United States Court of Appeals For the First Circuit
No. 24-1264
UNITED STATES OF AMERICA,
Appellant,
v.
MIGUEL E. PAVAO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary S. McElroy, U.S. District Judge]
Before
Rikelman and Kayatta,* Circuit Judges.
Zachary A. Cunha, U.S. Attorney, for appellant. John L. Calcagni III, with whom Law Office of John L. Calcagni III, Inc. was on brief, for appellee.
April 17, 2025
* Judge Selya heard oral argument in this case and participated in the initial semble thereafter. His death on February 22, 2025, ended his involvement in this case. The remaining two panelists issued this opinion pursuant to 28 U.S.C. § 46(d). Per Curiam. During a lawful traffic stop on a public
highway in Rhode Island, a local police officer smelled marijuana
emanating from the stopped vehicle. Based on the presence of
marijuana and the driver's behavior, the officer concluded that he
should call for backup and mount a search. While waiting for
backup, the driver -- defendant-appellee Miguel E.
Pavao -- continued to exhibit peculiar behavior, including
repeatedly reaching toward his waistband. After a second officer
arrived, the first officer conducted a pat-down search of the
defendant to ensure officer safety. The search revealed that the
defendant, a person previously convicted of a felony, unlawfully
possessed a firearm. See 18 U.S.C. § 922(g)(1).
In due course, the defendant's conduct came to the
attention of the government, which charged him with a federal
offense: possession of a firearm after previously being convicted
of a felony. See id. As pretrial proceedings progressed, the
defendant moved to suppress the firearm and all statements made
during the stop and the pat-down. The district court granted the
motion to suppress and later denied the government's motion for
reconsideration. This interlocutory appeal followed.
In its present posture, the appeal requires us to
determine whether the officer acted lawfully both when he prolonged
the traffic stop and when he conducted the pat-down frisk.
Concluding, as we do, that the officer had reasonable suspicion
- 2 - sufficient to justify his actions, we reverse the district court's
grant of the defendant's motion to suppress and remand for further
proceedings consistent with this opinion.
I.
We briefly rehearse the pertinent facts (most of which
are uncontroverted). On February 6, 2022, Connor Bemis, a Warwick,
Rhode Island police officer, stopped the defendant's vehicle after
observing the commission of several traffic violations. These
violations included swerving into the emergency breakdown lane on
a public highway. See R.I. Gen. Laws Ann. § 31-15-16. The officer
then approached the stopped vehicle from the passenger side. The
window on that side was open.
The defendant was alone in his vehicle, and Officer Bemis
asked him for his license, registration, and proof of insurance.
While waiting for the defendant to gather his documents, Officer
Bemis noticed the smell of raw marijuana wafting from the vehicle.
He also saw raw marijuana crumbs on the front seat passenger-side
floorboard. And when the defendant handed over his documents,
Officer Bemis observed that his hand was trembling.
Queried about his erratic driving, the defendant
explained -- as Officer Bemis recalled it -- that "he had been
reaching around or messing around with stuff inside the vehicle."
The defendant also admitted that "he had smoked a marijuana joint
earlier in the day and was tired." Officer Bemis asked the
- 3 - defendant if he had a medical marijuana card, and the defendant
replied that he did not.1 Based on his observations, including
the sight and smell of marijuana and the defendant's nervous
behavior, Officer Bemis decided to conduct a search of the vehicle.
Officer Bemis also determined he could not safely conduct such a
search alone and thus broadcast a call for backup within a minute
or two of stopping the defendant's vehicle.
While waiting for backup, Officer Bemis elected to stay
by the passenger-side door of the defendant's vehicle for two
reasons: first, for his own safety, and second, because he did not
want to lose sight of the defendant. During this interlude, the
defendant began to smoke cigarettes one after the other in rapid
succession.
