United States v. Weaver, 2021 WL 3610861 (2nd Cir. 2021)
We don’t discuss frisk cases very often in Xiphos because the law is pretty well-settled on when a frisk is and isn’t allowed. In Terry v. Ohio (392 U.S. 1 (1968)), the United States Supreme Court approved the stop-and-frisk practice. Generally known as the “Terry frisk” doctrine, it is a very limited and narrow exception to the Fourth Amendment warrant requirement. An officer may conduct a pat-down frisk of a person only when the officer reasonably believes the person to be armed and presently dangerous to the officer or others. Even before the frisk, the officer must have a legitimate reason to stop the person. There is only one lawful purpose to a Terry frisk: to remove weapons that threaten the officer or others (Michigan v. Long, 463 U.S. 1032 (1983)). A Terry frisk is not intended to explore for drugs or other contraband.
In this case, defendant Calvin Weaver advanced a novel theory. Let’s explore it. A group of officers were cruising a neighborhood well-known for violence, including high numbers of shootings, homicides and stabbings. One of the officers in the car described the neighborhood as “an open air drug market” with a “high volume of shots fired [and] gun-related crimes.” Another officer in the car saw Weaver staring at the officers’ unmarked police car and then visibly hitching up his pants as he got into a car.
Some time later, the same officers saw the car and stopped it for failing to signal a turn. The rear seat passenger immediately threw his door open, though he stayed in the car when ordered to do so and shut the car door. Weaver was seated in the front passenger seat.
The officer who had noticed Weaver walked up to the car and saw Weaver slouching down in his seat, “shifting and squirming, and using both hands to push down on his pelvic area, as if to conceal something.” The officer testified: “As I’m approaching the vehicle, from my vantage point I can see into the cabin of the vehicle clearly, I see [Weaver] with both hands kind of pushing down on his pelvic area and squirming kinda in the seat left and right, shifting his hips.” The officer ordered Weaver to show his hands. Weaver complied and said, “I don’t got nothin’.” The officer directed Weaver to place his hands on his head. When asked for identification, Weaver said it was in his right pants pocket. The officer looked at Weaver’s pocket and told Weaver to slowly retrieve his identification card with his right hand.
The officer directed Weaver to get out of the car because he was “suspicious of his actions.” When the officer told Weaver to stand with his hands on the trunk, Weaver pressed his pelvis toward the car. The officer began to physically pat down Weaver’s clothes. With each touch by the officer, Weaver stepped closer to the car, pushing his pelvis into the car. The officer handcuffed Weaver to complete the frisk, finding baggies of cocaine in Weaver’s pocket and a loaded handgun in Weaver’s groin area.
Weaver argued the court could only consider his conduct before the officer ordered him out of the car in assessing whether reasonable suspicion existed. Weaver asserted the Terry frisk began not when the officer touched him, but at the moment the officer ordered him to get out of the car. He supported this novel theory with his subjective belief that he was being searched at that point, and because the officer had formed the intent to search him when he ordered Weaver out of the car. Weaver claimed the facts known to the officers before he got out of the car did not provide them with reasonable suspicion that he was armed.
The trial court rejected Weaver’s novel theory and ruled the officers had reasonable suspicion Weaver was armed, thus making the frisk lawful. The trial court supported its conclusion that the frisk was lawful and that the discovery of the cocaine and gun was proper with the following factual findings:
Weaver asserted the Terry frisk began not when the officer touched him, but at the moment the officer ordered him to get out of the car.
- The stop occurred in a high-crime neighborhood.
- The officers saw Weaver surveying their vehicle in a manner they found unusual.
- An officer saw Weaver pull up his waistband while walking, suggesting that something heavy was concealed there.
- When the officers stopped the car, the rear passenger opened his door in a manner that caused the officers to believe he might attempt to flee.
- While approaching the car, the officer saw Weaver slouching in his seat and pushing down on his pelvic area with both hands while shifting his hips left to right, “as if he was attempting to conceal something in his pants.”
- When the officer told Weaver to put his hands up, Weaver said, “I don’t got nothing.”
- When ordered out of the car, Weaver pressed his pelvis toward the car, which the officer testified was “abnormal.”
Though the conclusion that the frisk was easily justified seems readily apparent, two of the three appellate judges agreed with Weaver’s theory that they should only consider what the officer saw before Weaver got out of the car. Even then, one can argue that Weaver’s unusual pelvic movements and hitching up his pants suggested that he was armed. Nonetheless, a divided appellate court panel reversed the district court.
The majority of the en banc court (9 out of 12 judges) reached a different conclusion. First, the court held that the facts plainly supported the officer’s frisk under the Fourth Amendment. The en banc court rejected reliance on Weaver’s creative argument about when the search occurred. The court held that the officer’s “verbal directives to a suspect do not transform a stop into a search when they do not amount to a physical trespass or intrusion into an area subject to a reasonable expectation of privacy, irrespective of any reasonable belief by a suspect as to whether a search is occurring. Second, a police officer’s subjective intent bears no weight in determining when that officer’s interaction with the suspect constitutes a search. Third, in evaluating whether an officer has reasonable suspicion that a suspect is armed, courts must look to the totality of the circumstances confronting the officer, as viewed objectively by a reasonable and cautious officer on the scene.” In other words, the en banc court held that lower courts must stay the course of solid Fourth Amendment precedent. The court vacated the three-judge panel decision and affirmed the district court’s judgment, reinstating Weaver’s convictions for possession of cocaine and possession of a firearm by a convicted felon.
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