Raise Your Hand(s) if You’d Like to Be Frisked

United States v. Kennedy, 2022 WL 1814853 (8th Cir. 2022)

Shortly after 0300 hours, Officer Frye saw a black car “brake excessively” as it passed him. Officer Frye relayed this information to Officer Jackson and told him to watch for the black car. Officer Jackson saw the black car pull into a driveway, shut off its lights and, after a few minutes, drive away. Officer Jackson followed and observed a license plate display violation.

Officer Jackson initiated a traffic stop and asked the driver, Chelsea Kerr, for her license. Kerr said she did not have it with her, but provided her name, date of birth and current address. Officer Jackson noticed that Kerr’s hands were visibly shaking as they spoke. Officer Jackson also asked the passengers for their names. William Kennedy was in the front seat; the back seat passenger said his name was Joseph Robbins. Officer Jackson returned to his patrol car to perform computer checks.

Officer Frye arrived. He walked up to the black car, noting the rear passenger was “slouching from side to side” and making “furtive movements.” He spoke to the rear seat passenger, who again identified himself as Joseph Robbins. But Officer Frye knew Robbins and knew that the man in the backseat was not Joseph Robbins. In the meantime, Officer Jackson discovered a warrant for Kerr’s arrest.

Officer Jackson arrested Kerr and placed her in his patrol car. Neither passenger had a valid driver’s license, but they claimed someone was on the way to get the car. Officer Frye asked Kennedy to get out of the car and asked whether Kennedy had “any weapons on him.” Kennedy answered that he did not. Officer Frye asked if he could pat Kennedy down “to make sure.” In response, Kennedy just raised his hands above his head.

Officer Frye felt a bulge in Kennedy’s left pants pocket and asked Kennedy what it was. Kennedy said he had “keys and other stuff,” before beginning to take items out of his pocket, including $2,855 in cash and a black digital scale. Officer Frye could see into Kennedy’s jacket pocket, shined his flashlight into it and saw “a clear glass smoking device with burnt residue which he believed to be methamphetamine.” Officer Frye told Kennedy he was not under arrest but was detained because of the pipe. Officer Frye placed Kennedy in the back of his patrol car.

When Officer Frye asked Kennedy whether he minded allowing Officer Frye to check him for weapons, Kennedy did not protest.

Officer Frye then searched the front passenger seat area, finding several baggies filled with methamphetamine and more cash. Officer Frye searched Kennedy again and found an additional 20 grams of methamphetamine in his jacket pocket. Kennedy was charged with possession of methamphetamine.

Kennedy asked the trial court to suppress the evidence from the stop. He argued the officers unlawfully extended the traffic stop and claimed he had been unlawfully searched. The trial court denied his motion and Kennedy appealed.

Kennedy argued that once the officers dealt with the driver and arrested her, they should have left the two passengers alone and not had any further conversation or contact with them. The court found no merit in his claim. Because it was dark and the car was parked on a snowy road, partially in the dimly lit roadway, it was appropriate for the officers to wait for the person that Kennedy claimed was coming to get the car.

In 1977, the U.S. Supreme Court laid down a bright-line rule that an officer may always require a driver to get out of a lawfully stopped vehicle (Pennsylvania v. Mimms, 434 U.S. 106 (1977)). Twenty years later, the Court extended its ruling to all passengers in a lawfully stopped car in Maryland v. Wilson (519 U.S. 408 (1997)). Thus, Officer Frye properly told Kennedy to step out of the car.

Kennedy’s protest over the frisk was equally without merit. When Officer Frye asked Kennedy whether he minded allowing Officer Frye to check him for weapons, Kennedy did not protest. Rather, he raised his arms in a gesture that indicated consent. The court noted that Kennedy willingly lifted his arms to facilitate Officer Frye’s frisk.

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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