Officer Bemis recognized that the defendant exhibited an
instance of a specific nervous behavior known as "target glancing":
He saw the defendant repeatedly stare at a particular area (his
waistband). Premised on his training and experience, Officer Bemis
1 As a result of recent amendments, Rhode Island law provides certain protections for the medical use of marijuana. For instance, a "qualifying patient cardholder who has in his or her possession a registry identification card shall not be subject to arrest . . . solely for the medical use of medical marijuana; provided that the qualifying patient cardholder possesses an amount of medical marijuana that does not exceed . . . [2.5 ounces] of dried medical marijuana, or its equivalent amount . . . ." R.I. Gen. Laws Ann. § 21-28.6-4(a). Officer Bemis testified that he would have proceeded differently had the defendant produced a medical marijuana card.
- 4 - was aware that individuals usually target glance toward areas
containing contraband or weapons.
This target glancing took on added significance when the
defendant repeatedly reached for his waistband. Specifically -- in
Officer Bemis's words -- the defendant "started aggressively
making motions towards his waistband." Then, using his right hand,
the defendant began "fidgeting with his waistline" as if "trying
to tuck something or move something in his waistband." The
defendant reached to his waistband so many times that Officer Bemis
had to order him to stop.
In response to the officer's directive, the defendant's
body language became agitated. He then withdrew a bag of raw
marijuana from inside his jacket, tossed it on the passenger seat,
and told Officer Bemis something to the effect of, "Now you don't
need to search my car, here you go."
Officer Bemis testified that he was so concerned with
the way in which the defendant had been reaching toward his
waistband that he thought that additional precautions were
necessary to ensure officer safety. So, once Officer Bemis's
backup (in the person of Officer Stone) arrived at the scene some
four minutes later, Officer Bemis ordered the defendant to put his
hands on his head before removing him from his vehicle.
Officer Stone approached the driver's side of the
stopped vehicle. The defendant left his vehicle on command and
- 5 - without incident. Officer Stone then escorted him to the rear of
the vehicle where Officer Bemis met them. When the defendant made
yet another move toward his waistband, Officer Bemis directed him
to put his hands on the back of the vehicle. The defendant
complied, and Officer Bemis proceeded to pat him down. This pat-
down revealed a firearm in the defendant's waistband, and the
defendant was arrested on the spot.
II.
In March of 2022, a federal grand jury sitting in the
District of Rhode Island returned an indictment charging the
defendant with possession of a firearm after previously being
convicted of a felony. See 18 U.S.C. § 922(g)(1). The defendant
moved to suppress the firearm and all statements made during both
the stop and the pat-down. The government opposed the motion, and
the district court held an evidentiary hearing. Only one
witness -- Officer Bemis -- testified at the hearing. In the end,
the district court granted the defendant's motion to suppress.
The court relied on two grounds. First, the court found
that Officer Bemis unduly prolonged the traffic stop. Although
Officer Bemis's initial questioning was consistent with a stop for
the defendant's erratic driving, "nothing in those two minutes
gave reason to believe [that the defendant] was committing another
crime." United States v. Pavao, No. 22-00034, 2023 WL 3934555, at
*3 (D.R.I. June 9, 2023). Instead, the defendant's admission that
- 6 - he had smoked marijuana earlier in the day explained both the odor
of marijuana and the crumbs on the floor, such that there was
nothing to indicate that he possessed any marijuana exceeding the
one ounce that escalates a civil violation to a criminal offense
under Rhode Island law. Id. Even though the court acknowledged
that First Circuit precedent held that the odor of burnt marijuana
alone justified the search of a vehicle, the district court noted
that the critical case -- United States v. Staula, 80 F.3d 596,
602–03 (1st Cir. 1996) -- had been decided before marijuana was
decriminalized in Rhode Island. See Pavao, 2023 WL 3934555, at
*3. Thus, the district court reasoned, Staula's holding was not
controlling and -- in the present state of the law -- the smell of
burnt marijuana did not indicate that an unlawful amount of
marijuana was in the car. See id. Consequently, the odor of
marijuana alone did not give rise to reasonable suspicion of
criminal activity. See id. Nor did the district court regard the
defendant's apparent nervousness as contributing in any material
way to the reasonable suspicion calculus. Id. at *4. And the
defendant's fidgeting with his waistband did not bridge this gap
because the defendant had touched his waistband only once Officer
Bemis called for backup. See id.
