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United States v. Morgan

United States Court of Appeals, Tenth Circuit

May 2, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
PHILLIP LAMONT MORGAN, Defendant-Appellant.

         Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:13-CR-00218-JHP-1)

          Julia L. O'Connell, Federal Public Defender, and Barry L. Derryberry, Research and Writing Specialist, Office of the Federal Public Defender, Northern District of Oklahoma, Tulsa, Oklahoma, for Defendant-Appellant.

          Danny C. Williams, Sr., United States Attorney, and Neal C. Hong, Assistant United States Attorney, Northern District of Oklahoma, Tulsa, Oklahoma, for Plaintiff-Appellee.

          Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.

          PHILLIPS, CIRCUIT JUDGE. [*]

         The Fourth Amendment protects the people against unreasonable searches and seizures. U.S. Const. amend. IV. A traffic stop is a seizure but is "reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 809-10 (1996). After a lawful traffic stop, an officer has authority to order the driver and passengers from the car. Maryland v. Wilson, 519 U.S. 408, 410 (1997). Here, we consider whether an officer has authority to order a person to step off his bicycle after a lawful traffic stop. Under the circumstances of this case, we hold that the officer had that authority.

         BACKGROUND

         On September 28, 2013 at about 10:30 p.m., Officer Brent Barnhart was patrolling a high-crime area in Tulsa, Oklahoma, when he saw a man riding a bicycle against traffic and not using a bicycle headlight, in violation of Tulsa's traffic law.[1]Unknown to Officer Barnhart, the bicyclist was Phillip Lamont Morgan, who had a string of felony convictions: (1) unlawful possession of a firearm and ammunition, (2) accessory after the fact to first-degree murder, (3) unlawful possession of a controlled drug, and (4) unlawful possession with intent to distribute a controlled drug.

         Upon approaching Morgan, Officer Barnhart saw him "making movements towards his pant pockets." R. Vol. 2 at 44. Officer Barnhart told Morgan to keep his hands out of his pockets. Then Officer Barnhart asked Morgan for identification. Morgan replied that he had done nothing wrong and had no identification. Officer Barnhart asked for Morgan's personal identifiers, and Morgan gave a name (Stanford Wallace), a birthdate, and a social security number. Before returning to his patrol car to run Morgan's personal identifiers through databases, Officer Barnhart again told Morgan to keep his hands outside his pockets.

         After Officer Barnhart ran the name Stanford Wallace, the birthdate, and the social security number through the databases, he received back a "no result" response, which led him to suspect that Morgan had lied about his identity. Id. at 23. A "no result" response means that no match exists for the information entered. Id. In contrast, a "negative result" response means that a traceable record exists (such as an ID card or a driver's license) and that the suspect had no outstanding warrants or criminal history.

         From the outset, Officer Barnhart believed that Morgan was acting evasively. In particular, he noted that as Morgan sat on his bicycle, he kept his head and body straight forward, not making eye contact. Based on the way Morgan kept moving his head back and forth, Officer Barnhart feared that Morgan might flee. Based on all he had seen and heard, Officer Barnhart believed that Morgan was trying "to hide criminal activity." Id. at 23-24.

         After Morgan's information produced no results, Officer Barnhart called for backup, reapproached Morgan, and asked him to step off his bicycle. After Morgan refused, Officer Barnhart warned him that "if he didn't step off the bicycle, . . . he would be tased." Id. at 25. Morgan responded that "he had been tased before and he was currently in a lawsuit with the City of Tulsa over that incident." Id. This strengthened Officer Barnhart's suspicion that Morgan had provided false information, because he believed that the record check would have revealed this earlier incident.

         Officer Barnhart's backups arrived quickly. Officer Barnhart told Morgan to step off his bicycle, and again, Morgan refused. But this time, Morgan reached toward and inside his left front pants pocket. Officer Barnhart immediately grabbed Morgan's left arm, fearing that Morgan might grab a concealed weapon. In trying to control Morgan's hands, Officer Barnhart and other officers forced Morgan to the ground. Once on the ground, Morgan planted his arms under his stomach, preventing the officers from handcuffing him. After Morgan ignored the officers' commands to show his hands, an officer tasered him, enabling the officers to handcuff him.

         After the officers handcuffed Morgan, Officer Barnhart frisked him for weapons and found a loaded .38-caliber revolver in Morgan's left front pants pocket. Officers transported Morgan to the station, where ...


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