Appellate Case: 21-6149 Document: 010110786445 Date Filed: 12/20/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 20, 2022
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 21-6149 (D.C. No. 5:13-CR-00231-F-1) DAVID ASHARD SAMILTON, (W.D. Okla.)
Defendant - Appellant.
–––––––––––––––––––––––––––––––––––
Plaintiff - Appellee, No. 21-6150 v. (D.C. No. 5:20-CR-00284-F-1) (W.D. Okla.) DAVID ASHARD SAMILTON,
Defendant - Appellant. _________________________________
Submitted on the briefs:*
Susan M. Otto, Federal Public Defender and Laura K. Deskin, Research & Writing Specialist, Oklahoma City, Oklahoma, on the brief for Defendant – Appellant.
Robert J. Troester, U.S. Attorney and David R. Nichols, Jr, Assistant U.S. Attorney, Oklahoma City, Oklahoma, on brief for Plaintiff – Appellee.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. Appellate Case: 21-6149 Document: 010110786445 Date Filed: 12/20/2022 Page: 2
_________________________________
Before MATHESON, CARSON, and ROSSMAN, Circuit Judges.
MATHESON, Circuit Judge. _________________________________
Patrol Sergeant Mark Garrett seized a firearm from underneath David
Samilton’s passenger seat during a vehicle stop. Based on the firearm, (1) a jury
convicted Mr. Samilton of being a felon in possession, and (2) the district court
revoked his supervised release in an unrelated case. On appeal in both cases, Mr.
Samilton challenges the district court’s denial of his motion to suppress the firearm.1
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual History2
On September 13, 2020, the Oklahoma City Police Department received a
911 call from a Rodeway Inn hotel clerk. The clerk said a four-door, dark-colored
car had been in the parking lot for several hours, and a Black female driver and a
white, bearded male passenger were sitting inside. The clerk also said the man had a
1 Mr. Samilton and the Government each filed identical briefs in both cases. See Case Nos. 21-6149; 21-6150. Because the record is more comprehensive in Case No. 21-6150, we cite to the record in that case. 2 Because Mr. Samilton appeals the denial of his motion to suppress, we state the facts in the light most favorable to the district court’s decision. See United States v. Cortez, 965 F.3d 827, 833 (10th Cir. 2020).
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“pistol[] in his hand and was waving it around inside the car,” ROA, Vol. III at 10,
and had been knocking on hotel room doors. The clerk did not believe the man was a
hotel guest.
Sergeant Garrett and several other officers3 were dispatched to the scene. At
the suppression hearing, Sergeant Garrett said the Rodeway Inn was located in a high
crime area. When he worked there, he sometimes encountered three to five armed
robberies per week. The 911 caller’s report about the male passenger’s open display
of a firearm “[wa]s very uncommon” and troubling to him. Id. at 13.
Initial Search
When Sergeant Garrett arrived, he found a black sedan in the hotel parking lot
with a Black female driver and a bearded male passenger.4 He activated his body
camera and approached the sedan. Bodycam footage at 00:08-00:33. While walking
toward the car, he observed the passenger make “furtive movements . . . towards the
floorboard area towards his knees, multiple hand movements [sic],” which he
interpreted as “trying to hide a firearm.” ROA, Vol. III at 22. He also heard a noise
that sounded “like a firearm or a magazine that goes into a firearm had been thrown
from the vehicle and hit the pavement.” Id. at 19.
3 In its findings of fact, the district court observed that although Sergeant Garrett “was not the only officer involved, . . . he was certainly, by any standard, the principal officer involved.” ROA, Vol. I at 61. Sergeant Garrett conducted the search that found the gun. 4 The only discrepancy from the 911 caller’s report was that Mr. Samilton is Black.
