On April 22, 2022, the Seventh Circuit Court of Appeals of decided the United States v. Smith[i], which serves as instructive regarding the legality of multiple frisks of the same suspect during a stop. The relevant facts of Smith are as follows:
On the night of June 18, 2018, at approximately 9:00 p.m., Leamon Smith was a passenger in Dalon Naylor’s car when Chicago police officers pulled them over for running a red light. Officers Steven Holden and Dimar Vasquez turned on their body cameras as soon as they initiated the traffic stop. Officer Vasquez approached the driver’s side of Naylor’s vehicle, while Officer Holden approached Smith, who was sitting in the front passenger seat.
As Smith handed over his driver’s license, Officer Holden commented that Smith was “shaking like a leaf.” Officer Holden asked Smith to step outside and directed him to the back of the car. Smith complied but immediately rested the front of his pelvis against the car, even though he had not been asked to do so. In fact, Officer Holden asked Smith to take a half-step away from the car. Officer Holden then performed the first of three pat-downs. The initial pat-down focused on “hot spots,” including Smith’s waistband, front pockets, and lower leg—but not his groin area. Although Officer Holden did not find any contraband, he placed Smith in handcuffs and explained that he was simply being detained.
Officer Holden suspected right away that Smith was hiding something in his pants. After the first pat-down, Officer Holden told Smith, “If it’s a little loud, we can work with it,” using a slang term for cannabis. Smith responded that he had “really nothing.” Officer Holden then asked, “We’re going to do this the hard way bro?” and told Smith, “Honesty goes a long way.”
Next, Officer Holden asked Smith to walk from the back of Naylor’s car to the front of the police car while he entered their names in a law-enforcement database. Officer Holden later testified that Smith “had that side-to-side walk, as if he was holding something in his crotch area and he was trying to walk around it, or hold it in place.” Smith then rested his pelvis against the front of the police car. After running the name check, Officer Holden asked Smith to walk from the police car back to Naylor’s car, where Smith again rested his pelvis on the car without prompting. Officer Holden offered to uncuff one of Smith’s hands so that Smith could retrieve whatever he was hiding, but Smith declined. Officer Holden later testified that he did so in the hopes of building a rapport with Smith.
Meanwhile, Officer Vasquez was conducting a consent search of Naylor’s car. Approximately six and a half minutes after the first pat-down, Officer Holden performed the second pat-down by jiggling Smith’s pant legs. Nothing fell out. Officer Holden then asked Smith to walk back to the police car one more time. Officer Holden observed that Smith was walking with an exaggerated limp and asked if he was injured. Smith responded that he had been in a car accident and injured his right leg. Officer Holden later testified that Smith’s more-pronounced limp was consistent with an item having “dropped” from his crotch.
About one minute after the second pat-down, Officer Holden conducted the third and final pat-down, this time focusing on Smith’s groin area. Officer Holden felt a hard metal object, which he removed from Smith’s underwear and determined to be a loaded handgun. All told, approximately 11 minutes elapsed between the initiation of the stop and the discovery of the gun.”[ii]
Smith was subsequently charged with being a felon in possession of a firearm under federal law. He filed a motion to suppress, and the district court denied the motion. Smith then pleaded guilty with the right to appeal the denial of his motion to suppress. He then filed a timely appeal with the Seventh Circuit Court of Appeals.
On appeal, Smith argued that the second and third frisk were unlawful searches under the Fourth Amendment because the officer lacked reasonable suspicion to support those frisks.
