Parking Violation Legitimate Basis for Stop and Frisk

United States v. Torres, 2021 WL 422811 (10th Cir. 2021)

While watching an apartment suspected to be connected with drug trafficking, an investigator saw a white SUV park illegally. A woman exited the SUV and approached the apartment. The investigator radioed to a patrol officer, asking them to issue a parking citation to the driver of the SUV. The woman returned and got into the SUV; the driver left before the patrol officer could issue the citation.

The officer saw the SUV a block away from the apartment and recognized it as the one that had been illegally parked. After stopping the SUV, the officer recognized the driver, Ronald Torres, as an individual who had been shot in a gang-related shooting several months earlier and had previously been convicted of murder. The officer smelled burned marijuana coming from the car.

The court held the traffic stop was valid based on probable cause that Torres parked illegally.

The officer checked Torres’s driver license, registration and medical marijuana card. Other officers arrived and spoke to the passenger, who initially provided a false name, but soon admitted her identity and said she had marijuana in her bra and outstanding arrest warrants. She told officers she had gone into the apartment to buy heroin.

Torres consented to a search of the SUV. The officers asked Torres to submit to a frisk and he cooperated. The officer found a handgun. Torres was charged with possession of a firearm by a convicted felon. Torres asked the trial court to suppress admission of the gun, claiming the officer did not have reasonable suspicion for the traffic stop. The trial court denied his motion and Torres appealed.

The appellate court opined that the trial court had made several procedural errors to Torres’s detriment, but found the errors to be harmless. The court held the traffic stop was valid based on probable cause that Torres parked illegally. When the officer smelled the burned marijuana, that provided reasonable suspicion for further detention and questioning. The officer’s recognition of Torres’s involvement in a gang shooting and murder conviction provided reasonable suspicion that Torres was armed and dangerous, justifying the pat-down search. Thus, the officer was justified in frisking Torres.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

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 four 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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