The Fifth Circuit held that officers had reasonable suspicion to conduct a protective pat-down of a vehicle passenger after discovering that the driver possessed a concealed firearm and had been dishonest about it. The court concluded that the totality of the circumstances, including the driver’s weapon, the nighttime stop in a high-crime area, and the officer being outnumbered, created reasonable suspicion that the passenger could also be armed and dangerous. As a result, the frisk was lawful under Terry v. Ohio, and the firearm discovered on Andrew Ducksworth was admissible. The court therefore affirmed the denial of the motion to suppress and upheld Ducksworth’s conviction.
Summary of the Facts
In November 2021, a Hattiesburg police officer stopped a car around 9 PM for a defective tag light. Since the driver did not have his identification and proof of insurance, the officer asked him to exit the car. The officer conducted a protective pat-down and felt a hard object between the driver’s leg. The driver first denied that it was a weapon but later admitted it was a firearm. The officer handcuffed the driver and placed him in his squad car.
The officer then approached the passenger, Andrew Ducksworth, and asked him to step out of the vehicle. Ducksworth informed the officer that he was paralyzed from the waist down. The officer had him raise his hands and informed him that the driver had a gun, beginning a pat-down. The officer felt an object between Ducksworth’s legs and commented that he also had one. Ducksworth denied that it was a firearm. The officer handcuffed Ducksworth and waited for backup to arrive. Once the officers removed the loaded firearm from Ducksworth’s pants and discovered that he was a convicted felon, they placed Ducksworth under arrest.
Subsequently, Ducksworth was charged with being a convicted felon in possession of a firearm under 18 U.S.C. §992(g)(1). At district court, Ducksworth moved to suppress the evidence of the firearm, claiming that the officer did not have reasonable suspicion to pat him down. After hearing the officer’s testimony and reviewing evidence, the district court denied the motion to suppress.
Ducksworth then moved to dismiss the indictment on the grounds that §992(g)(1) violates the Second Amendment on its face and as applied to him. The district court also denied the motion. At trial, Ducksworth was ultimately convicted. He appealed to the Fifth Circuit Court of Appeals, alleging that the district court wrongly denied both motions and claimed that there was not enough evidence at trial to convict him.
The Fifth Circuit’s Decision
On appeal, the Fifth Circuit ultimately affirmed the denial of the motion to suppress and the denial of the motion to dismiss the indictment and found that there was sufficient evidence to support Ducksworth’s conviction.
The court emphasized that the Fourth Amendment protects against unreasonable searches and seizures with any evidence seized becoming inadmissible unless a warrantless search or seizure falls under an exception. The court cited an exception outlined by the Supreme Court’s decision in Terry v. Ohio. The Terry doctrine allows police officers to stop and briefly detain a person based on reasonable suspicion that the individual is involved in criminal activity even if there is a lack of probable cause for arrest. This allows a stop and frisk for weapons to be constitutional if the officer reasonably believes the person is armed and dangerous. This reasonable suspicion must be grounded in specific and articulable facts, not just a hunch.
On appeal, Ducksworth argued that the driver’s possession of and dishonesty about the firearm could not be imputed to him, relying on the Supreme Court precedent set in Ybarra v. Illinois. In Ybarra, the Supreme Court rejected a guilt-by-association approach to searching an “unwitting tavern patron” who had no particular connection to the suspect named in the warrant.
The Fifth Circuit distinguished Ybarra, noting that it does not bar the consideration of association with another person while evaluating whether reasonable suspicion exists. Rather, the Supreme Court has recognized in Wyoming v. Houghton that a car passenger is often involved in the same activity as the driver. Further, the Fifth Circuit has also recognized that relationship with or closeness to a suspect could be factored in assessing reasonable suspicion.
The Fifth Circuit then looked to the First Circuit as guiding authority. The case arose whenofficers pat-down a passenger and found a firearm after discovering a firearm in the driver’s waistband. In their decision, the First Circuit concluded that the situation of discovering a concealed firearm on a drive gives rise to a reasonable concern for officer safety, allowing for a pat-down of the passenger. The Fifth Circuit agreed with the First Circuit that it would be unrealistic to require officers to ignore the clear relevance of finding a hidden firearm on a driver, especially when the driver lies.
Here, Ducksworth shared a direct connection with the driver of the car unlike the tavern patron in Ybarra. The driver also lacked identification and proof of insurance, possessed a concealed firearm, and lied about it. Further, this all occurred at night in a public high-crime area with the officer was outnumbered. Therefore, Fifth Circuit found that these circumstances together created reasonable, individualized suspicion that Ducksworth could also be armed and dangerous and justified the pat-down. Thus, the court affirmed the district court’s denial of the motion to suppress.
The court then turned to Ducksworth’s claim that the evidence to convict him under §992(g)(1) was insufficient. Under §992(g)(1), the Government must prove that the defendant had a prior conviction punishable by more than one year, knowingly possessed a firearm that had traveled in or affected interstate commerce, and that the defendant knew of their prior conviction at the time of possession.
Ducksworth contested the first element, claiming that the Government had to prove a specific predicate felony that justifies permanent lifetime disarmament. Specifically, Ducksworth argued that the evidence was insufficient since he only stipulated that he had been convicted of a felony and did not identify a particular predicate or admit that it supports permanent disarmament. The court rejected his argument, citing the Supreme Court case Old Chief v. United States, which held that the Government does not need to allege or prove a specific predicate felony by name to satisfy §922(g)(1)’s prior-conviction element.
Similarly, the Fifth Circuit’s own precedent in United Sates v. Diaz recognizes that a generic stipulation is sufficient. The court acknowledged the possibility of as-applied Second Amendment challenges because not all modern felons would have been viewed as felons at the founding. The court further relied on its earlier decision in United States v. Broadnax, which held that when a defendant stipulates to a prior felony using the statutory language that defines the element, he has admitted that element as a matter of law.
Here, Ducksworth improperly merged such as-applied constitutional challenges with the separate question of evidentiary sufficiency. His stipulation that he had previously been convicted of a crime punishable by imprisonment for a term exceeding one year tracked the wording of §922(g)(1). Under Broadnax, that stipulation conclusively satisfied the first element. Therefore, the court found that Ducksworth failed to demonstrate plain error in the sufficiency of the evidence.
The court finally addressed Ducksworth’s Second Amendment challenges to §922(g)(1), both facial and as applied. Here, Ducksworth admitted that his facial challenge was rejected by the decision in Diaz. Moreover, he also acknowledged that he was on parole when arrested. In the Fifth Circuit, an individual on supervised release for a prior felony sentence falls within a category for whom as-applied challenges will fail under United States v. Kimble. Thus, the court held that his facial and as-applied Second Amendment challenges were foreclosed and that the district court correctly denied his motion to dismiss the indictment. The court therefore affirmed the judgment of the district court in full.
Key Takeaways
- A lawful Terry frisk of a vehicle passenger requires specific, articulable, and individualized reasonable suspicion that the person is armed and dangerous.
- Mere proximity to another person who possesses a firearm is not enough to justify a frisk.
- Officers must be able to point to particular facts that support suspicion about the specific passenger.
- Circumstances such as a driver possessing a concealed firearm, dishonesty about the weapon, a high-crime location, and officers being outnumbered may collectively support reasonable suspicion.
- When these factors are present together, they may justify conducting a protective frisk of a passenger for officer safety.
United States v. Ducksworth, No. 24-60473 (5th Cir. 2025)