The court of appeals first noted the legal principles that control the issue. The court stated
- The Fourth Amendment permits officers to order drivers and passengers out of a car during a traffic stop to ensure officer safety. See Maryland v. Wilson, 519 U.S. 408, 413-15, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997).[iii]
- [T]he power to conduct a Terry stop does not automatically give police the power to frisk the subject for weapons.” United States v. Howard, 729 F.3d 655, 662 (7th Cir. 2013) (citing Terry, 392 U.S. at 27). [iv]
- To justify a pat-down of the driver or a passenger during a traffic stop, … the police must harbor 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). [v]
- [A]n officer need not be certain that a person is hiding a weapon as opposed to drugs or other contraband before performing a pat-down. See United States v. Ford, 872 F.3d 412, 414-15 (7th Cir. 2017) (“Certainty about the presence of a weapon is unnecessary; the issue is whether a reasonably prudent man in the circumstances would be war-ranted in the belief that his safety or that of others was in danger.”) (internal quotation marks omitted).[vi]
Smith conceded that the first frisk was lawful. Rather he argued that the second and third frisks lacked reasonable suspicion and were merely based on a hunch that he was hiding something.
The court then examined the second frisk. The court noted that after the first frisk, Officer Holden asked Smith and the driver to walk to police car while he checked their names through the computer. As Smith walked, the officer observed that he had an unusual “side to side walk,” and he rested his pelvis against the side of the police vehicle as if trying to keep something from falling from his pants. He also continued to appear unusually nervous. The court said that based upon the above facts, the second frisk was reasonable under the Fourth Amendment. Additionally, the court noted the second frisk was minimally intrusive and involved simply shaking each of Smith’s pants legs to see if something would fall out.
Smith argued that the officer could not have actually believed he was armed because the officer offered to un-handcuff Smith so he could remove the object for the officer. The court replied
Although this argument has some force, we reject it for two reasons. First, Officer Holden need not have been certain that Smith was hiding a weapon as opposed to drugs or other contra-band before conducting the second pat-down. See Ford, 872 F.3d at 414-15; United States v. Brown, 188 F.3d 860, 866 (7th Cir. 1999). What matters is whether a reasonable officer would fear for his safety at that moment in time. Second, even if Officer Holden suspected that Smith was merely hiding drugs, an officer’s subjective beliefs are irrelevant to the reasonable suspicion inquiry; courts ask whether, in light of the facts available to the officer at the time, a reasonable officer would have believed that the person was armed and dangerous. See United States v. Patton, 705 F.3d 734, 738 (7th Cir. 2013) (citing Terry, 392 U.S. at 27).[vii]
The court then answered that, yes, a reasonable officer could have believed that Smith was armed and dangerous at the time of the second frisk.
The court then examined the third frisk during which the gun was located. The court noted that Officer Holden asked Smith to walk back to the police car again. This time Smith had an exaggerated limp so the officer asked Smith if he was injured. Smith replied that he was in a car accident. At this point, the officer conducted a more thorough frisk of Smith’s groin area. He felt a hard, metal object which he retrieved. It turned out to be a loaded handgun.
Smith argued that a reasonable officer in that situation should have accepted his story about injuring his leg in a car crash. However, the legal standard of review regarding this argument is that the court of appeals cannot overturn the district court’s factual determination unless it was “clearly erroneous.” The court of appeals stated that the evidence does not show that the district court was clearly erroneous in crediting the officer’s testimony. Thus, they stated that they would defer to the district court’s judgment that the facts above (the exaggerated limp and car crash explanation) elevated the officer’s suspicion that Smith was armed and dangerous.
The court of appeals then held
In light of the totality of the circumstances—a nighttime traffic stop of an individual who appeared very nervous, walked strangely, and repeatedly rested his pelvis against cars as if to prop something up—we conclude that reasonable suspicion supported the final pat-down. As the district court observed, a contrary result would encourage more invasive initial pat-downs than the one that occurred here. Officer Holden’s first pat-down focused on “hot spots” like Smith’s waistband and pockets, the second pat-down consisted of shaking his pant legs, and only the third pat-down examined his groin area.[viii]
Thus, the court of appeals affirmed the denial of the motion to suppress.
The court did caution officers that this holding was specific to the facts of this case and to justify multiple frisks, an officer must have reasonable suspicion to support each frisk.
[i] No. 21-1266 (7th Cir. Decided April 22, 2022)
[ii] Id. at 2-4
[iii] Id. at 7 (emphasis added)
[vii] Id. at 10-11 (emphasis added)
[viii] Id. at 11