Second, the district court found that even if the
prolonged detention was lawful, the subsequent pat-down was not.
See id. The court found that no circumstances prior to the frisk
- 7 - raised a sufficient degree of suspicion that the defendant was
armed: The defendant did not exhibit aggressive or threatening
speech or behavior and the defendant's repeated touching of his
waistband was not indicative of a person with a weapon. See id.
at *4–5. Nor did the defendant's target glancing move the needle,
as it occurred only "at one point." Id.
In the end, the district court determined that Officer
Bemis's concerns were not supported by specific behavior that would
have led a reasonable officer to believe that the defendant was
armed. See id. at *4–5. Accordingly, the court granted the
defendant's motion to suppress.
The government lost little time in moving for
reconsideration of the district court's suppression ruling. The
government argued, inter alia, that the search was supported by
reasonable suspicion because possession of less than one ounce of
marijuana was a civil violation under Rhode Island law and
marijuana itself was contraband. The government reinforced this
argument by pointing out that, regardless of Rhode Island's posture
toward the decriminalization of marijuana, under First Circuit
precedent, the odor or presence of marijuana allowed Officer Bemis
to search the vehicle because marijuana possession remained a
federal crime. See United States v. Bizier, 111 F.3d 214, 219 n.3
(1st Cir. 1997) (citing 21 U.S.C. § 844).
- 8 - The district court denied the government's motion to
reconsider. In so doing, it noted that the government did not
cite Bizier earlier. In its view, a motion to reconsider was not
the government's chance to introduce an authority that it could
have cited originally.
The government now appeals. See 28 U.S.C. § 1292. It
challenges both the granting of the defendant's motion to suppress
and the denial of the government's motion for reconsideration.
III.
A.
In reviewing challenges to orders granting or denying
suppression, we test the district court's factual findings for
clear error. See United States v. Sowers, 136 F.3d 24, 26 (1st
Cir. 1998). In contrast, "we review de novo the district court's
conclusions of law, including its application of the law to the
facts, its . . . reasonable suspicion determinations, and the
district court's ultimate legal decision to grant or deny the
motion to suppress." United States v. Camacho, 661 F.3d 718, 724
(1st Cir. 2011).
Because a traffic stop typically embodies a detention of
both a vehicle and its driver, it is a seizure within the purview
of the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648,
653 (1979); United States v. Chhien, 266 F.3d 1, 5 (1st Cir. 2011).
As a result, it is "subject to the constitutional imperative that
- 9 - it not be 'unreasonable' under the circumstances." Whren v. United
States, 517 U.S. 806, 810 (1996). "[T]he decision to stop an
automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred." Id. And while an
officer may prolong a lawful stop to conduct certain checks,
including an examination of both the driver's and vehicle's
documents, he may not prolong it beyond the time reasonably
required to complete the mission of the stop unless he has "the
reasonable suspicion ordinarily demanded to justify detaining an
individual." Rodriguez v. United States, 575 U.S. 348, 354–55
(2015). In other words, the prolonging of a stop "must be
supported by a reasonable and articulable suspicion of criminal
activity." Chhien, 266 F.3d at 6.
Reasonable suspicion is a concept, not a constant, and
defies exact definition. See id. It "requires more than a mere
hunch but less than probable cause." United States v. Ruidíaz,
529 F.3d 25, 29 (1st Cir. 2008). Whether reasonable suspicion
exists is determined on a case-by-case basis, considering all of
the attendant circumstances in each individual case. See Florida
v. Royer, 460 U.S. 491, 500 (1983); Chhien, 266 F.3d at 6. During
the course of this inquiry, we weigh "the nature and quality of
the intrusion on personal security against the importance of the
governmental interests alleged to justify the intrusion." Sowers,
- 10 - 136 F.3d at 27 (quoting United States v. Hensley, 469 U.S. 221,
228 (1985)).
