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July 6, 2016
  United States v. Fager - Tenth Circuit
Case Name: United States v. Fager

Headline: Tenth Circuit Holds that Roadside Frisk for Weapons is Reasonable When Defendant's Passenger has Criminal History

Area of Law: Fourth Amendment, Search

Issue Presented: Whether the officers' concerns for their own safety gave them reasonable suspicion to frisk Defendant during a roadside frisk.

Brief Summary:

Defendant was stopped for failing to use a turn signal. The officer discovered that the passenger in the vehicle had multiple outstanding warrants for his arrest. Defendant consented to a search of his car while he waited in the back of the patrol car. The officer patted down Defendant to check for weapons and found a gun on his person. Defendant filed a motion to suppress the gun based on a lack of reasonable suspicion of dangerousness. The district court denied the motion to suppress.

Defendant appealed. The Tenth Circuit affirmed, holding that, based on a totality of the circumstances, the officers reasonably could have suspected that Defendant was armed and thus acted lawfully when they patted him down in concern for their own safety.

Extended Summary:

An officer initiated a traffic stop for a turn signal violation. The officer initially believed Defendant was impaired and found the passenger's behavior suspicious in that he was leaning forward, apparently to obstruct the officer's view of Defendant. The officer conducted a warrants check and learned that the passenger had several outstanding warrants for his arrest. A backup officer arrived and the two officers asked Defendant to step out of his car. They determined that Defendant was not impaired. Defendant then consented to a search of his car and, because it was cold outside, sat in the back of the patrol car.

The two officers, concerned that they were going to looking completely away from Defendant and the passenger during the vehicle search, patted down Defendant for weapons. The officers discovered the firearm at issue in Defendant's waistband and arrested Defendant for being a felon in possession of a firearm. Defendant filed a motion to suppress the firearm, arguing that the pat-down was unlawful. The district court denied the motion to suppress. Defendant entered a conditional guilty plea and exercised his right to appeal the denial.

First, Defendant argued that the two cases relied on by the district court, United States v. Manjarrez, 348 F.3d 881 (10th Cir.2003) and United States v. McRae, 81 F.3d 1528 (10th Cir.1996), were incorrectly decided. The Tenth Circuit disagreed, reestablishing the principle from these cases that when an officer must turn his or her back to a defendant, such as during a search of a vehicle, little beyond a concern for safety is necessary to support the officer's reasonable suspicion. In Manjarrez, the officer was similarly justified in frisking a driver before turning his back on him to search the vehicle given the dangerous nature of traffic stops to officers. A driver need not, as in the case of McRae, possess a violent criminal history for a search of the driver to justify when the driver turns his back on the driver prior to a search of the vehicle.

Second, the Tenth Circuit held that Defendant's case was not distinguishable from Manjarrez and McRae because of the presence of the second officer. In the context of a traffic stop, it was reasonable for the officers to be concerned that Defendant and the passenger could launch a coordinated attack, especially when the Defendant or passenger knew there were outstanding warrants. See United States v. Holt, 264 F.3d 1215, 1223 (10th Cir.2001) (en banc).

In addition, other circumstances justified reasonable suspicion. The officers could infer that the men would jointly try to conceal evidence of the passenger's outstanding warrants based on the suspicious behavior of the passenger. See United States v. Rice, 483 F.3d 1079, 1085 (10th Cir. 2007). And the traffic stop occurred in a high-crime area in nighttime darkness. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

To read the full opinion, please visit:

Panel: Holmes, Baldock, and Matheson

Date of Issued Opinion: January 21, 2016

Docket Number: No. 15-3104

Decided: The Tenth Circuit affirmed the district court's denial of Defendant's motion to suppress.

Case Alert Author: Veronica C. Gonzales-Zamora


Andrew J. McGowan, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Topeka, KS, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Office of the United States Attorney, Topeka, KS, for Plaintiff-Appellee.

Author of Opinion: Hon. Baldock

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 07/06/2016 11:51 AM     10th Circuit  

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