On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 95-cr-00045-2)
BEFORE: COWEN, McKEE and JONES, *fn1 Circuit Judges
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.
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 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 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 ...