In the context of a traffic stop, we "ask whether the
officer's actions were justified at their inception, and if so,
whether the officer’s subsequent actions were fairly responsive to
the emerging tableau -- the circumstances originally warranting
the stop, informed by what occurred, and what the officer learned,
as the stop progressed." Chhien, 266 F.3d at 6; see Sowers, 136
F.3d at 27. Faithful to this approach, we have held that
reasonable suspicion may develop over the course of a traffic stop.
See United States v. Ramdihall, 859 F.3d 80, 90 (1st Cir. 2017).
The defendant does not gainsay that Officer Bemis's
initial traffic stop -- arising out of the defendant's erratic
driving -- was lawful. Consequently, our first order of business
is to address whether the totality of the circumstances prior to
Officer Bemis's decision to call for backup justifies his suspicion
that the defendant engaged in some criminal activity. See United
States v. Woodrum, 202 F.3d 1, 6–7 (1st Cir. 2000). If so, Officer
Bemis acted lawfully when he prolonged the traffic stop while he
called for backup and awaited the arrival of a fellow officer.
The government argues that the sight and smell of
marijuana prior to the call for backup provided reasonable
suspicion for a search and arrest under Staula and Bizier. See 80
F.3d at 602–03; 111 F.3d at 219, 219 n.3. As the government
- 11 - explains, Bizier held that evidence of marijuana in a lawfully
stopped vehicle provided probable cause to arrest the occupants of
the vehicle -- even in a state (like Maine) that had decriminalized
marijuana. 111 F.3d at 219. After all, as the government had
also argued before the district court on its opposition to the
motion to suppress, possession of marijuana in any detectable
quantity remains a crime under federal law. See 21 U.S.C. § 844.
It follows -- the government exhorts -- that evidence of marijuana
independently supports an arrest, regardless of a state's posture
toward the criminality of marijuana possession. See Bizier, 111
F.3d at 219 n.3. And in response to the district court's refusal
to consider Bizier at the motion-for-reconsideration stage, the
government notes that its proffer of that decision was not based
on either a new argument or new evidence; rather, the government
had consistently argued that the odor and presence of marijuana
alone provided a basis for a finding of reasonable suspicion,
regardless of state law. Finally, the government seeks to debunk
the notion that allowing a federal marijuana offense to undergird
a finding of probable cause may serve to circumvent state
decriminalization of marijuana because the relevant question is
whether Officer Bemis faced evidence that raised reasonable
suspicion of any criminal offense.
The defendant counters that cases like Staula that were
decided prior to Rhode Island's modification of the laws regarding
- 12 - marijuana no longer have force. In support, he cites state court
decisions in jurisdictions which -- like Rhode Island -- have
decriminalized possession of certain amounts of marijuana. See,
e.g., Commonwealth v. Rodriguez, 37 N.E.3d 611, 612 (Mass. 2015).
The defendant argues that because there is no basis for finding
that he possessed a quantity of marijuana that would be unlawful
under state law, the prolonged stop was unlawful.
The district court found that -- prior to extending the
traffic stop by calling for backup -- Officer Bemis detected both
the sight and smell of marijuana. He also observed the defendant's
hand tremble. And "[a]t about the same time" as he called for
backup, Officer Bemis saw the defendant "reach down to the
waistband of his pants as if to adjust his pants." Pavao, 2023 WL
3934555, at *1. These findings are not disputed. And where, as
here, the underlying facts supporting an officer's reasonable
suspicion are not in dispute, the question of whether those facts
add up to reasonable suspicion is a question of law, engendering
de novo review. See Holder v. Town of Sandown, 585 F.3d 500, 504
(1st Cir. 2009); cf. Wilkinson v. Garland, 601 U.S. 209, 211–22
(2024) (reasoning that application of legal standard to
established set of facts is reviewable as a question of law).
