                                                                                                                           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Precedential or Non-Precedential: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 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.



                                  1
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


                                2
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


                                 3
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


                                 4
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).




                                  5
                                  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


                                  6
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



                                7
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.




                                10
