Court Rules Frisk Was Unlawful Despite Being Authorized by Policy

by | September 30, 2016


Sellman v. State, 2016 WL 4470904 (Md. 2016)

Officers saw Sellman walking at 2 a.m. in a dark area of a large apartment complex known for violence. He appeared to abruptly reverse direction upon seeing the officers. A few minutes later, the officers saw Sellman get into a car driven by another person. Observing a broken tail light, the officers stopped the car.

The officers issued a written warning to the driver. As they spoke with the driver, she said that she had picked up Sellman and that he lived in the apartment complex. Shortly after that, one of the officers spoke with Sellman. Sellman sat completely rigid in his seat, hands on his knees and looking straight ahead. He never turned his head when speaking with the officer. Sellman denied living in the area.

The driver consented to a search of the vehicle. The officers ordered Sellman out of the car and asked him if he had any weapons; Sellman said no. The agency’s policy authorized pat-downs of all passengers every time a motorist consents to a search. The officers frisked Sellman and found a gun in his waistband.

The court held that the frisk was unlawful, despite being in accordance with agency policy. Obviously, an agency policy can never trump constitutional and statutory requirements. The court stated, “Where reasonable suspicion that the occupant is armed and dangerous is absent, the frisk of an occupant is an unreasonable intrusion on Fourth Amendment protections. This pernicious institutionalized procedure is unlawful and is counter to Terry and its progeny.” Thus, the evidence of the gun was improperly obtained.

This case raises some of the most common questions raised about traffic stops and passengers. Click here for a brief review.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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