In resolving the suppression issue, the district court
acknowledged that Staula, 80 F.3d at 602–03, "indeed held that the
mere odor of burnt marijuana justifies" detaining a vehicle in
- 13 - order to search it. Pavao, 2023 WL 3934555, at *3. The court
then proceeded to note a changed circumstance: From 2013 forward,
the possession of one ounce or less of marijuana was a civil, not
criminal, infraction in Rhode Island. Id.; see R.I. Gen. Laws
Ann. § 21-28-4.01(c)(2)(iii).
It is at this point that we part company with the
district court's reasoning. The district court concluded that
Rhode Island's post-2013 treatment of marijuana possession placed
"the whole 'odor of marijuana' in a different light," and it
therefore chose to "chart a course deviant from [Staula]." Pavao,
2023 WL 3934555, at *3. We are not convinced. Possession of
marijuana in any amount remains a federal crime, see 21 U.S.C.
§ 844, just as it was when Bizier was decided. There, we
considered whether an officer's observations flowing from a valid
traffic stop in Maine -- a state, like Rhode Island, in which
possession of a small amount of marijuana was even then a civil,
not criminal, infraction -- provided sufficient probable cause for
an arrest.2 See 111 F.3d at 217–19, 219 n.3. The defendant argued
2 When it denied the government's motion to reconsider, the district court noted that the government had not previously cited Bizier and refused to take that decision into account. We disagree. While a party ordinarily may not advance a new argument for the first time in a motion for reconsideration when such argument could have been advanced at an earlier stage, see Caribbean Mgmt. Grp., Inc. v. Erikon LLC, 966 F.3d 35, 45 (1st Cir. 2020), the government had seasonably raised the "federal crime" argument in opposition to the motion to suppress. The only thing that was new was the government's specific citation to
- 14 - that because possession of marijuana was a civil, not criminal,
infraction in Maine, such possession could not furnish a basis for
arrest. See id. at 219 n.3. We rejected the defendant's argument,
reasoning that because possessing any quantity of marijuana
remained a federal crime, see id., "evidence of marijuana in a
[vehicle] . . . stopped for a motor vehicle violation [provides]
probable cause to arrest the occupants of the [vehicle] on a
possession charge," id. at 219.
So it is here. Although possession of less than an ounce
of marijuana is no longer a crime in Rhode Island, it is still "a
crime under federal law which independently supports an arrest."
Id.; see 21 U.S.C. § 844. It further follows, a fortiori, that
the sight and smell of marijuana furnished the basis for Officer
Bemis's reasonable suspicion that the defendant was committing a
federal marijuana-related crime. And because Officer Bemis
Bizier. A party may alert a court to relevant authorities whenever such authorities come to its attention, see Fed. R. App. P. 28(j), and a reviewing court is free to consider authorities regarding a properly preserved argument even if those authorities are proffered for the first time on appeal, see Alston v. Town of Brookline, 997 F.3d 23, 44 (1st Cir. 2021) (explaining that "[w]hether or not an issue is preserved . . . does not depend on what authorities the arguing party cites"); Metavente Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 773 n.20 (7th Cir. 2010) (holding that "[a] litigant may cite new authority on appeal"). It follows, we think, that a party is free to proffer new authorities relating to a previously raised argument on a motion for reconsideration. And because Bizier is directly on point with respect to the government's previously raised "federal crime" argument, we consider it.
- 15 - reasonably suspected that the defendant was committing such a
crime, he was justified in calling for backup to help search the
vehicle even though that course of action resulted in briefly
prolonging the stop.
