On March 21, 2022, the Eleventh Circuit Court of Appeals decided Giddens v. Brooks County[i], which serves as an excellent review of the law related to failure to intervene and frisks. The relevant facts of Giddens are as follows:
As Plaintiff was driving home “on a lonely highway,” Plaintiff drove past Officer Frye, who was traveling in the opposite direction. Shortly after the cars passed each other, Officer Frye made a U-turn, activated his blue lights, and followed Plaintiff “with a high rate of speed.” Officer Frye stopped Plaintiff’s vehicle in front of Plaintiff’s driveway.
Officer Frye asked Plaintiff “in a hostile manner” for Plaintiff’s license and registration. Plaintiff asked why he had been stopped. Officer Frye first told Plaintiff that Plaintiff’s tag light was broken but then conceded that Plaintiff’s tag light was in fact then working. Plaintiff accused Officer Frye of lying, and the two men argued “back and forth” about the tag light and about Officer Frye’s real reason for stopping Plaintiff.
During this exchange, Officer Frye said that Plaintiff had also been speeding. Plaintiff responded, “You can’t be serious man.” Plaintiff then argued with Officer Frye about whether Plaintiff had been speeding and about why Officer Frye had failed initially to mention a speeding violation. At some point, Officer Frye took Plaintiff’s license and registration and returned to his patrol vehicle, which was a K-9 Unit: a police dog was present.
Between ten and fifteen minutes later, Officer Brown arrived at the scene. Officer Frye then walked his dog around the outside of Plaintiff’s car. Officer Frye told Plaintiff that the dog had alerted to possible contraband and instructed Plaintiff to step out of his car.
After Plaintiff exited his car, both Officers Frye and Brown conducted a pat-down search of Plaintiff’s person. Officer Frye then searched Plaintiff’s car and found no contraband. During the search process, Plaintiff continued to assert that his tag light was in fact working, accused Officer Frye of fabricating a traffic stop, and advised the officers that he intended to file a complaint.
Officer Frye issued Plaintiff two traffic tickets: one for a tag-light violation and one for speeding. The tag-light violation was later dismissed.[ii]
Plaintiff filed suit against Officer Frye, who initiated the traffic stop and search, and against Officer Brown, who arrived approximately 10-15 minutes after the stop as a back-up officer. The plaintiff alleged numerous state law violations. The district court dismissed the claims against Officer Frye because he was not properly served notice of the suit. The court also dismissed the claims against Officer Brown. The plaintiff appealed the dismissal to the Eleventh Circuit Court of Appeals.
This article will discuss the appeal of the claims against Officer Brown, particularly the claim for failure to intervene on an allegedly unlawful traffic stop and unlawful search related to the frisk.
- Failure to Intervene Related to the Stop
Officers may be liable for failure to intervene, particularly in an excessive force incident, when the officer is in a position to intervene and there is sufficient time to intervene. The Eleventh Circuit has also extended liability for failure to intervene in unlawful arrest situations where the unlawfulness of the arrest is apparent and the officer participated in some manner. The court stated
We have recognized a cause of action for failure-to-intervene in cases involving claims of excessive force and false arrest. We have said that “[a]n officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer’s use of excessive force can be liable for failing to intervene, so long as he was in a position to intervene yet failed to do so.” See Alston v. Swarbrick, 954 F.3d 1312, 1321 (11th Cir. 2020) (quotations omitted). We have also determined that a non-arresting officer may be liable for failing to intervene in an unlawful arrest “if he knew the arrest lacked any constitutional basis and yet participated in some way.” See Wilkerson v. Seymour, 736 F.3d 974, 980 (11th Cir. 2013).[iii]
The court also noted that there is no precedent where they have extended liability for “failure to intervene” to cover unlawful traffic stops. Here, the court explicitly stated that, while they would analyze the validity of the claim, this should not be taken to mean that the court was setting precedent that failure to intervene in an unlawful traffic stop is a valid basis for liability.
In it’s analysis of this issue, the court noted that Officer Brown arrived at the traffic ten to fifteen minutes after the plaintiff had been stopped, and the plaintiff alleged no facts or evidence that would suggest that Brown participated in the stop or was in a position to intervene in the stop when it occurred. Additionally, while the plaintiff’s tag light was working when Officer Brown arrived, the plaintiff never alleged facts to show that Brown had a reason to know that the other reason for the stop, speeding, was untrue (allegedly). Further, the plaintiff never alleged facts that showed that Brown had notice that the traffic stop was unreasonably prolonged. As such, the court held that the claim for failure to intervene was properly dismissed by the district court.
- The Frisk
The court first noted the general legal principles related to this issue and stated
An officer may conduct a pat-down search of a driver or a passenger during a lawful traffic stop when the officer “harbor[s] reasonable suspicion that the person subjected to the frisk is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009). Reasonable suspicion does exist when “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” See Terry, 392 U.S. at 27. “To determine whether suspicion was reasonable, we evaluate the totality of the circumstances surrounding the stop, including the collective knowledge of all officers involved in the stop.” United States v. Bishop, 940 F.3d 1242, 1249 (11th Cir. 2019) (concluding that reasonable suspicion existed to conduct a pat-down search of a passenger based upon the collective knowledge of the officers involved in the traffic stop).
The court also discussed precedent that involved the frisk of a driver on a traffic stop under similar facts to Giddens’ case. In the United States v. Knight[iv], an officer stopped Knight for failure to wear a seat belt. Knight was argumentative with the officer and the officer smelled marijuana and alcohol emanating from the car. The court held
[R]easonable suspicion exist[ed] to support a pat-down search of a driver during a traffic stop when (1) officers smelled marijuana and alcohol coming from the car and (2) “the driver argued with [the officer] at the initiation of the stop.”[v]
In the Giddens’ case, (1) he was stopped in an isolated location, near his home, (2) he was immediately argumentative with Officer Frye regarding the stop, and (3) a canine alerted to the odor of marijuana coming from the plaintiff’s vehicle. The court of appeals stated that, similar to their holding in Knight, these circumstances within the collective knowledge of Officer’s Frye and Brown were
[O]bjectively dangerous circumstances the totality of which would give rise to reasonable suspicion that Plaintiff might be armed and dangerous. Under these circumstances, an officer in Officer Brown’s place could have believed reasonably that his safety or that of others was in danger and that a pat-down search was warranted. Given the facts alleged in Plaintiff’s complaint (and guided by our decision in Knight), we cannot draw a reasonable inference that the pat-down search in this case violated a constitutional right.[vi]
Therefore, the court of appeals held that the district court properly dismissed the claim related to the frisk of the plaintiff.
[i] No. 21-11755 (11th Cir. Decided March 21, 2022 Unpublished)
[ii] Id. at 2-3
[iii] Id. at 8-9 (emphasis added)
[iv] 562 F.3d 1314 (11th Cir. 2009)
[v] Giddens at 12 (citing Knight, 562 F.3d at 1327)(emphasis added)
[vi] Id. at 13-14