On December 20, 2022, the Tenth Circuit Court of Appeals decided the United States v. Samilton[i], which serves as an excellent review of the law related to the initiation and extended duration of Terry stops.  The relevant facts of Samilton, taken directly from the case, are as follows:


A. Factual History

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 “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 officers 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.

1. 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. 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.

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, individuals who are authorized to carry firearms will freely disclose the presence of a firearm, but individuals who carry firearms illegally often refuse to 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.

2. 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.

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.

3. 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.[ii]

Samilton was indicted on federal weapons charges.  He filed a motion to suppress and argued that Sergeant Garrett unreasonably extended the Terry stop after the first search and frisk did not uncover a weapon.  The district court denied the motion, and Samilton was convicted.  He then appealed the denial of his motion to suppress to the Tenth Circuit Court of Appeals.

For the purpose of the appeal, the court of appeals divided the encounter with Samilton into three phases which were as follows: (1) the initial search which encompassed the sergeant’s initial encounter and first search of the vehicle and surrounding area; (2) the extended search which encompassed an additional frisk of Samilton and searches of the vehicle and the surrounding area; and (3) the final search, which encompassed the sergeant’s communication with dispatch and subsequent searches which located the gun.

On appeal, Samilton agreed that the officers had reasonable suspicion to initially detain him and conduct the initial frisk, search of the vehicle and search of the surrounding area.  Rather, Samilton argued on appeal that after the initial searches did not reveal a gun, the reasonable suspicion evaporated and the officers should have released him with no further investigation, detention or searches.

The court of appeals first examined the legal principles relevant to Samilton’s case.  First, the court of appeals noted that

[I]nvestigative 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). Thus, although “a defendant [passenger] may lack the requisite possessory or ownership interest in a vehicle to directly challenge a search of that vehicle, the defendant [passenger] 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.”[iii]

This principle was important because Samilton was a passenger in the vehicle.

Second, the court discussed the principle that a Terry stop must be (1) justified at it’s inception and (2) the officers actions during the stop must be reasonably related in scope to the circumstances that justified the stop.[iv]  A stop is justified at its inception when the officer has reasonable suspicion to believe that the suspect may be involved in criminal activity.  However, the court noted that

A detention becomes 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).[v]

Thus, if the officer unreasonably prolongs an initially lawful Terry stop, the continued detention would violate the Fourth Amendment.  On appeal, this is what Samilton argued.

Third, the court of appeals noted that, when an officer has sufficient reasonable suspicion to extend a Terry stop, the court must still examine whether the officer diligently pursued the stop to confirm or dispel his suspicions.  The court stated

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, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985)).[vi]

Fourth, the court of appeals discussed the principle that officers may stop and briefly detain a suspect when the officer has “reasonable suspicion supported by articulable facts that criminal activity may be afoot.”[vii]  The reasonable suspicion must be more than “an inchoate and unparticularized suspicion or hunch.”[viii]  The court, discussing reasonable suspicion, then stated

[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).[ix]

Fifth, the court of appeals recognized that both furtive movements and vague or inconsistent answers to questions are factors to consider in evaluating whether reasonable suspicion was present.  Specifically, the court stated

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 [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)[x]

The court of appeals then examined the facts of the case relevant to the issue before the court.  First, the court noted that a 911 caller reported that she saw a male passenger in a sedan brandishing a firearm and knocking on hotel room doors.  Second, the area around the Rodeway Inn was known for criminal activity involving firearms.  Third, when the officer approached, he observed Samilton make furtive movements (reaching under the front seat) as if he was attempting to hide something, such as a firearm and this behavior was not consistent with a person that is in lawful possession of a firearm.  Fourth, as the officer approached, he heard an object being thrown from the car.  Fifth, when questioned about the firearm by the officer, Samilton gave evasive answers.  Particularly when asked if a firearm was in the vehicle, Samilton replied, “you checked me, I don’t have no gun.”  Body camera video confirmed that Samilton appeared nervous as the officer questioned him.  The court stated that these facts provided sufficient reasonable suspicion for the officer to extend the length of the Terry stop.

The court of appeals then set out to determine if the officer unreasonably extended the stop by failing to act diligently in attempting to confirm or dispel his suspicions.  The court stated

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)[xi]

Thus, in summary, the court of appeals held that (1) the officer had reasonable suspicion to extend the Terry stop beyond the initial encounter and search, and (2) the officer acted reasonably and conducted a diligent investigation to confirm or dispel his suspicion.  As such, the officer did not violate the Fourth Amendment and the motion to suppress was properly denied, as the evidence was admissible.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 21-6149, No. 21-6150 (10th Cir.  Decided December 20, 2022)

[ii] Id. at 1-3

[iii] Id. at 8-9 (emphasis added)

[iv] Id. at 9

[v] Id. (emphasis added)

[vi] Id. at 9-10 (emphasis added)

[vii] Id. at 10

[viii] Id.

[ix] Id. at 10-11 (emphasis added)

[x] Id. at 11 (emphasis added)

[xi] Id. at 14-15

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