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Sergeant Garrett opened the passenger door and asked what had been tossed
out the window. Bodycam footage at 00:42-00:44. The passenger denied tossing
anything, id. at 00:44-00:46, and showed Sergeant Garrett a hotel room key and his
driver’s license, id. at 01:26-01:29, which identified him as David Samilton. When
Sergeant Garrett asked whether he had any guns, Mr. Samilton said no. Id. at
01:29-01:31. After receiving consent, Sergeant Garrett frisked Mr. Samilton but did
not find a weapon. Id. at 01:33-01:54. Sergeant Garrett then walked Mr. Samilton to
his police vehicle and directed him to sit in the back seat. Id. at 02:08-02:40.
In the police vehicle, Sergeant Garrett asked Mr. Samilton whether there was a
gun in the sedan. Id. at 02:50-51. Mr. Samilton gave evasive responses—he said
“you checked me” and “I don’t have no gun,” but avoided stating directly whether
there was a gun in the vehicle. Bodycam footage at 02:52-03:05. Finally, Sergeant
Garrett said: “[L]isten to the question I’m asking. Is there a gun inside that car?”
Id. at 03:08-03:13. Mr. Samilton responded, “no, not to my knowledge.” Id. at
03:12-03:14.
Sergeant Garrett testified that this interaction made him suspicious. In his
experience,5 individuals who are authorized to carry firearms will freely disclose the
presence of a firearm, but individuals who carry firearms illegally often refuse to
5 Sergeant Garrett testified that he had almost a decade of law enforcement experience.
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admit the presence of a firearm and “separate[] themselves from wherever the gun
is.” ROA, Vol. III at 21-22.
After leaving Mr. Samilton in the police vehicle, Sergeant Garrett returned to
the sedan and asked the female driver whether there was a gun in the car. Bodycam
footage at 03:32-03:33. After prevaricating, she said there was a gun “on the right
side of the door,” referring to the passenger side of the car. Bodycam footage at
04:13-04:17. Sergeant Garrett asked if he could look in the car, and the driver said,
“I don’t care.” Id. at 04:20-04:22. Sergeant Garrett then examined the area near the
passenger seat and promptly found a live 9-millimeter round on the floor. See ROA,
Vol. III at 26-27. For the next several minutes, Sergeant Garrett inspected the
passenger seat and the area outside the sedan. See bodycam footage at 04:22-05:55.
He found no gun.
Extended Search
Sergeant Garrett next walked back to the police vehicle and asked Mr.
Samilton where he tossed the gun. Id. at 06:03-06:06. Mr. Samilton again denied
disposing of a gun. Id. at 06:07-06:21. Sergeant Garrett continued inspecting the
area around the sedan and the interior of the car. Id. at 06:31-08:06.
About eight minutes into the stop, Sergeant Garrett returned to the police
vehicle, placed Mr. Samilton in handcuffs, and frisked him again, but did not find a
firearm. Id. at 08:16-10:04. More searching ensued as Sergeant Garrett once again
examined the interior of the sedan and the surrounding area. Id. at 10:50-12:30.
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After again finding no firearm, Sergeant Garrett began to enter Mr. Samilton’s
and his female companion’s information into a police database. Id. at 12:43. He also
asked Mr. Samilton whether he was a felon, and Mr. Samilton confirmed that he was.
Id. at 12:49-52.
Final Search
After he finished entering Mr. Samilton’s information, about nineteen minutes
into the stop, Sergeant Garrett resumed searching for the firearm. Id. at 18:59.
Shortly thereafter, Sergeant Garrett found a firearm that had been concealed under
the passenger seat of the sedan. Id. at 19:34-19:55.
B. Procedural History
A grand jury indicted Mr. Samilton for being a felon in possession of a
firearm. He filed a motion to suppress the firearm, arguing that Sergeant Garrett had
unreasonably prolonged the traffic stop in violation of the Fourth Amendment.6
After holding a hearing, the district court concluded that (1) the traffic stop was
justified at its inception and (2) reasonable suspicion supported Sergeant Garrett’s
decision to extend the stop. The court also found no factual nexus between Mr.
