FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-10398 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00403-DGC

DALE WASHINGTON ORMAN,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

April 18, 2007—San Francisco, California

Filed May 22, 2007

Before: Alfred T. Goodwin, Dorothy W. Nelson, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

6009
COUNSEL

Milagros A. Cisneros, Assistant Federal Public Defender,

Phoenix, Arizona, for the appellant. 

Michael A. Lee, Special Assistant United States Attorney,

Phoenix, Arizona, for the appellee. 

OPINION

CALLAHAN, Circuit Judge: 

Dale Washington Orman was convicted of unlawful possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2), pursuant to a conditional guilty plea. His conviction stems from the seizure of a handgun by an off-duty

police officer at a Phoenix mall that prohibits patrons from

carrying weapons while on the premises. On appeal he challenges the district court’s denial of his motion to suppress the

firearm, arguing that he did not consent to the seizure of the

gun and that the seizure required reasonable suspicion or

probable cause that a crime had been committed. He argues

further that neither reasonable suspicion nor probable cause

existed and that the search was not justified for officer safety

purposes.

FACTS & PROCEDURAL HISTORY1

On August 20, 2004, at approximately 3:45 p.m., Orman

and his wife entered the Paradise Valley Mall in Phoenix. An

1The facts are taken from the district court’s order granting in part and

denying in part Orman’s suppression motion. Officers Ferragamo, Tomasi,

Larson and Bernal, mall director Hoskinson, a defense investigator, and

Orman testified at the suppression hearing. The district court found the

officers’ testimony more credible than Orman’s and resolved factual disputes in the government’s favor. 

6012 UNITED STATES v. ORMAN
employee of the local utility company, Arizona Public Service

(“APS”), reported to mall personnel that he observed a man

(later identified as Orman) place a handgun in his boot before

entering the mall. The APS employee described the man as

white, wearing a white tank top, and covered with tattoos. He

reported that the man entered the southwest area of the mall

near Starbucks. 

Mall security director Donald Hoskinson received this

information by radio, and contacted Officer John Ferragamo

of the Phoenix Police Department, who was working at the

mall as an off-duty police officer. With the help of another

security officer who advised Hoskinson by radio that he had

seen the man in question, Officer Ferragamo located Orman

near Dillard’s department store at the northeast end of the

mall. Orman matched the physical description provided by the

APS employee. 

Officer Ferragamo approached Orman, and from a distance

of about six to eight feet asked “excuse me, may I speak to

you?” Orman said “sure” and Ferragamo motioned Orman

away from the foot traffic and toward a store window. Once

away from the flow of foot traffic, Ferragamo told Orman that

he had information that Orman may be carrying a gun and

asked Orman if that were true. Orman admitted to carrying a

gun and apologized. Ferragamo did not see a gun in Orman’s

boot, but he noticed a small bulge under Orman’s shirt and

asked Orman where the gun was located. Orman pointed to

his waist band and Ferragamo retrieved a 9 mm Glock handgun.2

Hoskinson, who was wearing business clothes, did not participate in the encounter. He remained about 20 feet behind

and to the left of Ferragamo. Officer Brody Tomasi, who was

also working as an off-duty police officer at the mall,

2Orman testified that he denied having a gun in his boot and never told

Ferragamo that he had a gun in his waistband. Instead, he claimed that he

was patted down for the gun. 

UNITED STATES v. ORMAN 6013
approached the Dillard’s area after hearing about the suspected gunman on his radio. He stopped about 10 feet from

Ferragamo and Orman, behind and to the left of Orman. He

monitored the situation. He did not draw his gun or participate

in the contact. 

Two other police officers, Roger Larson and Oscar Bernal,

entered the mall after being informed by security about a man

with a gun. Officer Larson approached Ferragamo and Orman

while they were talking by the storefront after Ferragamo had

retrieved the handgun. Larson observed the situation as calm

and Orman as being cooperative. 

Ferragamo then informed Orman that he wanted to continue the conversation in the mall security office.3

 Orman

agreed, and he and his wife accompanied Ferragamo and

Tomasi to the office. Orman was not handcuffed and was not

asked about the gun during the walk. Upon reaching the

security office, Ferragamo placed Orman under arrest for carrying a concealed weapon.4

 After completing a records check,

Ferragamo read Orman his Miranda rights and questioned

him. According to Ferragamo, Orman confirmed his criminal

history and explained that the gun belonged to his wife and

that he took it into the mall because they did not want to leave

it in their open air vehicle.5

3Orman testified that immediately after Ferragamo retrieved the gun,

Ferragamo asked him if he had ever “been busted” and done “hard time.”

