1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-4-1997

United States v. Moorefield

Precedential or Non-Precedential:

Docket 96-3563

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Moorefield" (1997). 1997 Decisions. Paper 77.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/77
1

 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. 
2

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 
3

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 
4

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 
5

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 wellestablished 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). 
6

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 
7

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 
8

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 
9

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 
10

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 patdown 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.