                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          MAY 21 2003
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,                        No. 02-4116
 vs.                                             (D.C. No. 2:01-CR-476 W)
                                                         (D. Utah)
 TROY ALLEN GORMAN,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before TACHA, Chief Judge, HOLLOWAY, and KELLY, Circuit Judges.


       Defendant-Appellant Troy Allen Gorman was indicted on one count of

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

(“Count I”), one count of possession of a firearm by an unlawful user of

controlled substances, in violation of 18 U.S.C. § 922(g)(3) (“Count II”), and one

count of possession of marijuana, in violation of 21 U.S.C. § 844 (“Count III”).

Following the district court’s denial of his motion to suppress the evidence seized

during a search of his person and its denial of various other pre-trial motions, Mr.



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Gorman pleaded guilty to Count I, and the government dismissed Counts II and

III. In so doing, Mr. Gorman reserved his right to appeal the district court’s

orders and rulings denying his pre-trial motions. The district court thereafter

sentenced Mr. Gorman to 57 months of imprisonment, and this appeal followed.

On appeal Mr. Gorman argues that (1) the district court erred in denying his

motion to suppress because the officers searched him without a reasonable belief

that he was armed and presently dangerous, and (2) the district court erred in

adding two criminal history points at sentencing pursuant to a prior, deferred

sentence. Our jurisdiction arises under 28 U.S.C. § 1291, and we REVERSE.



                                    Background

      The relevant facts as found by the district court are as follows. On

September 20, 2000, Mr. Gorman was a passenger in a vehicle stopped by Deputy

Jason Ashment (“Ashment”) for a broken taillight and expired registration. While

he was issuing the driver a citation, Ashment noticed some wires protruding from

under the driver’s seat that appeared to be attached to some stereo equipment.

Because it was early in the morning and several automobile burglaries had

occurred in the area, Ashment questioned the driver about the equipment and

asked for, and obtained, consent to search the vehicle. After the driver

voluntarily exited the vehicle, Ashment repeatedly asked Mr. Gorman to do


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likewise so as to permit a search of the car. Mr. Gorman refused to comply with

these requests, however, and stated to Ashment his belief that he had a right to

remain in the vehicle. By this time three other deputies had arrived on the scene,

which freed Ashment to focus his attention on the driver. The newly-arrived

deputies also ordered Mr. Gorman from the car, and “advised him that we wanted

to search him for weapons.” II R. at 57. After Mr. Gorman continued to refuse to

exit the vehicle due to his reluctance to be searched and his belief that he had a

right to remain inside, one of these officers, Deputy Jason Mudrock (“Mudrock”),

opened the door to the vehicle, at which point Mr. Gorman voluntarily began to

exit and was ordered to “step on to the sidewalk and place his hands on top of his

head so he could be searched for weapons.” I R. Doc. 33 at 4.

      The district court found that when Mudrock commanded Mr. Gorman to

place his hands on his head, Mr. Gorman “turned away from the officers and

placed his hands out of sight and to his waistband,” and that this conduct occurred

“exactly as he was getting out of the car.” Id. at 7. Upon witnessing Mr.

Gorman’s conduct, and after he had taken a few steps away from the officers in a

northbound direction, II R. at 48-49, Mudrock grabbed Mr. Gorman and pinned

him against a nearby wall, reached around to the front of his waistband, and

retrieved the unloaded handgun at issue. II R. at 40, 61-62, 68-69, 72.




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                                     Discussion

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

the evidence in the light most favorable to the government, and accept the district

court’s findings of fact unless clearly erroneous. United States v. Higgins, 282

F.3d 1261, 1269 (10th Cir. 2002). Moreover, we review de novo the district

court’s ultimate determination of reasonableness under the Fourth Amendment.

Id. Whether police conduct is reasonable under the Fourth Amendment is

“measured in objective terms by examining the totality of the circumstances.”

Ohio v. Robinette, 519 U.S. 33, 39 (1996).

      The standard for determining whether a protective search for weapons in

the absence of probable cause to arrest or search is reasonable under the Fourth

Amendment has been established since the Supreme Court’s landmark decision in

Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Supreme Court concluded that an

officer may conduct a “reasonable search for weapons for the protection of the

police officer, where he has reason to believe that he is dealing with an armed and

dangerous individual.” Id. at 27. In Ybarra v. Illinois, 444 U.S. 85, 92-93

(1979), the Supreme Court reaffirmed this holding by stating that in the absence

of probable cause, a protective search of a person is justified under the Fourth

Amendment only if the officer has a “reasonable belief that [the defendant] was

armed and presently dangerous, a belief which this Court has invariably held must



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form the predicate to a patdown of a person for weapons.” See also United States

v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996).

      The government cites three factors which it believes combine to provide the

necessary reasonable belief here: (1) Mr. Gorman’s persistent refusal to exit the

vehicle when ordered to do so, (2) his production of a small pocket knife after the

officers asked him, while he was still seated in the vehicle, whether he had any

weapons, and (3) his “furtive movements”upon exiting the vehicle consisting of

turning away from the officers, taking “several steps” away from them, and

placing his hands near his waistband area. Aplt. Br. at 12-13. We disagree.

      As to his reluctance to exit the vehicle, we note that Mr. Gorman did

eventually exit the vehicle voluntarily, and that upon doing so he was ordered by

the officers to step onto the curb so he could be searched, even though the

officers had no reason to believe at that time that he was either armed or presently

dangerous. II R. at 54, 71.   Furthermore, we fail to see how Mr. Gorman’s

possession and subsequent surrender of a small pocket knife is relevant to the

question of whether he was armed and presently dangerous prior to his being

searched.