4Arizona Revised Statute § 13-3102(A) prohibits the carrying of a concealed weapon without a permit, and possession of a deadly weapon by

a prohibited possessor. A convicted felon is both a prohibited possessor

and ineligible to obtain a concealed weapons permit. Ariz. Rev. Stat. § 13-

3101(A)(6), 13-3112(E)(3). 

5

In contrast, Orman testified that he did not answer any questions for

Ferragamo once they arrived in the mall security office and he never told

Ferragamo that he and his wife did not want to leave the gun in their vehicle. 

6014 UNITED STATES v. ORMAN
Orman was charged in federal court with being a felon in

possession of a handgun. He moved to suppress the seizure of

the gun and statements made at the scene, arguing that Ferragamo lacked reasonable suspicion to detain him because (1)

the APS employee tip was not reliable, and (2) the tip did not

establish that Orman was committing a crime because carrying a concealed weapon is authorized under state law. He also

argued that the encounter was not consensual and immediately custodial, requiring probable cause and Miranda warnings. 

The district court granted the motion in part. It concluded

that Ferragamo’s conversation with Orman in the mall was

consensual. Alternatively, the district court held that Ferragamo had reasonable suspicion to detain Orman. It also held

that Orman was not subject to custodial interrogation in the

mall. However, the district court concluded that Ferragamo

lacked probable cause to arrest Orman because, at the time of

arrest, Ferragamo did not know whether Orman had a permit

to carry the weapon. The district court recognized that

Orman’s testimony—regarding Ferragamo asking him in the

mall whether he had been busted or done hard time—arguably

would establish probable cause for an arrest. However, it

rejected Orman’s version of the events. Accordingly, the district court ordered the suppression of information obtained

from Orman upon his arrest at the security office.6

ANALYSIS

A. Standard of Review

Motions to suppress are reviewed de novo. United States v.

Meek, 366 F.3d 705, 711 (9th Cir. 2004). The district court’s

factual findings are reviewed for clear error. United States v.

Bynum, 362 F.3d 574, 578 (9th Cir. 2004).

6The district court’s conclusion that probable cause did not exist for the

arrest was a hollow victory for Orman because no otherwise undiscoverable evidence leading to his conviction was obtained after the arrest. 

UNITED STATES v. ORMAN 6015
B. The Conditions Precedent to a Lawful Protective Search

As a preliminary matter, we address Orman’s contention

advanced at oral argument that Terry v. Ohio, 392 U.S. 1

(1968), requires that Officer Ferragamo have reasonable suspicion that a crime was being committed before he could lawfully retrieve Orman’s gun for officer safety purposes, even

if the encounter was consensual. 

[1] Terry held that a brief investigatory detention, while

constituting a seizure, is not a violation of the Fourth Amendment provided that the police officer has reasonable suspicion

“that criminal activity may be afoot.” Id. at 30. Terry also

held that in the course of a lawful investigatory stop, a police

officer also may lawfully pat down the detained individual for

weapons provided that the officer has reasonable suspicion

that the person “may be armed and presently dangerous.” Id.

However, contrary to Orman’s assertion, Terry did not cabin

the use of officer safety patdowns to lawful investigatory

detentions. 

In United States v. Flippin, 924 F.2d 163 (9th Cir. 1991),

we rejected an argument similar to the position advanced by

Orman. In Flippin, two police officers were in a woman’s

motel room pursuant to her consent. Id. at 164. An officer had

visited her the previous day to determine the identity of her

male companion who had been arrested for possession of drug

paraphernalia. Id. When she would not produce her identification, the police returned the following day to investigate her

identity. Id. Her male companion had been released from jail

and was also present. Id. Upon entering the room, the police

patted down the male for weapons. Id. When the male and

one of the police officers left the room, the female grabbed a

makeup bag, held it close to her, and refused to relinquish it.

Id. The officer forcibly took the bag from her for fear that she

was attempting to arm herself. Id. Based on the bag’s weight,

he suspected that it contained a loaded gun. Id. He opened the

bag and found a gun and cocaine. Id. 

6016 UNITED STATES v. ORMAN
We explained in Flippin that a Terry stop-and-frisk “constitutes two independent actions, each requiring separate justifications. The stop must be based on a suspicion of criminal

activity and the frisk on a reasonable suspicion that the person

is armed.” Id. at 165 n.2 (citing United States v. Thomas, 863

F.3d 622, 628 (9th Cir. 1988)). We also explained that only

the frisk portion of Terry was implicated in Flippin because

the police officer’s presence in the motel room was consensual. Id. 