The defendant contends that allowing local police
officers to enforce federal marijuana laws despite more lenient
state marijuana laws would implicate what is known as the silver
platter doctrine. See Elkins v. United States, 364 U.S. 206, 208,
223 (1960) (holding that "evidence obtained by state officers
during a search which, if conducted by federal officers, would
have violated the defendant's immunity from unreasonable searches
and seizures under the Fourth Amendment is inadmissible"). But
this argument presumes that the search by Officer Bemis would have
been illegal if conducted by federal officers, and, as we have
just explained, that is not the case, given that possession of
marijuana in any amount continues to be a federal crime. And the
defendant's plaint that allowing local police officers to enforce
federal marijuana laws would allow the officers to nullify state
legislatures' roles is not a relevant factor in our reasonable
suspicion inquiry.3
3 Nor for that matter does holding a person liable for a federal crime "nullify" a state's decision not to have a duplicate law.
- 16 - Because Officer Bemis had reasonable suspicion that
criminal activity was afoot, he acted lawfully in prolonging the
stop and calling for backup. See Chhien, 266 F.3d at 5–6.
B.
We turn next to the question of whether Officer Bemis's
frisk of the defendant withstands scrutiny. Whether a pat-down
search following a lawful traffic stop is reasonable is largely a
matter of officer safety. See Terry v. Ohio, 392 U.S. 1, 27
(1968). Typically, it depends upon whether, in light of all the
attendant circumstances, the officer is justified in suspecting
that the individual is armed and dangerous. See United States v.
Romain, 393 F.3d 63, 71 (1st Cir. 2004). "Once an officer has
formed a reasonable belief that a detained person may be armed and
dangerous, a pat-down for protective purposes is, without more,
deemed reasonably related in scope to the stop." Ruidíaz, 529
F.3d at 33.
Determining whether an officer's suspicions are
reasonable is "a 'fact-sensitive task' which looks at the totality
of the circumstances to determine whether there is a
particularized, objective basis to suspect someone is armed and
dangerous." United States v. Harrington, 56 F.4th 195, 203 (1st
Cir. 2022) (citation omitted). A suspect's behavior and the
context of the stop factor into the totality of the circumstances
that must be considered. See id. At the bottom line, the court
- 17 - must determine whether a reasonable officer could point to specific
facts which, together with rational inferences drawn therefrom,
warranted a pat-down. See id. at 204.
The district court found Officer Bemis truthful and,
thus, considered the defendant's behavior on the basis of the facts
as Officer Bemis presented them. The court supportably found that
the defendant did not engage in any aggressive or threatening
speech and was in general compliant and cooperative. See Pavao,
2023 WL 3934555, at *5. The court also found, however, that the
defendant touched his waistband several times prior to the search
and target glanced at his waistband at one point. Id. On these
uncontradicted facts, the court concluded that the defendant's
actions, taken in their entirety, would not have led a reasonable
officer to believe that he was armed. See id. at *4–6. Because
there is no dispute as to the facts underlying Officer Bemis's
decision to conduct the pat-down frisk, the question of whether
those facts add up to reasonable suspicion is a question of law,
which we review de novo. See Holder, 585 F.3d at 504. After
careful consideration, we conclude -- contrary to the district
court -- that the sum total of these facts comprises reasonable
suspicion sufficient to justify the pat-down frisk.
In reaching this conclusion, we find that the district
court afforded insufficient weight to the defendant's unusual
behavior throughout the stop. Of foremost concern were the
- 18 - defendant's actions regarding his waistband: He reached toward
and fidgeted with his waistband -- as if trying to hide or to move
an object there -- so many times that Officer Bemis had to instruct
him to refrain from doing so. See Harrington, 56 F.4th at 204
(finding that suspect's reaching for something in vehicle and
reaching toward his pocket were among "most notabl[e]" factors in
supporting reasonable suspicion that suspect was armed and
dangerous). Although we have previously held that a defendant's
reaching movement towards a vehicle's center console upon being
approached by police officers did not support a finding of
reasonable suspicion, United States v. McKoy, 428 F.3d 38, 40–41
(1st Cir. 2005), here Pavao's movements were not "consistent with
reaching for a driver's license or registration" nor with any other
"perfectly lawful action that is to be expected when one is pulled
over by the police," id. at 40. Nor was there any indication in
McKoy that the defendant refused an officer's orders to stop his
reaching movements, id. at 40–41, whereas here, Pavao continued
reaching despite such orders. See also Harrington, 56 F.4th at
204 (discussing defendant's repeated "noncompliance" with officer
instructions as a key fact in the reasonable suspicion analysis).