Samilton’s detention and the seizure of the firearm. It explained that the sedan
6 Mr. Samilton also moved to suppress the statements he made to Sergeant Garrett before Sergeant Garrett issued any Miranda warnings, and the district court suppressed those statements. See Aplt. Br. at 16-17. But the fruits of un-Mirandized statements are not per se inadmissible, see United States v. Patane, 542 U.S. 630, 639 (2014), and Mr. Samilton does not raise a Miranda issue on appeal. Aplt. Br. at 16-17.
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belonged to the female driver, who consented to the search, so the discovery of the
firearm did not result from any alleged violation of Mr. Samilton’s rights. The court
thus denied Mr. Samilton’s motion to suppress the firearm.
The case proceeded to trial, and the jury found Mr. Samilton guilty. The
district court sentenced Mr. Samilton to 120 months in prison. The court also
revoked his supervised release term on an unrelated offense and imposed an
additional 14-month sentence.
II. DISCUSSION
The timeline of Sergeant Garrett’s interactions with Mr. Samilton can be
divided into three distinct periods, as measured by the bodycam timestamps:
1. Initial search, 00:00 to 05:55—Sergeant Garrett’s first encounter with Mr. Samilton and initial search of the vehicle and surrounding area.
2. Extended search, 05:55 to 12:52—Sergeant Garrett’s repeated searches of Mr. Samilton’s person, the vehicle, and the surrounding area until he learned Mr. Samilton was a felon.
3. Final search, 12:52-19:49—Sergeant Garrett’s communications with dispatch and further searches until he found the firearm.
Mr. Samilton does not dispute that reasonable suspicion supported the initial
search and the final search. Aplt. Br. at 15-16. He thus focuses on the extended
search period, the approximately seven-minute window between (1) Sergeant
Garrett’s concluding his initial search of the sedan and surrounding area, and (2) his
learning that Mr. Samilton was a felon. Id.; bodycam footage at 05:55-12:52.
Mr. Samilton argues that after Sergeant Garrett’s initial search failed to
produce a firearm, “any reasonable suspicion that criminal activity was afoot had
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dissipated.” Aplt. Br. at 13.7 “Once officers found no firearm after a thorough
search,” Mr. Samilton contends, “he should have been permitted to go on his way.”
Id. at 17. He argues the district court thereby erred in denying his motion to suppress
the firearm. Id. at 14.
A. Standard of Review
“In reviewing the denial of a motion to suppress, we accept the district court’s
factual findings unless clearly erroneous . . . .” United States v. Hammond, 890 F.3d
901, 905 (10th Cir. 2018). In conducting our review, we “view the evidence in the
light most favorable to the determination of the district court.” United States v.
Johnson, 43 F.4th 1100, 1107 (10th Cir. 2022) (quotations omitted).
B. Legal Background
Investigative Detentions
The Fourth Amendment protects individuals from unreasonable seizures.
U.S. Const. amend. IV.8 Evidence collected as part of an unconstitutional seizure is
thus generally inadmissible. See Terry v. Ohio, 392 U.S. 1, 29 (1968).
“This court has recognized three types of police-citizen encounters:
(1) consensual encounters which do not implicate the Fourth Amendment;
7 Because Mr. Samilton’s brief does not contain internal pagination, we count page numbers from the beginning of the document. 8 Through its incorporation in the Fourteenth Amendment, the Fourth Amendment applies to searches and seizures conducted by state officers. See Mapp v. Ohio, 367 U.S. 643, 655 (1961).
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(2) investigative detentions which are Fourth Amendment seizures of limited scope
and duration and must be supported by a reasonable suspicion of criminal activity;
and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only
if supported by probable cause.” Hammond, 890 F.3d at 904 (quotations omitted).
