Facts
Around 9:00 p.m. on November 29, 2021, a Hattiesburg police officer stopped a car with a defective tag light. After the driver told the officer that he had neither identification nor proof of insurance, the officer asked him to step out of the car. While conducting a protective pat-down of the driver, the officer felt a hard, solid object in between the driver’s legs. The driver initially denied that the object was a weapon but eventually admitted that it was a firearm. The officer handcuffed the driver and placed him in his squad car.
The officer then approached the car and asked the passenger, Andrew Ducksworth, to step out. Ducksworth replied that he was paralyzed from the waist down. The officer asked Ducksworth to put his hands up, and Ducksworth complied. As he began a pat-down of Ducksworth, the officer stated to Ducksworth that the driver had a firearm. He felt an object between Ducksworth’s legs and said, “you’ve got one too.” Ducksworth denied that the object was a firearm. The officer handcuffed Ducksworth and awaited backup. After removing a loaded firearm from his pants and learning that he was a convicted felon, officers arrested Ducksworth.
Ducksworth was charged with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Ducksworth moved to suppress the firearm, arguing that the officer lacked reasonable suspicion to pat him down. At a hearing, the officer testified about the traffic stop and the pat-downs. Body- and dash cam footage corroborated his testimony. He also testified that, based on his patrol experience, he knew the area in which he stopped the vehicle was a high-crime area. The district court denied the motion.
At a bench trial, the district court found him guilty and sentenced him to thirty-six months of imprisonment and three years of supervised release. Ducksworth appeals the denial of his motion to suppress the firearm. The 5th affirms.
Analysis
Under Terry, an officer may perform a protective pat-down if he has reasonable suspicion that the subject is armed and dangerous. The officer need not be absolutely certain that the individual is armed. Here, the district court concluded that the officer had reasonable suspicion because: (1) the driver possessed a weapon and lied about it; (2) the surrounding area was “high crime”; and (3) Ducksworth did not comply with the officer’s instructions.
Ducksworth mainly argues that the officer’s pat-down was unlawful because the driver’s dishonesty about and possession of a firearm cannot be imputed to him. This court has not yet considered whether a driver’s possession of a firearm can create reasonable suspicion to pat-down his passenger. The First Circuit has held, however, that a driver’s possession of a firearm may give rise to reasonable suspicion to pat-down his passenger, at least when coupled with other circumstances. See United States v. Tiru-Plaza, 766 F.3d 111 (1st Cir. 2014). In Tiru-Plaza, after officers spotted a firearm in the waistband of the driver of a vehicle, they patted-down the passenger and found a firearm. The passenger argued that the officers lacked particularized reasonable suspicion to perform the pat-down. The First Circuit concluded that “the situation gave rise to a reasonable concern for officer safety—the officers were outnumbered, in relative darkness, and could reasonably believe that they were dealing with a volatile situation.
We agree with the First Circuit that it would be beyond folly for our court to ask police officers to ignore the clear relevance of discovering a hidden firearm on the driver —especially when the driver lied about having a weapon. Ducksworth shared a connection with the driver, who could not present identification or proof of insurance, possessed a hidden firearm, and lied about it—at night, in a public, high-crime area. And here, the sole officer was outnumbered. Taken together, these circumstances created a reasonable, individualized suspicion that Ducksworth could also be armed and dangerous.
The district court did not err in denying the motion to suppress.
https://www.ca5.uscourts.gov/opinions/pub/24/24-60473-CR0.pdf