      We are left, therefore, with the movements made by Mr. Gorman upon

exiting the vehicle. The government appears to place primary importance on the

fact that Mr. Gorman’s hands disappeared from the officers’ sight at some point



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after he exited. Aplt. Br. at 12-15. Moreover, the record reveals that it was this

conduct which led the officers to be concerned for their safety. Indeed, Officer

Mudrock testified:

      Through my training and experience it is believed that a lot of people
      carry weapons in their waistband and we are taught at the academy
      and through our training that as soon as the hands disappear that is a
      safety hazard for us, and at that point I felt in fear for my safety as
      well as the other deputies on scene.

II R. at 62. Clearly, the deputies who eventually restrained and searched Mr.

Gorman were responding to the fact that Mr. Gorman’s hands were for some

period of time out of their line of sight. However, the testimony was

uncontroverted that the officers (1) observed no bulge in Mr. Gorman’s clothing

that could have indicated the presence of a weapon, id. at 55, 71 (2) had no

reasonable belief that he was engaged in any criminal activity, id. at 71, and (3)

had no reason to believe, other than the movement to his waist upon exiting the

vehicle, that he could have been armed and dangerous. Id. at 70, 71. This case

thus stands in stark contrast to the permissible search in Terry, where the court

found that the officer was justified in his belief that the defendant could be armed

and dangerous because he observed the defendant acting as though he was

preparing to commit a day-light robbery “which, it is reasonable to assume, would

be likely to involve the use of weapons.” Terry, 392 U.S. at 28.

       Moreover, because the officers could point to nothing indicating that Mr.



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Gorman might have been armed and dangerous prior to his alleged hand

movement to his waist, no reasonable suspicion existed to justify the order for

Mr. Gorman to step to the curb and place his hands on his head so he could be

searched. Therefore, the fact that Mr. Gorman refused to obey this order upon

exiting the vehicle cannot furnish any degree of suspicion. Cf. Wright v. Georgia,

373 U.S. 284, 291-92 (1963) (noting that “one cannot be punished for failing to

obey the command of an officer if that command is itself violative of the

Constitution.”)

      Consequently, to hold that the protective search here was consistent with

the strictures of the Fourth Amendment would be to hold that a Terry “frisk” of a

person is justified any time his or her hands go outside of the officers’ view, even

though the officers lack a reasonable suspicion that the person is engaged in

criminal activity and have no other specific indication that the individual might be

armed and dangerous. Although we are mindful of our obligation to assess the

reasonableness of the officers’ conduct by looking to the totality of the

circumstances, we are satisfied that consideration of all the factors cited by the

government does not support the conclusion that the officers were reasonable in

their belief that Mr. Gorman was armed and presently dangerous. We therefore

reverse the district court’s denial of Mr. Gorman’s motion to suppress the

handgun. In light of this conclusion we need not address Mr. Gorman’s argument



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that the district court erred in calculating his criminal history category.

      REVERSED and REMANDED.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




                                          -8-
02-4116, United States of America v. Gorman
TACHA , Chief Circuit Judge, dissenting

       I respectfully dissent. Considering, as we must, the totality of the

circumstances surrounding the search, I would hold that the officers had an

objectively reasonable, articulable suspicion that the defendant was armed and

dangerous.

       Defendant does not challenge as unlawful the initial stop of the vehicle in

which he was a passenger. Nor can he challenge the legality of his being ordered

from the car during a search pursuant to that stop.    Maryland v. Wilson , 519 U.S.

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

colorable assertion is that the officers who ultimately seized and searched him

lacked the necessary reasonable and articulable suspicion that he was armed and

dangerous. E.g., United States v. Davis     , 94 F.3d 1465, 1468 (10th Cir. 1996) (“In

the course of a valid investigative detention, an officer may conduct a limited

protective search (‘frisk’) if the officer harbors an articulable and reasonable

suspicion that the person is armed and dangerous.”).

       In arguing that the officers lacked any basis upon which to harbor the

necessary level of suspicion, defendant makes much of his voluntary surrender of

a small pocket knife. I am at a loss to perceive what relinquishing a Swiss-Army

knife, while retaining a handgun, demonstrates under the relevant analysis. I am
equally at a loss, however, to discern the government’s point in touting the

surrendered pocketknife as evidence that the defendant was “armed and

dangerous” when they later searched him. Our task is to determine, divorced

from questionable characterizations of the facts, whether the officers acted

reasonably under the totality of the circumstances. In doing so, we must give

“due weight . . . not to [any] inchoate and unparticularized suspicion or ‘hunch,’

but to the specific and reasonable inferences which [they were] entitled to draw

from the facts of [their] experience.”   Terry v. Ohio , 392 U.S. 1, 27 (1968).

       The majority quotes—but, I think, gives insufficient weight to—Officer

Mudrock’s testimony that, in his experience and as a result of his training, he

feared for his safety when, under the tense circumstances in which the officers

finally convinced the defendant to exit the vehicle, the defendant’s hands

disappeared in the region of his waistband.         I give some credence here to the

proposition that, in the experience of these officers, individuals traditionally carry

weapons in this area of their clothing. See id. I would, therefore, hold that the

defendant’s furtive movements upon finally exiting the vehicle and his reaching

for the waistband area of his pants while stepping away from the officers

combined to provide the necessary reasonable suspicion upon which the officers

relied to search that area of his clothing, in which they found the handgun

defendant seeks to suppress. To hold otherwise, it seems to me, fails to give the



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weight Terry instructs us to give to the reasonable inferences the officers were

entitled to draw from their experience.   Id.




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