The second category—investigative detentions, commonly known as Terry
stops—includes detention of individuals in vehicles. To be constitutional, the
detention must be reasonable as to both the driver and any passengers. United States
v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000).9 Thus, although “a
defendant may lack the requisite possessory or ownership interest in a vehicle to
directly challenge a search of that vehicle, the defendant may nonetheless contest the
lawfulness of his own detention and seek to suppress evidence found in the vehicle as
the fruit of the illegal detention.” Id.
A Terry stop is constitutional if “the stop was justified at its inception” and
“the officer’s actions during the detention were reasonably related in scope to the
circumstances which justified the interference in the first place.” Vasquez v. Lewis,
834 F.3d 1132, 1136 (10th Cir. 2016) (quotations omitted). A detention becomes
9 Although the detention of the individuals in this case was not a routine highway traffic stop based on a traffic violation, both parties cite cases discussing Terry traffic stops in their briefs. E.g., Aplt. Br. at 14-15; Aplee. Br. at 16-17. We have routinely applied Terry and its progeny to situations where suspects were detained in non-moving vehicles in parking lots. In United States v. Mosley, for example, police received a report that two individuals had a gun in a vehicle in a parking lot. 743 F.3d 1317, 1321 (10th Cir. 2014). Officers approached the car and detained the passengers. Id. at 1321-22. We assessed the reasonableness of the detention and subsequent search under Terry stop principles. Id. at 1328.
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unconstitutional if it is unreasonably prolonged. Valid Terry stops “must be
temporary, lasting no longer than necessary to effectuate the purpose of the stop.”
Id. If an officer “observes specific and articulable facts supporting a reasonable
suspicion that [an occupant of the vehicle] is engaged in illegal activity,” the officer
may extend the stop beyond its initial scope. United States v. Cash, 733 F.3d 1264,
1274 (10th Cir. 2013); see also United States v. Lopez-Martinez, 25 F.3d 1481, 1487
(10th Cir. 1994) (suspicious behavior by a vehicle’s passenger can give rise to
reasonable suspicion).
If we conclude that an officer had sufficient reasonable suspicion to extend a
Terry stop, we must then “examine whether the [officer] diligently pursued a means
of investigation that was likely to confirm or dispel [his] suspicions quickly, during
which time it was necessary to detain the defendant.” United States v. Goebel, 959
F.3d 1259, 1268 (10th Cir. 2020) (quoting United States v. Sharpe, 470 U.S. 675, 686
(1985)).
Reasonable Suspicion
The Fourth Amendment permits a police officer to “stop and briefly detain a
person for investigative purposes if the officer has a reasonable suspicion supported
by articulable facts that criminal activity ‘may be afoot.’” United States v. Sokolow,
490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. 1 at 30). Although reasonable
suspicion must be more than an “inchoate and unparticularized suspicion or hunch,”
Alabama v. White, 496 U.S. 325, 329 (1990) (quotations omitted), “it is not, and is
not meant to be, an onerous standard,” Shaw v. Schulte, 36 F.4th 1006, 1014
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(10th Cir. 2022) (quotations omitted). “[T]he level of suspicion required is
considerably less than proof by a preponderance of the evidence or that required for
probable cause.” United States v. Chavez, 660 F.3d 1215, 1221 (10th Cir. 2011)
(quotations and alterations omitted).
“Reasonable suspicion is an objective standard,” and we “inquire[ ], based on
the totality of circumstances, whether the facts available to the detaining officer, at
the time, warranted an officer of reasonable caution in believing the action taken was
appropriate.” Cash, 733 F.3d at 1273 (quotations omitted). The detaining officer
need only articulate “some minimal level of objective justification” for the detention.
