District of Oklahoma,
Tulsa, Oklahoma, for Defendant-Appellant.

Danny C. Williams, Sr., United States Attorney, and Neal C. Hong, Assistant United
States Attorney, Northern District of Oklahoma, Tulsa, Oklahoma, for Plaintiff-Appellee.
                        _________________________________

Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.

                           _________________________________

PHILLIPS, Circuit Judge.*

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
                        _________________________________

        The Fourth Amendment protects the people against unreasonable searches and

seizures. U.S. Const. amend. IV. A traffic stop is a seizure but is “reasonable where

the police have probable cause to believe that a traffic violation has occurred.” Whren

v. United States, 517 U.S. 806, 809–10 (1996). After a lawful traffic stop, an officer

has authority to order the driver and passengers from the car. Maryland v. Wilson,

519 U.S. 408, 410 (1997). Here, we consider whether an officer has authority to order

a person to step off his bicycle after a lawful traffic stop. Under the circumstances of

this case, we hold that the officer had that authority.

                                    BACKGROUND

        On September 28, 2013 at about 10:30 p.m., Officer Brent Barnhart was

patrolling a high-crime area in Tulsa, Oklahoma, when he saw a man riding a bicycle

against traffic and not using a bicycle headlight, in violation of Tulsa’s traffic law.1

Unknown to Officer Barnhart, the bicyclist was Phillip Lamont Morgan, who had a

string of felony convictions: (1) unlawful possession of a firearm and ammunition,

(2) accessory after the fact to first-degree murder, (3) unlawful possession of a

controlled drug, and (4) unlawful possession with intent to distribute a controlled

drug.


        1
        See Tulsa Revised Traffic Code, tit. 37, § 1003(A) (“Every person operating
a bicycle . . . upon a roadway . . . shall ride as close as is safe to the right-hand curb
or edge . . . .”); Tulsa Revised Traffic Code, tit. 37, § 1010 (“Every bicycle . . . or
person operating a bicycle . . . which is used at night shall be equipped with a lamp
on the front which shall emit a white light . . . to be visible from a distance of at least
five hundred (500) feet to the front . . . .”).
                                             2
      Upon approaching Morgan, Officer Barnhart saw him “making movements

towards his pant pockets.” R. Vol. 2 at 44. Officer Barnhart told Morgan to keep his

hands out of his pockets. Then Officer Barnhart asked Morgan for identification.

Morgan replied that he had done nothing wrong and had no identification. Officer

Barnhart asked for Morgan’s personal identifiers, and Morgan gave a name (Stanford

Wallace), a birthdate, and a social security number. Before returning to his patrol car

to run Morgan’s personal identifiers through databases, Officer Barnhart again told

Morgan to keep his hands outside his pockets.

      After Officer Barnhart ran the name Stanford Wallace, the birthdate, and the

social security number through the databases, he received back a “no result”

response, which led him to suspect that Morgan had lied about his identity. Id. at 23.

A “no result” response means that no match exists for the information entered. Id. In

contrast, a “negative result” response means that a traceable record exists (such as an

ID card or a driver’s license) and that the suspect had no outstanding warrants or

criminal history.

      From the outset, Officer Barnhart believed that Morgan was acting evasively.

In particular, he noted that as Morgan sat on his bicycle, he kept his head and body

straight forward, not making eye contact. Based on the way Morgan kept moving his

head back and forth, Officer Barnhart feared that Morgan might flee. Based on all he

had seen and heard, Officer Barnhart believed that Morgan was trying “to hide

criminal activity.” Id. at 23–24.



                                           3
       After Morgan’s information produced no results, Officer Barnhart called for

backup, reapproached Morgan, and asked him to step off his bicycle. After Morgan

refused, Officer Barnhart warned him that “if he didn’t step off the bicycle, . . . he

would be tased.” Id. at 25. Morgan responded that “he had been tased before and he

was currently in a lawsuit with the City of Tulsa over that incident.” Id. This

strengthened Officer Barnhart’s suspicion that Morgan had provided false

information, because he believed that the record check would have revealed this

earlier incident.