[2] The defendant in Flippin argued that the constitutional

hurdle to entering the motel room—i.e., a search or an arrest

warrant or exigent circumstances—must be overcome before

the police could undertake a protective weapon’s search. We

rejected this argument, holding that following a consensual

entry, a probable cause predicate is not needed to undertake

a weapon’s patdown when reasonable suspicion exists that a

person is armed. Id. at 165-66. 

Flippin relied on Maryland v. Buie, 494 U.S. 325 (1990),

which allowed for a protective sweep of a residence for dangerous individuals following execution of an arrest warrant at

the residence. In Buie, the Supreme Court explained that officer safety both during and after an arrest justifies the necessity

of a protective sweep for dangerous persons to protect the

officer from harm. Id. at 333-34. Therefore, the Court recognized that a protective sweep is not limited to the patdown of

lawfully seized individuals. Id. at 332-34, 334 n.2 (citing

Michigan v. Long, 463 U.S. 1032 (1983) (holding the protective sweep of a glove box reasonable under Terry when officer had a reasonable belief that the suspect was potentially

dangerous), and Ybarra v. Illinois, 444 U.S. 85, 92-93 (1980)

(holding patdown of tavern patron unlawful during execution

of warrants to search the premises and arrest the bartender

because officer lacked reasonable suspicion that patron was

armed and dangerous)). 

Flippin summarized: 

UNITED STATES v. ORMAN 6017
The protective search was upheld in Buie because

the police had a legitimate right to enter the home

and “[o]nce inside, the potential for danger justified

a standard of less than probable cause for conducting

a limited protective sweep.” 

924 F.2d at 165 (quoting Buie, 494 U.S. at 334 n.1). 

Accordingly, our inquiry is twofold. We must affirm

Orman’s conviction if we determine that Ferragamo (1) was

acting in a lawful situation when he seized the gun from

Orman’s waistband, and (2) had reasonable suspicion that

Orman was armed. Id. at 165 n.2, 167. Here, either consent

or reasonable suspicion would support the lawfulness of Ferragamo’s contact with Orman.

C. The Encounter was Consensual 

[3] Orman argues that his contact with Officer Ferragamo

in the mall was an immediate seizure within the rubric of the

Fourth Amendment because he was not “free to leave.” The

Supreme Court, however, has held that not all encounters with

law enforcement implicate the Fourth Amendment. 

In Florida v. Bostick, 501 U.S. 429 (1991), the Court examined whether a police encounter on a bus constituted a seizure

under the Fourth Amendment. The Court wrote that “a seizure

does not occur simply because a police officer approaches an

individual and asks a few questions.” Id. at 434. The Court

explained: “ ‘Obviously, not all personal intercourse between

policemen and citizens involves ‘seizures’ of persons. Only

when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen

may we conclude that a ‘seizure’ has occurred.’ ” Id. (quoting

Terry, 392 U.S. at 19 n.16). See also Florida v. Royer, 460

U.S. 491, 497 (1983) (explaining that “law enforcement officers do not violate the Fourth Amendment by merely

approaching an individual on the street or in another public

6018 UNITED STATES v. ORMAN
place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing

to listen”). 

[4] The Court explained that the crucial test is “whether,

taking into account all of the circumstances surrounding the

encounter, the police conduct would ‘have communicated to

a reasonable person that he was not at liberty to ignore the

police presence and go about his business.’ ” 501 U.S. at 437

(internal citations omitted). The Court described the reasonable person test as presupposing an innocent person. Id. at 438

(citing Royer, 460 U.S. at 519 n.4 (Blackmun, J., dissenting)).

Applying Bostick’s totality of the circumstances test, we

held that an encounter rose to the level of a seizure when three

law enforcement officers and a bank investigator met a suspect in his apartment building lobby, the lead agent said to the

suspect “let’s go into your apartment,” and the group followed

the suspect up three flights of stairs to his apartment.

Orhorhaghe v. INS, 38 F.3d 488, 491 (9th Cir. 1994). Our

opinion relied on the following considerations: (1) the suspect

was faced with “the threatening presence of several officers,”

(2) the lead agent made it clear to the suspect that he was carrying a weapon, (3) the encounter was in a non-public setting,

and (4) the lead agent acted in “an officious and authoritative

manner.” Id. at 494-95. 

Relying on Orhorhaghe, Orman contends that he was not

free to leave because Ferragamo was uniformed and told him

to step to the side of the foot traffic in the mall, i.e., away

from the public and to a private space. Orman “felt that any

exit [he] had was blocked” and “knew [that he] didn’t have

any question of walking away at the time from that point.”

Plus, Orman argues that a seizure occurred because Ferragamo did not advise him that he had the right to terminate

their encounter. 

