ELEVENTH CIRCUIT UPHOLDS FRISK DURING CARETAKING ENCOUNTER
By Brian S. Batterton, J.D.
On April 10, 2019, the Eleventh Circuit Court of Appeals decided the United States v. Simmons[i], in which the court examined whether an officer acted reasonably under the Fourth Amendment when he frisked what appeared to be a stranded motorist. The relevant facts of Simmons, taken directly from the case, are as follows:
On January 1, 2018, at around 7:30 p.m., Deputy Carlos Roman was dispatched to a broken-down vehicle sitting in the left turn lane of a divided highway in Palm Shores, Florida. Approaching the vehicle, Deputy Roman asked a man sitting in the driver’s seat, defendant Simmons, what was going on and whether his car was broken down. Defendant Simmons did not respond to his questions. Deputy Roman asked Simmons his name, and Simmons mumbled something that Deputy Roman could not understand. Deputy Roman then asked Simmons for his driver’s license, and Simmons began fumbling in his car, but did not produce a driver’s license. As Deputy Roman scanned the inside of the vehicle with his flashlight, he noticed a metal clip above Simmons’s pants line, which, based on his training and experience, Deputy Roman knew was the kind used to carry a knife or gun without a holster.
Deputy Roman “made a mental note” of the clip but continued to try unsuccessfully to communicate with Simmons. When he asked Simmons for his vehicle registration, insurance, and license, Simmons turned his back completely away from Deputy Roman in an unusual way so that Deputy Roman could not see his hands. After Simmons reached into his glove compartment and still did not produce identification, Deputy Roman asked Simmons again whether he had a driver’s license, and Simmons sat back in his seat but remained “extremely uncommunicative.” Deputy Roman told Simmons he needed “some kind of identification,” and Simmons again turned his back to Deputy Roman.
At this point, Deputy Roman, sensing that something was not right, told Simmons to stop and put his hands on the wheel. Deputy Roman explained that ordinarily, when he responds to a broken-down vehicle, the occupants readily answer his questions about the problem because they want to expedite a remedy. Simmons, on the other hand, was uncooperative, evasive, and uncommunicative, which concerned Deputy Roman and led him to believe something either criminal or medical might be afoot. Deputy Roman wanted to remove Simmons from his car to determine if he was experiencing a medical condition, such as a diabetic
seizure, which can cause someone to not respond. However, Deputy Roman felt the situation was “completely unsafe” and backed away from the car and called for back up.
Less than five minutes later, Melbourne police officer Ashley Vanasdale arrived. Deputy Roman advised her that Simmons was not cooperative, nonresponsive, and making furtive movements and that he wanted to remove Simmons from the car. The two officers approached the vehicle, and Deputy Roman opened the car door and asked Simmons to get out. Officer Vanasdale told Simmons to make sure they could see his hands at all times. Officer Vanasdale also described Simmons as mumbling and not making sense, and she also believed he might be medically impaired.
As Deputy Roman placed his hands on Simmons and escorted him out of the vehicle, Deputy Roman felt Simmons “tense up,” which Deputy Roman knew from his training and experience indicated a person might fight or flee. Deputy Roman told Simmons to calm down and asked him what was wrong and whether he was okay. Simmons did not respond and had a “dead look on his face.” Deputy Roman advised Simmons that he was going to handcuff Simmons for everyone’s safety. Deputy Roman then handcuffed Simmons behind his back and conducted a pat-down search of the front area of Simmons’s pants where he had seen the metal clip. Deputy Roman felt something heavy and hard, which be believed was a weapon, and removed a loaded Glock with a metal clip on it from Simmons’s waistline.
Deputy Roman ran a check on the firearm and determined it was stolen. The officers found mail in Simmons’s car with his name on it and confirmed his identity in a database of driver’s license pictures. When Deputy Roman learned Simmons had prior felony convictions and did not have a permit to carry the firearm, Simmons was arrested. Due to Deputy Roman’s concerns about Simmons’s medical condition, he did not have Simmons taken directly to jail, but rather to a hospital to be medically evaluated.[ii]
Simmons was ultimately charged under federal law for possession of a firearm by a convicted felon. He filed a motion to suppress the firearm and argued that the frisk violated the Fourth Amendment. The district court denied the motion and Simmons appealed to the Eleventh Circuit Court of Appeals.
On appeal, Simmons argued (1) that he was seized under the Fourth Amendment when the deputy ordered him to keep his hands on the steering wheel, and (2) that the detention was unreasonable under the Fourth Amendment because the deputy did not have reasonable suspicion that Simmons was engaged in illegal activity.