       Officer Barnhart’s backups arrived quickly. Officer Barnhart told Morgan to

step off his bicycle, and again, Morgan refused. But this time, Morgan reached

toward and inside his left front pants pocket. Officer Barnhart immediately grabbed

Morgan’s left arm, fearing that Morgan might grab a concealed weapon. In trying to

control Morgan’s hands, Officer Barnhart and other officers forced Morgan to the

ground. Once on the ground, Morgan planted his arms under his stomach, preventing

the officers from handcuffing him. After Morgan ignored the officers’ commands to

show his hands, an officer tasered him, enabling the officers to handcuff him.

       After the officers handcuffed Morgan, Officer Barnhart frisked him for

weapons and found a loaded .38-caliber revolver in Morgan’s left front pants pocket.

Officers transported Morgan to the station, where they identified him by his

fingerprints as Phillip Lamont Morgan.

       A grand jury sitting in the Northern District of Oklahoma returned an

indictment charging Morgan with being a felon in possession of a firearm and

                                            4
ammunition, in violation of 18 U.S.C. § 922(g)(1). Before trial, Morgan moved to

suppress evidence of the firearm, arguing that Officer Barnhart had exceeded the

scope of the traffic stop by ordering him off his bicycle and by taking him to the

ground and tasering him. After a hearing, a magistrate judge recommended denying

Morgan’s suppression motion. Over Morgan’s objections, the district court adopted

the magistrate’s recommendation.

      A jury convicted Morgan of being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced

Morgan to twenty-seven months’ imprisonment. Morgan now appeals the denial of

his motion to suppress.

                                    DISCUSSION

      When reviewing a denial of a motion to suppress, we accept the district court’s

factual findings unless they are clearly erroneous, and we view the evidence in the

light most favorable to the government. United States v. Trestyn, 646 F.3d 732, 741

(10th Cir. 2011). “[T]he ultimate determination of the reasonableness of a search and

seizure under the Fourth Amendment is a question of law reviewed de novo.” Id.

      “Although traffic stops are often brief, they are nonetheless ‘seizures’ within

the meaning of the Fourth Amendment.” United States v. White, 584 F.3d 935, 945

(10th Cir. 2009). But because a routine traffic stop is more analogous to an

investigative detention than a custodial arrest, such stops are analyzed under the

standards announced for investigative detentions in Terry v. Ohio, 392 U.S. 1 (1968).

United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005). Under these

                                           5
standards, we first ask whether Officer Barnhart’s actions were “justified at . . .

inception.” Id. (quoting Terry, 392 U.S. at 20) (internal quotation marks omitted).

Second, we consider whether Officer Barnhart’s actions were “reasonably related in

scope to the circumstances which justified the interference in the first place.” Id.

(quoting Terry, 392 U.S. at 20) (internal quotation marks omitted).

       Here, the traffic stop was justified at its inception. “[A] traffic stop is valid

under the Fourth Amendment if the stop is based on an observed traffic violation or if

the police officer has reasonable articulable suspicion that a traffic or equipment

violation has occurred or is occurring.” United States v. Botero-Ospina, 71 F.3d 783,

787 (10th Cir. 1995). And Morgan doesn’t dispute that Officer Barnhart saw him

violate Tulsa’s traffic laws by riding his bicycle against traffic and failing to use a

headlight in the dark.

       This leaves Morgan the second part of the analysis. Morgan argues that the

officers exceeded the scope of the stop by doing more than issuing a citation and

checking for outstanding arrest warrants. In particular, he complains that the officers

ordered him to get off his bicycle and ended up taking him to the ground and then

tasering him. For the reasons given below, we hold that the officers acted reasonably

under the Fourth Amendment.