Sokolow, 490 U.S. at 7 (quotations omitted). Even if it is more likely that an
individual is not involved in criminal activity, an officer still may have reasonable
suspicion to stop and detain the individual. See United States v. McHugh, 639 F.3d
1250, 1256 (10th Cir. 2011). “To satisfy the reasonable suspicion standard, an
officer need not rule out the possibility of innocent conduct, or even have evidence
suggesting a fair probability of criminal activity.” United States v. Pettit, 785 F.3d
1374, 1379 (10th Cir. 2015) (quotations omitted).
“Furtive movements, nervousness, and the fact that conduct occurs in an area
known for criminal activity are all appropriate factors to consider in determining
whether reasonable suspicion exists.” United States v. DeJear, 552 F.3d 1196, 1201
(10th Cir. 2009). So too are “vague, inconsistent or evasive answers” to an officer’s
logical questions. United States v. Simpson, 609 F.3d 1140, 1150 (10th Cir. 2010).
And an officer’s observation of a vehicle occupant “throwing an object out of the
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[vehicle’s] window” may also contribute to the totality of the circumstances giving
rise to reasonable suspicion. See United States v. Potter, 218 F. App’x 809, 814
(10th Cir. 2007) (unpublished) (cited for persuasive value under Fed. R. App. P.
32.1; 10th Cir. R. 32.1(A)).10
C. Analysis
Mr. Samilton asserts there was no reasonable suspicion that he was involved in
criminal activity after Sergeant Garrett’s initial search of the sedan and surrounding
area failed to produce a firearm. Aplt. Br. at 15-16. He argues Sergeant Garrett
unconstitutionally prolonged the Terry stop during the extended search between
05:55 and 12:52 on the bodycam footage. Id. We disagree and affirm.
Reasonable Suspicion Developed During the Initial Search to Extend the Stop - 00:00 to 05:55
When Sergeant Garrett first approached the sedan, he heard a noise that
sounded like a gun or magazine hitting the pavement. He also saw Mr. Samilton
10 Other circuits have held that someone throwing objects into or out of a vehicle can contribute to reasonable suspicion or probable cause. See United States v. Christian, 187 F.3d 663, 668 (D.C. Cir. 1999) (agreeing with the district court that reasonable suspicion exists when someone “throws something into a car” immediately upon seeing an officer in “an area notorious for drug selling and stolen property”); Riley v. City of Montgomery, 104 F.3d 1247, 1252 (11th Cir. 1997) (determining probable cause supported by, among other things, the car passenger “throwing things . . . out of the window of the car”); United States v. Allen, 675 F.2d 1373, 1383 (9th Cir. 1980) (“The reasonable suspicion to stop ripened into probable cause to search and arrest when the crew of [a ship] was observed throwing boxes of cargo overboard and when the [ship] failed to respond to further communications or to stop.”). Here, Officer Garrett claims he heard, rather than saw, Mr. Samilton throw something out the window, which we view as a relevant part of the totality of the circumstances.
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making furtive movements consistent with trying to hide something. From that
moment, Sergeant Garrett had reason to suspect that Mr. Samilton had hidden
something, either by stowing it within the sedan or discarding it outside.
See DeJear, 552 F.3d at 1201 (furtive movements contribute to reasonable
suspicion); Potter, 218 F. App’x at 814 (throwing an object out of a vehicle window
contributes to reasonable suspicion). Given the 911 caller’s report that the male
passenger had a gun, Sergeant Garrett also had reasonable suspicion that Mr.
Samilton had hidden a firearm.
Sergeant Garrett pursued this reasonable suspicion by frisking Mr. Samilton,
questioning the driver about whether there was a gun in the car, and asking her
permission to search the passenger side—actions which Mr. Samilton concedes were
part of the initial, valid Terry stop. See Aplt. Br. at 15. Sergeant Garrett then had
two additional reasons to believe there was a gun nearby: (1) the driver admitted
there was a gun on the passenger side of the car, and (2) Sergeant Garrett found a live
9-millimeter round on the floor near the passenger seat, where Mr. Samilton had been
sitting. Bodycam footage at 04:13-04:17; ROA, Vol. III at 26-27. These two facts
further supported Sergeant Garrett’s reasonable suspicion that Mr. Samilton had
possessed and hidden a gun—either in the car or in the surrounding area.
