On August 6, 2014, the First Circuit Court of Appeals of decided the United States v. Martinez [i], which serves as an excellent review of the legal requirements of a frisk for weapons. The relevant facts of Martinez, taken directly from the case, are as follows:
On April 10, 2011, two members of the “Latin Kings” street gang were shot to death as they sat in a car in Worcester, Massachusetts. The wake for one of the victims was scheduled to take place at a church in Framingham, Massachusetts, at 4:00 PM on April 14, 2011. Framingham police officer Robert Lewis informed other officers of the wake at roll call before their 4:00 PM shift on April 14 and advised them that there was a heightened risk for gang violence in the area. The Framingham Police Department assigned Lewis, along with Detective Matthew Gutwill and other Framingham law enforcement officers, to monitor the area around the church where the wake was held.
Soon after the wake concluded, Gutwill drove by nearby Roosevelt Park and observed a number of cars and people gathering there. The park was located close to an address where police believed that people who had attended the wake would congregate. Gutwill did not recognize as gang members any of the people he saw there. He did, however, relay his observation of the gathering to a dispatcher over the police radio, expressing concern that “something wasn’t right.”
Upon hearing of Gutwill’s message to the dispatcher, Lewis drove to the park. There, he saw two marked police cars approach the park and a third, silver car leave abruptly, with its tires screeching. After the car ran a red light, Lewis pulled it over, notified dispatch that he was conducting a traffic stop, and requested backup.
When he approached the car, Lewis observed four people inside. He recognized the front-seat passenger as Raymond Martinez, the appellant, whom he had met before and knew to be a member of the “Bloods” street gang. Lewis also knew that Martinez had previously been charged with assault and battery and dangerous weapons offenses. Consequently, through the open, driver’s-side window, Lewis instructed the car’s occupants to keep their hands where he could see them. The backseat passengers put their hands on the backs of the headrests of the seats in front of them, and Martinez put his hands on the dashboard.
Lewis asked the driver for his license and registration. The driver said he had neither, but identified himself as Michael Tisme. Lewis recognized that name as belonging to a member of the “Bloods” gang. After being told Tisme’s name, Lewis told Tisme that he smelled marijuana in the car. He then ordered Tisme to exit the vehicle to be placed under arrest.
At that time, Lewis saw Martinez pull his hands off the dashboard and reach toward his waist. Lewis yelled at Martinez to put his hands back on the dashboard, which he did. Lewis then conducted a pat search of Tisme and found a bag of marijuana in his pocket.
At this point, Gutwill arrived on the scene. Lewis warned Gutwill that Martinez appeared nervous and had been pulling his hands toward his waist, and asked Gutwill to watch Martinez. In the course of doing so, Gutwill observed Martinez again moving his hands off the dashboard toward his waist. All parties now agree that Martinez was moving his hands to his waist to reach a phone, and that, at some point during the stop, he managed to place a twelve-second call while in the car with the other two passengers. The evidence is conflicting as to whether any officer actually saw the phone. The district court found that they did not.
Shortly thereafter, a third law enforcement officer, Sergeant Kathryn Esposito, arrived and heard Gutwill repeatedly ordering Martinez to keep his hands on the dashboard. Gutwill instructed Esposito to remove Martinez from the car because Martinez was reaching for his waistband. Esposito removed Martinez from the car, walked him to Gutwill’s nearby vehicle, and ordered him to place his hands on the vehicle and spread his feet. She then asked if he had any weapons on him. When an answer was not forthcoming, she conducted a pat-frisk of him. As she started to search his waistband, Esposito noticed a hard object that felt like the butt of a gun. She asked Martinez, “What’s this?,” and when he again failed to respond, she told him not to move and then pulled the object–a loaded firearm–from his waistband. The officers then placed Tisme and Martinez in handcuffs. [ii]
Martinez was charged with federal firearms violations, and he filed a motion to suppress, arguing that the officers lacked a sufficient reasonable belief that he was armed and dangerous to support the frisk. The district court denied the motion and he entered a conditional guilty plea. He then appealed the denial of the motion to suppress to the First Circuit Court of Appeals.
The issue before the court was whether, based on the totality of the circumstances, the officers had a reasonable belief that Martinez was armed and dangerous when they conducted the frisk. At the outset the court noted that the rule regarding frisks set forth in Terry v. Ohio. [iii] The court stated:
In Terry v. Ohio, 392 U.S. 1, 27 (1968), the Supreme Court concluded that, under the Fourth Amendment to the United States Constitution, “there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” The Court continued, “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. [iv] [emphasis added]
First, Martinez argued that he was only reaching for a cell phone. The court noted that even if, as Martinez argued, he was only reaching for his cell phone, the court stated it was still reasonable for officers to perceive he was reaching for a possible weapon.
Second, Martinez argued that, even if the officers did not realize he was only reaching for a cell phone, the frisk was still not supported by a sufficient reasonable belief that he armed and dangerous.
The court noted that they decided a case in 2011 that is instructive in Martinez’s case. In the United States v. McGregor [v], the First Circuit held that a frisk for weapons was constitutionally reasonable where officers observed two men, one of whom was a known gang member, drive up to a hospital where two other gang members who had been shot were taken. The officers observed McGregor leave the hospital a high rate of speed and appear unusually nervous when approached by officers. The court upheld that frisk.
The court then applied the rule in Terry and the holding in McGregor to the facts of Martinez’s case. Specifically, the court stated:
At the time of Martinez’s detention, officers knew that a wake for a murdered member of the “Latin Kings” gang had taken place that evening, and were thus on patrol for gang violence in that area. They had observed the car in which Martinez was riding leave abruptly as soon as police cruisers arrived, running a red light in the process. Lewis had recognized Martinez as a member of the “Bloods” gang and as an individual who had previously been charged with dangerous weapons offenses and with assault and battery. When Tisme identified himself, Lewis had further recognized his name as belonging to a member of the “Bloods” gang. And with all this background in mind, officers watched Martinez repeatedly flout their orders to keep his hands on the dashboard, instead reaching toward his waist, as they attempted to complete Tisme’s arrest. As in McGregor, police in a highly volatile situation relied not simply on gut feelings, but on objectively reasonable justifications for suspecting that an individual acting suspiciously during a traffic stop was armed and dangerous. [vi]
Thus, the First Circuit affirmed the denial of the motion to suppress and held the frisk was reasonable under the Fourth Amendment.
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. 12-2219 (1st Cir. Decided August 6, 2014)
[ii] Id. at 2-5
[iii] 392 U.S. 1 (1968)
[iv] Martinez at 9
[v] 650 F.3d 813 (1st Cir. 2011)
[vi] Martinez at 10