                                             6
                                            A

       Morgan concedes that in an ordinary traffic stop, officers may issue a citation,

request a driver’s license, and determine whether outstanding warrants exist. But

because Oklahoma law does not require Morgan to have a driver’s license to ride his

bicycle, Morgan argues that Officer Barnhart could not ask to see identification.

From this, Morgan claims that Officer Barnhart exceeded the permissible scope of

the traffic stop, which, he says, is limited to issuing a citation and running a

background check. He contends that Officer Barnhart exceeded the permissible scope

of the stop by asking for identification and by ordering him to get off his bicycle. We

disagree.

       First, Officer Barnhart’s request for identification didn’t exceed the scope of

the traffic stop. See United States v. Rice, 483 F.3d 1079, 1083–84 (10th Cir. 2007).

Courts have long recognized that “questions concerning a suspect’s identity are a

routine and accepted part” of police investigations. Hiibel v. Sixth Judicial Dist. Ct.

of Nev., 542 U.S. 177, 186 (2004). “Knowledge of identity may inform an officer that

a suspect is wanted for another offense, or has a record of violence or mental

disorder.” Id. Thus, as part of the lawful stop, the Fourth Amendment authorized

Officer Barnhart to determine Morgan’s identity, to run a background check, and to

issue a citation.

       Here, Morgan doesn’t dispute that Officer Barnhart could detain him as long

as necessary to write a citation and run a background check. But to do so, Officer

Barnhart needed to determine Morgan’s identity. When Morgan gave a false name, he

                                            7
delayed the officer’s ability to learn his true identity. In that situation, Officer

Barnhart could not immediately write a citation and complete the stop. Thus, Morgan

himself extended the stop. Officer Barnhart didn’t exceed its scope by trying to

determine Morgan’s identity.

       Second, Morgan argues that Officer Barnhart exceeded the scope of the traffic

stop by ordering him to get off his bicycle. At the outset, we note one significant

difference between Morgan and the defendants in the cases he cites. In Pennsylvania

v. Mimms, 434 U.S. 106 (1977) and Wilson, the defendants complied with the

officers’ orders to get out of the car, resulting in an incremental increase in their

seizures. In contrast, Morgan disobeyed Officer Barnhart’s order to get off his

bicycle. Morgan cites no cases concluding that officers violate the Fourth

Amendment during an otherwise-lawful seizure when they order a suspect to do

something, and the suspect does not comply.

       Further, even had Morgan complied and stepped off his bicycle, he still could

not show that Officer Barnhart violated his Fourth Amendment rights. “The

touchstone of our analysis under the Fourth Amendment is always ‘the

reasonableness in all the circumstances of the particular governmental invasion of a

citizen’s personal security.’” Mimms, 434 U.S. at 108–09 (quoting Terry, 392 U.S.

at 19). Reasonableness depends “on a balance between the public interest and the

individual’s right to personal security free from arbitrary interference by law

officers.” Id. (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)). In

Mimms, the Supreme Court held that a police officer may, as a matter of course,

                                             8
order a driver of a lawfully stopped car to get out of it. Id. at 111. The Court

explained that this additional intrusion is “de minimis” because “[t]he driver is being

asked to expose to view very little more of his person than is already exposed.” Id. In

Wilson, the Supreme Court extended Mimms to passengers in lawfully stopped

automobiles. 519 U.S. at 410.

      Here, we see little difference between Officer Barnhart’s ordering Morgan off

his bicycle and an officer’s asking a driver to step out of an automobile. In fact, in

our view, stepping off a bicycle is less intrusive than stepping out of a car. Morgan

argues that Officer Barnhart was unjustified in ordering him off the bicycle because

Officer Barnhart could already see him. But consistent with Mimms, Officer

Barnhart’s ordering Morgan off his bicycle was “at most a mere inconvenience.” Id.

And we conclude that public-interest concerns outweighed any personal-liberty

intrusion or inconvenience. After all, Officer Barnhart had reason to believe Morgan

posed a flight risk on his bicycle. We cannot fault the police for trying to minimize

flight risks and the safety concerns that flight and pursuit would entail. Thus, we

conclude that after lawfully stopping Morgan, Officer Barnhart did not violate the

Fourth Amendment by ordering him to get off the bicycle.

