Appeals Court: ‘Frisking’ A Vehicle Is Completely Normal And Not Any Sort Of Rights Violation

Legal Issues

from the so-where-is-a-car's-crotch,-TSA-litigants-ask dept

Welcome to America, where not only are people subject to frisks by cops when things seem reasonably suspicious, but their vehicles are as well.

A “Terry stop” is generally understood to apply to a person. When cops have enough reasonable suspicion, they can stop a person, ask questions, and pat them down to search for contraband and/or weapons.

Here’s how Wikipedia defines a “Terry stop:”

A Terry stop in the United States allows the police to briefly detain a person based on reasonable suspicion of involvement in criminal activity. Reasonable suspicion is a lower standard than probable cause which is needed for arrest. 

The Wikipedia article goes on to note that other forms of Terry stops include traffic stops and the hassling of people utilizing public transportation like buses.

It’s well-established that driving a car on public roads greatly decreases a person’s expectation of privacy in their car’s contents. Additionally, “plain view” — the theory that cops are free to observe anything a passerby could see by walking near the vehicle — applies, allowing cops to move forward with more intrusive searches if contraband is seen by cops peering through a car’s windows.

But does that necessarily mean more intrusive efforts — one’s that don’t include entering a car but doing more than a passerby would — are subject only to reasonable suspicion, rather than the slightly higher bar of probable cause?

This decision [PDF] by the Eight Circuit Court of Appeals says yes. The only thing cops need to, in essence, “frisk” a car is reasonable suspicion.

Randy Dabney was arrested and hit with drug trafficking charges as the result of a traffic stop. He attempted to have the evidence seized from his vehicle suppressed, arguing that cops did not have enough reasonable suspicion to justify their initial cursory “search” of his vehicle.

There was enough suspicion to frisk Dabney, the court says. And that suspicion extends to his car, which cops “frisked” by shining flashlights through its windows in order to see what was contained in areas the officer believed to be inherently suspicious. This all happened even though the arresting officer admitted suspicion has dissipated and Dabney was free to go.

[Officer Zach] Pugh walked back to the truck and motioned for Dabney to step out. With Dabney’s consent, Pugh frisked him for weapons. When that didn’t turn up anything of note, Pugh asked Dabney for permission to search his truck. He refused, but Pugh searched anyway. Pugh testified that, by that point, he had already decided to let Dabney go, which meant that Dabney could return to his truck and access any weapons hidden in the cab.

Notably, Officer Pugh did not inform Dabney he was free to go. And he appears to have performed a non-consensual search of a vehicle that he, at that point, did not consider to contain contraband. But the officer did the search because he could. And he found something.

While another officer stood outside with Dabney, Pugh began searching areas of the truck where a weapon could be hidden. Pugh noticed a hole in the driver’s door where a speaker should be. In the dark, he couldn’t make out what was inside. He shined his flashlight and discovered a “rather large bag” containing a “white crystalline substance.” Pugh pulled the bag out of the hole and saw that it contained several smaller baggies. The officers arrested Dabney, who waived his Miranda rights and admitted that the bag contained heroin, meth, and cocaine. The drugs recovered in this stop led to Counts 1 and 2 in the second superseding indictment.

There’s a lot that’s concerning here. First, the officer stated he was willing to let Dabney go but chose to perform an additional search. Second, the search was not “plain view,” nor was it the equivalent of a frisk. The officer turned on a flashlight, taking him beyond what people would expect from passersby, who likely would not aim a flashlight into a car they do not own. Then Dabney reached into the vehicle and took out a baggie of contraband, reaching into a car as though it was nothing more than Dabney’s pockets, which had already been patted down at that time.

What looks like an intrusive search performed without consent or probable cause is declared to be nothing more than a “frisk,” albeit one that involved an inanimate object rather than suspicious living, breathing person.

Two lower levels agreed with the cops. This was a frisk of a car, albeit one seemingly unjustified by reasonable suspicion or concerns about officer safety after the driver had been patted down.

Dabney moved to suppress the drugs and his confession, arguing that Pugh’s search of his truck violated the Fourth Amendment. The magistrate judge who presided over the evidentiary hearing disagreed, concluding that Pugh had a reasonable suspicion that Dabney was armed, making his Terry frisk of Dabney’s truck legal. The district judge agreed and adopted the magistrate judge’s report and recommendation.

Free to go but still searched and arrested. The Eight Circuit says there’s nothing wrong with this.

Dabney […] argues that even if Pugh was justified in searching the truck, he exceeded the lawful scope of that search. First, Dabney says that the stereo hole was not large enough to contain a weapon. If that were true, Pugh’s search might have been unlawful. See Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (Terry searches “must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.”) (quotation omitted). But the district court, adopting the recommendation of the magistrate judge, found that the stereo hole was big enough to hold a gun. Dabney has given us no reason to think that this finding was clearly erroneous.

Second, Dabney argues that Pugh unlawfully exceeded the scope of his search by shining a flashlight into the stereo hole. Essentially, he claims that the moment Pugh realized that there wasn’t a weapon in the stereo hole, he was required to stop looking. But officers don’t violate the Fourth Amendment by using “a flashlight to facilitate their observations.” United States v. Sanders, 87 F. App’x 83, 86 (10th Cir. 2004). We held as much in United States v. Cummins, 920 F.2d 498, 502 (8th Cir. 1990) (holding that officer was entitled to shine flashlight into a suspect’s car during a Terry stop).

So, that’s it. A car can be frisked. This can happen despite a cop admitting in court he had no reasonable suspicion to search the person or his car further. A flashlight deployed to peer into places not actually in plain view is considered an acceptable “frisk” of the car’s… um… pockets.

That’s the jurisprudence. It’s backed by precedent. And it upholds everything that came before it. Your car is your pants when it comes to traffic stops. And even when cops admit they have no reason to search further, there’s a good chance they can get their further searches to stick by claiming reasonable suspicion existed at some point and justified even searches cops admitted were apparently unjustifiable. Good luck with that, drivers located in the Eighth Circuit.

Filed Under: 4th amendment, 8th circuit, cars, frisk, police, probable cause, reasonable suspicion, search, terry stop