Sergeant Garrett also had a reasonable suspicion based on several factors that
Mr. Samilton’s possession of the firearm constituted criminal activity.
First, the 911 caller had reported behavior consistent with criminal activity—
the man from the sedan brandishing a gun and knocking on hotel room doors.
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Moreover, violent crimes, including armed robberies, frequently occurred in the area
surrounding the Rodeway Inn, reinforcing suspicions about criminal activity. See
DeJear, 552 F.3d at 1200-01.
Second, Mr. Samilton’s furtive actions suggesting he was trying to hide
contraband were inconsistent with the behavior of a person who is permitted to carry
a firearm.
Third, Mr. Samilton repeatedly gave evasive replies to Sergeant Garrett’s
questions about the firearm. For example, when Sergeant Garrett asked whether
there was a gun in the sedan, Mr. Samilton said “you checked me” and “I don’t have
no gun” rather than responding directly to the question. Bodycam footage at
02:52-03:05. Mr. Samilton’s apparent nervousness and “vague, inconsistent or
evasive answers” contributed to Sergeant Garrett’s reasonable suspicion. Simpson,
609 F.3d at 1150.
In sum, Sergeant Garrett “observe[d] specific and articulable facts supporting a
reasonable suspicion” that Mr. Samilton had engaged in criminal activity by
possessing the firearm, so he was entitled to extend the Terry stop beyond its initial
scope. Cash, 733 F.3d at 1273.
The Extended Search Was Reasonable - 05:55 to 12:52
But this does not end the inquiry. We must also determine whether Sergeant
Garrett unreasonably extended the Terry stop or failed to act diligently in the
approximately seven minutes between when he concluded his initial search and when
he learned that Mr. Samilton was a felon. See Goebel, 959 F.3d at 1268.
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We conclude that Sergeant Garrett acted diligently and did not unreasonably
extend the Terry stop. As discussed, he had reason to believe there was a firearm in
the sedan, in the area surrounding the sedan, or on Mr. Samilton’s person. Sergeant
Garrett checked these places multiple times. He inspected the interior of the sedan,
focusing on the passenger seat, bodycam footage at 07:38-8:07, 10:49-11:14; he
checked the area surrounding the sedan, looking where Mr. Samilton may have
thrown the weapon from the passenger side window, id. at 06:27-7:37, 11:14-12:32;
and he frisked Mr. Samilton to ensure the weapon was not on his person, id. at
09:43-10:05. That Sergeant Garrett’s efforts were unsuccessful during this time
period does not mean he was not diligent. He “accomplished a great deal in a
relatively short time.” Goebel, 959 F.3d at 1259 (a 17-minute detention was not
unreasonably prolonged because officers used that time to conduct a diligent search);
United States v. Mayville, 955 F.3d 825, 827 (10th Cir. 2020) (upholding a 19-minute
Terry stop because it “did not exceed the time reasonably required to execute the
tasks relevant to accomplishing the mission of the stop”).
* * * *
We conclude that (1) Sergeant Garrett’s decision to extend the Terry stop after
his initial search was based on a reasonable suspicion of criminal activity, and
(2) Sergeant Garrett undertook reasonable and diligent efforts to confirm his
suspicion. The extension of the Terry stop therefore did not violate Mr. Samilton’s
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Fourth Amendment rights.11 The firearm was properly admitted as evidence at trial
and also was a proper basis to revoke Mr. Samilton’s supervised release.
III. CONCLUSION
We affirm the district court’s denial of Mr. Samilton’s motion to suppress the
firearm.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge
11 In light of this conclusion, we need not determine whether the district court erred in its alternative holding that there was no factual nexus between Mr. Samilton’s detention and the discovery of the firearm.