The district court, however, disagreed with Orman’s position. It found that the encounter was “consensual, polite, and

UNITED STATES v. ORMAN 6019
without coercion,” that the record does not establish an overbearing law enforcement presence in the mall, and that a reasonable person would not believe that he was detained or

taken into custody during the brief conversation in the mall.

[5] We agree with the district court. A reasonable innocent

person would not feel that he was being detained by a police

officer who politely asked him if he could have a word with

him and quickly inquired about a handgun. This case is distinguishable from Orhorhaghe because Officer Ferragamo was

carrying a radio and never drew his gun. Moreover, Officer

Tomasi, who was about 20 feet behind Ferragamo, was not

threatening. Additionally, the encounter was brief—lasting

three to four minutes—and occurred in a public setting.

Finally, the consensual nature of the encounter is not undermined by Ferragamo’s failure to expressly tell Orman that he

was free to leave. See INS v. Delgado, 466 U.S. 210, 216

(1984) (“While most citizens will respond to a police request,

the fact that people do so, and do so without being told they

are free not to respond, hardly eliminates the consensual

nature of the response.”). Accordingly, we agree with the district court that the encounter was consensual.7

D. The Gun was Lawfully Seized

The Supreme Court in Terry explained that a search for

weapons is justified by the “immediate interest of the police

officer in taking steps to assure himself that the person with

whom he is dealing is not armed with a weapon that could

unexpectedly and fatally be used against him,” and that

“[c]ertainly it would be unreasonable to require that police

officers take unnecessary risks in the performance of their

duties.” 392 U.S. at 23. Terry also noted that it would be

“clearly unreasonable to deny the officer the power to take

7Because we affirm the district court determination that the encounter

was consensual, we do not need to consider its alternate holding that the

encounter was supported by reasonable suspicion. 

6020 UNITED STATES v. ORMAN
necessary measures to determine whether the person is in fact

carrying a weapon and to neutralize the threat of physical

harm.” Id. at 24. 

[6] Pursuant to Terry, a search for weapons must be objectively reasonable. The Court framed the inquiry as “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, and repeatedly acknowledged that each case

will have to be decided on its own facts. Id. at 19, 30. Moreover, in Adams v. Williams, 407 U.S. 143, 146 (1972), the

Court noted that the purpose of a limited protective search for

weapons is to allow a police officer to pursue his work without fear of violence, and explained that the need for a protective search applies regardless of whether carrying a concealed

weapon violates any applicable state law. 

[7] Here Officer Ferragamo’s reasonable suspicion that

Orman was carrying a gun, which is all that is required for a

protective search under Terry, quickly rose to a certainty

when Orman confirmed that he was carrying a gun. Indeed,

the retrieval of the gun was less intrusive than the patdown in

Terry—Orman pointed to his waistband at which time Ferragamo raised Orman’s shirt and retrieved the gun. 

[8] Officer Ferragamo testified at the suppression hearing

that he retrieved the gun for officer safety purposes and that

his only concern was that Orman “might have a gun.”

Although he also testified that Orman “acted perfectly — very

cordial,” under Terry and its progeny a reasonably prudent

man in Ferragamo’s circumstances would be warranted in

retrieving the gun for his safety and the safety of the mall

patrons. Cf. New York v. Quarles, 467 U.S. 649, 656 (1984)

(rejecting argument that public safety exception to the

Miranda warning should not be recognized based on officer’s

subjective motivation revealed at suppression hearing). 

[9] The gun was readily accessible to Orman, who was

standing only inches from Ferragamo. See Pennsylvania v.

UNITED STATES v. ORMAN 6021
Mimms, 434 U.S. 106, 112 (1977) (holding that a Terry search

was reasonable when a police officer frisked a man stopped

for driving with an expired license plate when the man

stepped out of the car and the officer noticed a large bulge

under his jacket, explaining that “any man of reasonable caution would likely have conducted the pat down”) (internal

quotation marks omitted); Ybarra, 444 U.S. at 93 (describing

the Terry doctrine as allowing for a patdown for weapons that

the officer “reasonably believes or suspects are then in the

possession of the person he has accosted”). Furthermore, the

mall was crowded and at a minimum, Ferragamo needed to

see that the gun was removed from the premises without

endangering his safety or the safety of the mall patrons. As in

Terry, 

the record evidences the tempered act of a policeman

who in the course of an investigation had to make a

quick decision as to how to protect himself and others from possible danger, and took limited steps to

do so. 

329 U.S. at 28. 

CONCLUSION

[10] We hold that Officer Ferragamo’s initial encounter

with Orman was consensual and that Ferragamo lawfully

seized the gun for safety purposes. The seizure of the gun was

not contrary to the Fourth Amendment, and the district court’s

judgment is AFFIRMED. 

6022 UNITED STATES v. ORMAN