      Next, Morgan argues that the officers exceeded the scope of the stop by

grabbing him, forcing him to the ground, and tasering him. Morgan argues that these

acts transformed his seizure into an arrest without probable cause. But after making

lawful stops, officers can use force “to the extent that ‘such steps are reasonably

necessary to protect their personal safety and to maintain the status quo.’” United

                                            9
States v. Mosley, 743 F.3d 1317, 1328–29 (10th Cir. 2014) (quoting Novitsky v. City

of Aurora, 491 F.3d 1244, 1254 (10th Cir. 2007)). In view of the circumstances, once

Morgan disobeyed earlier commands and reached inside his left front pants pocket,

the officers acted reasonably to protect their personal safety. In analyzing whether the

officers acted reasonably, we apply an objective standard and ask whether “the facts

available to the officer at the moment of the seizure . . . ‘[would] warrant a man of

reasonable caution in the belief’ that the action taken was appropriate.” Gallegos v.

City of Colorado Springs, 114 F.3d 1024, 1030–31 (10th Cir. 1997) (quoting United

States v. McRae, 81 F.3d 1528, 1536 (10th Cir. 1996)). If so, officers may protect

their safety with appropriate force, including “drawing their weapons, placing a

suspect in handcuffs, or forcing a suspect to the ground.” Mosley, 743 F.3d at 1329

(quoting Novitsky, 491 F.3d at 1254) (internal quotation marks omitted).

      In United States v. Hood, 774 F.3d 638 (10th Cir. 2014),2 we rejected a

defendant’s argument that a stop became an arrest without probable cause when

officers handcuffed and frisked him. Id. at 642–43. Officers encountered Hood at an

apartment complex while they were investigating a string of burglaries. Id. at 641. As

the officers walked back toward the apartment complex from the parking lot, a

resident shouted to them that someone, later identified as Hood, was running from the

apartment they were investigating. Id. Officers chased Hood until they found him in

the complex. Id. Though it was unseasonably warm, Hood was wearing a winter

      2
        Though we overruled a separate holding in Hood in United States v. Titties,
__ F.3d __, 2017 WL 1102867 (10th Cir. 2017), Hood remains in force for the
proposition cited.
                                           10
jacket. Id. As Hood frantically fumbled for something in his jacket, the officers drew

their firearms and ordered him to the ground. Id. Once lying on the ground, Hood

appeared to be grasping for something beneath him. Id. The officers handcuffed and

frisked him. Id. During the frisk, they found a 9mm pistol in his jacket pocket. Id.

at 641–42. Like Morgan, Hood sought to suppress evidence of the firearm, arguing

that by ordering him to the ground, the officers exceeded the scope of the stop and

transformed the stop into an arrest without probable cause. Id. at 642.

      We rejected Hood’s argument after concluding that safety concerns fully

justified the officers in drawing their firearms, ordering Hood to the ground, and

handcuffing and frisking him to protect their safety. Id. at 643–44. Here, Officer

Barnhart stopped Morgan in a high-crime area. When asked to get off his bicycle,

Morgan refused twice. And despite Officer Barnhart’s orders to keep his hands out of

his pockets, Morgan reached inside his left front pants pocket. These actions

reasonably caused the officers to believe he might be reaching for a weapon.

      Under these circumstances, and consistent with Hood, we conclude that the

officers were justified in physically forcing Morgan to the ground to protect their

own safety. And once Morgan refused to comply with the officers’ orders to remove

his hands from beneath him, the officers were justified in tasering Morgan to

handcuff him. Thus, the district court did not err in denying Morgan’s motion to

suppress evidence of the firearm.




                                          11
                                  CONCLUSION

      For these reasons, we affirm the district court’s denial of Morgan’s motion to

suppress.




                                         12