Thus, unlike the district court, we do not think that the fact
that the defendant refrained from putting his hand inside his
waistband meaningfully detracted from the significance of his
ongoing motions at and near his waistband.
- 19 - Nor do we readily dismiss the target glancing. The
district court attempted to minimize this phenomenon because it
occurred only once. But Officer Bemis's training and experience
are worthy of deference. See United States v. Brown, 621 F.3d 48,
56 (1st Cir. 2010). Even the single instance of target
glancing -- which encompassed the defendant staring at his
waistband multiple times -- reasonably indicated to Officer
Bemis's trained eye that the object that the defendant seemed to
be trying to hide or move might very well have been a weapon. See
Terry, 392 U.S. at 28 (reasoning that issue is not whether officer
is absolutely certain individual is armed, only whether reasonably
prudent person would be warranted in believing safety was in
danger). In the larger context of the stop, the defendant's target
glancing weighs in favor of a finding of reasonable suspicion.
See United States v. Arvizu, 534 U.S. 266, 273 (2002). Thus, we
conclude that the defendant's ongoing, unusual, and concerning
behavior regarding his waistband would have led a reasonable
officer to suspect that the defendant was armed and dangerous.
See United States v. Soares, 521 F.3d 117, 120 (1st Cir. 2008)
(holding that unordinary, furtive movements considered in finding
totality of circumstances created reasonable suspicion); see also
United States v. Moorefield, 111 F.3d 10, 13–14 (3d Cir. 1997)
(reversing district court's order to suppress, finding pat-down
justified in part by suspect's furtive hand movements which officer
- 20 - believed were consistent with attempts to conceal something,
despite district court's finding they were not suspicious).
We add, moreover, that the defendant's frustrated
demeanor lent credence to the suspicion that the defendant
presented a threat to officer safety. We believe that the district
court committed clear error when it found that the defendant was
not agitated during the stop. To the contrary, Officer Bemis
(whose testimony the district court found credible) stated
unequivocally that the defendant "became agitated" when Officer
Bemis advised him to stop reaching for his waistband. Further,
considering the defendant's indications that he may have been
armed, his tossing a bag of marijuana toward Officer Bemis in an
apparent attempt to dissuade Office Bemis from a more invasive
search further supports a finding of reasonable suspicion.
Taking into account the totality of the defendant's
evolving behavior throughout the stop -- including his trembling
hand, agitated demeanor, incessant motions toward his waistband
without innocent explanation, failure to obey officer
instructions, target glancing, and flaunting of marijuana -- we
think that the defendant's conduct provided a reasonable officer
with an objective basis to suspect that the defendant posed a
threat to officer safety. See Soares, 521 F.3d at 121 (holding
that increased agitation, erratic behavior, and reaching toward
suspicious area of vehicle made officer nervous and created
- 21 - reasonable suspicion that suspect posed threat). Consequently,
Officer Bemis's pat-down search was lawful.
IV.
We need go no further.4 For the reasons elucidated
above, the district court's suppression order is reversed and the
case is remanded for further proceedings consistent with this
opinion.
Reversed and Remanded.
4 In view of our reversal of the district court's grant of the defendant's motion to suppress, we do not reach the government's appeal of the denial of its motion for reconsideration. The ruling on that motion has become moot. See Patriot Cinemas, Inc. v. Gen. Cinemas Corp., 834 F.2d 208, 218 (1st Cir. 1987).
- 22 -