United States v. Garrison

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 25, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-6128
v. (W .D. of Oklahoma)
JA RED TA Y LO R G A RR ISO N , (D.C. No. CR-05-115-01-T)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Jared Garrison pleaded guilty in the United States District Court for the
W estern District of Oklahoma to one count of being a felon in possession of a
firearm and ammunition, see 18 U.S.C. § 922(g)(1). The district court sentenced
him to 180 months’ imprisonment. He appeals the court’s denial of his motion to
suppress the gun found on his person during a frisk by a police officer,
contending that the officer could not have reasonably believed that he was armed
*
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
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and dangerous. W e disagree and affirm. Before the frisk he had told the officer
that he had just been released from prison and was carrying a gun.
Before dawn on April 5, 2005, Officer Philip Paz noticed M r. Garrison
leaning into the driver’s side of a pickup truck parked in the lot of a hotel.
M r. Garrison had a flashlight and an armful of tools. Paz had recovered over 20
stolen vehicles from the parking lot and had made at least 50 drug-related arrests
there. He suspected that a car burglary was in progress and approached
M r. G arrison. At the outset of the encounter, M r. Garrison’s hands, voice, and
body were shaking. W hen Paz asked him why he was so nervous, M r. Garrison
replied that he had just been released from prison. After a second officer arrived,
Paz escorted M r. G arrison to his patrol car. Before conducting a frisk, Paz asked
him whether he “had anything on his person that [Paz] should know about.”
Aplee. Supp. App. at 21. M r. Garrison replied “I have a gun in my waistband.”
Id. Paz retrieved a .380 caliber handgun from the waistband. W hen he checked
the vehicle registration, he determined that the truck belonged to M r. Garrison.
But Paz took M r. Garrison to the police station where he verified that
M r. Garrison was a convicted felon and arrested him for possessing a firearm.
W hen reviewing a district court’s denial of a motion to suppress evidence,
“we view the evidence in the light most favorable to the government, accept the
district court’s findings of fact unless clearly erroneous, and review de novo the
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ultimate determination of reasonableness under the Fourth Amendment.” United
States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004).
M r. G arrison does not challenge his detention but only the pat-down search.
An officer may conduct a protective search of a suspect when he reasonably
believes that the suspect might be armed and dangerous. See United States v.
M addox, 388 F.3d 1356, 1361 (10th Cir. 2004). Such a belief was perfectly
reasonable in this case.
The judgment below is A FFIRMED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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