On December 27, 2019, the Eighth Circuit Court of Appeals decided the United States v. Green[i], which serves as an excellent review of the law related to traffic stops and frisks. The facts of Green, taken directly from the case, are as follows:
At approximately 1:00 a.m. on January 13, 2018, Jordan Ehlers, a police officer in Waterloo, Iowa, observed a black Nissan Rogue SUV that, based on his visual estimation, was speeding. Ehlers ran a search of the license plate number on the SUV, which returned a record for a different vehicle. While following the vehicle, he also noticed that a license plate frame on the SUV covered a portion of the license plate and registration. Based on these three facts, Officer Ehlers initiated a traffic stop.
Once the SUV stopped, Ehlers shined his spotlight on the back of the vehicle, and he observed passengers making what he perceived as suspicious movements. Ehlers exited his patrol car and approached the front passenger side of the vehicle. As the front passenger opened his window, Ehlers immediately smelled alcohol. He also observed open liquor bottles in the car and noticed that the floorboard appeared wet. Ehlers requested identification from the driver and from each of the three passengers. The front seat passenger did not have identification but identified himself as Tereall Green. Officer Ehlers recognized Green’s name from a prior intelligence report indicating that Green was seen in a Facebook video possessing a weapon. Ehlers then turned to the back-seat passengers, requesting identification from each of them. When one of them rolled down his window, Ehlers smelled marijuana. This passenger identified himself as Deshawn Marks. The other back-seat passenger said his name was “Spencer Green.” Ehlers noticed that “Spencer Green” appeared nervous, and he recognized “Green” as Javonta Herbert from prior contact with him.
After Officers Randy Girsch and Kenneth Schaaf arrived on the scene, Officer Ehlers asked Tereall Green to exit the SUV. He conducted a brief frisk of Green—quicker than normal due to the cold temperature. He did not find anything. Ehlers then frisked Marks, finding clear plastic baggies of marijuana. Because both Green and Marks were shivering, Officer Girsch offered to let them sit in his patrol car, an offer both men eventually accepted.
Back at the SUV, Ehlers asked “Spencer Green” to step out of the car. Ehlers asked if he was Javonta Herbert, and Herbert conceded that was his real name. Ehlers then conducted a patdown of Herbert. As Ehlers frisked Herbert, Officer Schaaf used his flashlight to look into the backseat floorboard of the SUV. He saw a handgun where Herbert had been sitting and immediately yelled “ten thirty-two”—a police code that indicated he had discovered a firearm in the vehicle. Ehlers placed Herbert under arrest.
Officer Girsch, who was standing beside the patrol car in which Tereall Green and Marks were sitting, heard Officer Schaaf call out the “ten thirty-two.” Girsch decided to handcuff Green while another officer handcuffed Marks. Although he had observed Ehlers frisk Green earlier in the stop, Officer Girsch frisked him again, this time conducting a more thorough patdown. Girsch discovered a loaded firearm hidden in Green’s pants. Green subsequently fled on foot. Officers pursued and captured him within minutes.[ii]
Green and Herbert were subsequently indicted for federal firearms violations. Green later appealed the denial of his motion to suppress the gun discovered during the frisk of his person, arguing the officer lacked reasonable suspicion to stop the vehicle and that the frisk was unreasonable under the Fourth Amendment.
The first issue was whether the traffic stop was legal under the Fourth Amendment. Regarding Green’s argument that the traffic stop was illegal because it was not based on reasonable suspicion, the court of appeals noted that Officer Ehlers testified to three traffic violations that he observed: (1) he testified that, based on his visual estimation, the driver was speeding; (2) he checked the license plate on the vehicle and it returned to a 2004 Mercedes ML500, but it was displayed on 2011 Nissan Rogue; and (3) he testified that the license plate frame partially obscured the tag. These were all violations of Iowa traffic statutes. The court of appeals noted
Under the Fourth Amendment, a traffic stop is reasonable if it is supported by either probable cause or an articulable and reasonable suspicion that a traffic violation has occurred.” United States v. Washington, 455 F.3d 824, 826 (8th Cir. 2006). “Even a minor traffic violation provides probable cause for a traffic stop.” United States v. Harris, 617 F.3d 977, 979 (8th Cir. 2010).[iii]
The district court credited the officer’s testimony, and since there was no reason to believe the district court erred, the court of appeals agreed that the officer had sufficient reasonable suspicion to stop the vehicle.
The second issue was whether the frisks were legal under the Fourth Amendment. Green was frisked twice during the stop. The first frisk was quick and cursory and did not locate a weapon. The second frisk occurred after a firearm was seen in the vehicle, and a firearm was located in Green’s pants during this second frisk.
The court first noted the legal principles that apply and stated
Officers may conduct a protective pat-down search for weapons during a valid stop . . . when they have objectively reasonable suspicion that a person with whom they are dealing might be armed and presently dangerous . . . .” Gaffney, 789 F.3d at 870. “In determining whether reasonable suspicion exists, we consider the totality of the circumstances in light of the officers’ experience and specialized training.” United States v. Preston, 685 F.3d 685, 689 (8th Cir. 2012). “A pat-down is permissible if 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]
The court of appeals then examined whether the first frisk was reasonable under the Fourth Amendment. The court first noted that the officer had intelligence that Green was seen in a video on Facebook in possession of firearm. Additionally, the officer smelled marijuana in the vehicle and had seen the vehicle occupants engaged in furtive movements in the vehicle as the vehicle stopped. The court stated
A suspicion on the part of police that a person is involved in a drug transaction supports a reasonable belief that the person may be armed and dangerous because weapons and violence are frequently associated with drug transactions.” United States v. Crippen, 627 F.3d 1056, 1063 (8th Cir. 2010).[v]
Based on the facts above, the court of appeals held that the totality of the circumstances provided the officer with reasonable suspicion that Green was armed and dangerous.
The court of appeals then examined the second frisk of Green where a firearm was located. This frisk occurred after another officer observed a firearm in Green’s vehicle. The court noted that the first frisk was “quick and cursory” because of the frigid temperature. The discovery of the firearm in the vehicle heightened the risk and justified a more thorough, second frisk. Specifically, the court stated
Although the presence of a gun in possession of one individual does not necessarily justify a patdown of a companion of that individual, it is a fact to be considered in determining the overall reasonableness of the officer’s actions. See Wilson v. Lamp, 901 F.3d 981, 987 (8th Cir. 2018); United States v. Menard, 95 F.3d 9, 11 (8th Cir. 1996) (concluding that it was reasonable to frisk the companion of an armed individual because finding one weapon “heightened the threat to officer safety”). Moreover, given that the first patdown was quick and cursory due to the frigid temperatures, it was reasonable in light of the discovery of one weapon for Girsch to conduct a more thorough patdown. See United States v. Osbourne, 326 F.3d 274, 278 (1st Cir. 2003) (finding the thoroughness of the initial frisk to be among the relevant factors to be considered in evaluating the reasonableness of a second frisk).[vi]
Thus, the court of appeals held that both frisks of Green were reasonable under the Fourth Amendment, and they affirmed the denial of the motion to suppress.
[i] No. 18-3589, 3591 (8th Cir. Decided December 27, 2019)
[ii] Id. at 2-3
[iii] Id. at 5 (emphasis added)
[iv] Id. at 7 (emphasis added)
[v] Id. (emphasis added)
[vi] Id. at 8 (emphasis added)