from the United States District Court for the Northern
District of Oklahoma (D.C. No. 4:13-CR-00218-JHP-1)
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.
C. Williams, Sr., United States Attorney, and Neal C. Hong,
Assistant United States Attorney, Northern District of
Oklahoma, Tulsa, Oklahoma, for Plaintiff-Appellee.
BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.
PHILLIPS, CIRCUIT JUDGE. [*]
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.
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.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
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
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.
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.
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.
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
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 ...