At the outset, the Eleventh Circuit examined legal principles that are relevant to Simmons’ case. First, the court stated
Not every encounter between a police officer and a citizen in a public place constitutes a seizure. United States v. De La Rosa, 922 F.2d 675, 678 (11th Cir. 1991). For example, as the Supreme Court has noted, police officers frequently interact with the public … “in which there is no claim of criminal liability and engage in what . . . may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528 (1973). Such consensual encounters do not implicate the Fourth Amendment. United States v. Jordan, 635 F.3d 1181, 1185-86 (11th Cir. 2011).[iii] [emphasis added]
Thus, the Eleventh Circuit likened “community caretaking” efforts by the police to consensual encounters. The court went on to describe factors that courts consider when determining whether an encounter is consensual. The court stated
A consensual encounter becomes a “seizure” for Fourth Amendment purposes “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968). Although an imprecise test, we look at factors such as “whether a citizen’s path is blocked or impeded; whether identification is retained; the suspect’s age, education and intelligence; the length of the suspect’s detention and questioning; the number of police officers present; the display of weapons; any physical touching of the suspect; and the language and tone of voice of the police.” De La Rosa, 922 F.2d at 678.[iv] [emphasis added]
Simmons argued that he was seized when he was ordered to put his hands on the steering wheel. The government argued that Simmons was not seized under the Fourth Amendment until the deputy had Simmons exit the vehicle and handcuffed him.
The Eleventh Circuit then opined that regardless of when the encounter became a seizure under the Fourth Amendment, the deputy acted reasonably when he told Simmons, who at the time was still sitting in his car, to keep his hands on the steering wheel to allow the deputy to ensure his own safety as he interacted with Simmons. The court explained several facts that supported the deputy’s request. First, Simmons was not responding to questions like a typical disabled motorist. Second, when asked some questions, Simmons failed to respond, and to other questions, he mumbled incoherently, such that he appeared impaired in some way. Third, Simmons made furtive movements, turning his back on the deputy in an unusual manner and obscuring the deputy’s view of his hands. Fourth, Simmons was unable to produce any identification, proof of insurance, or vehicle registration. Lastly, the deputy observed a metal clip at Simmons’ waistband that he recognized as the type that would clip a firearm or a knife. The deputy testified that after observing the metal clip and in light of all the other facts, he realized that the situation was not safe and ordered Simmons to put his hands on the steering wheel and not move. He then called for back-up so he could continue to investigate why Simmons car was stopped in the road and whether he needed medical help. The court then stated
Given Simmons’s extremely odd and unresponsive behavior and the metal clip on his waistband, Deputy Roman reasonably suspected that Simmons was armed and posed a threat to Deputy Roman’s safety. The Fourth Amendment does not require a police officer to ignore objectively reasonable warning signs of a threat to his own safety when he interacts with a citizen, whether he is investigating that citizen for a crime or not. See Bonds, 829 F.2d at 1074.[v] [emphasis added]
The court thus held that, based on the facts, it was reasonable for the deputy to believe that Simmons posed a threat and the deputy acted reasonably in ordering him to keep his hands on the steering wheel and not move.
The court then continued with its analysis and observed that when the back-up officer arrived, the deputy told Simmons to exit his vehicle to determine if he was medically impaired. When Simmons exited his vehicle, he tensed up, and the deputy recognized this as a sign he may be preparing to fight or flee. At this point, the deputy handcuffed Simmons and conducted a frisk for weapons, as he had observed the metal clip at his waistband while Simmons was seated in the vehicle.
Regarding the legal principles pertaining to frisks for weapons, the court stated
[W]hen an officer legitimately encounters an individual, whether he is investigating that individual or not, the officer may reasonably believe himself to be in danger and may wish to determine quickly whether that person is armed. United States v. Bonds, 829 F.2d 1072, 1074 (11th Cir. 1987); cf. Terry, 392 U.S. at 29, 88 S. Ct. at 1884 (explaining that a frisk may be justified to protect officers and others nearby if it is limited in scope to an intrusion designed to discover weapons). This belief must be based on a reasonable suspicion that the individual is armed and dangerous. Arizona v. Johnson, 555 U.S. 323, 332, 129 S. Ct. 781, 787 (2009). The standard requires “an objectively reasonable fear based upon specific facts regarding specific individuals.” Bonds, 829 F.2d at 1074. Reasonableness is defined in objective terms by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996); see also United States v. Matchett, 802 F.3d 1185, 1192 (11th Cir. 2015) (explaining that when considering whether an officer reasonably believed his safety was threatened, we evaluate the totality of the circumstances and not each fact in isolation). We afford officers great deference in their evaluation of the attendant circumstances threatening their safety on the scene. United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003).[vi]
Looking at the “totality of the circumstances” in Simmons case, the court noted his unusual behavior in the vehicle, the furtive movements, the metal clip at his waistband, the fact that he tensed up when exiting the vehicle, his continued non-responsiveness to questions, and the “dead look” on his face, the court held it was reasonable for the deputy to believe that Simmons may be “armed and dangerous,” secure him in handcuffs, and conduct a frisk for weapons.
Therefore, the Eleventh Circuit affirmed the denial of the motion to suppress.
[i] No. 18-13631 (11th Cir. Decided April 10, 2019 Unpublished)
[ii] Id. at 2-5
[iii] Id. at 5
[iv] Id. at 6
[v] Id. at 9
[vi] Id. at 6-7