Vehicle Frisk Suppression Reversed, Creating New Rule for Frisks

by | December 23, 2021

United States v. Guerrero, 2021 WL 5768640 (1st Cir. 2021)

The Supreme Court established a rule governing “vehicle frisks” nearly 40 years ago in Michigan v. Long (463 U.S. 1032 (1983)). A vehicle may be given a quick, cursory inspection for weapons, also known as a vehicle frisk, when there is reasonable suspicion that weapons are inside the vehicle. In subsequent years, the Supreme Court has held to the principle that the analysis of reasonable suspicion of weapons in the vehicle is an objective analysis. In Whren v. United States (517 U.S. 806 (1996)), the Court held that an officer’s subjective intentions have “no role in ordinary, probable-cause Fourth Amendment analysis.”

Even after the Supreme Court decision in Whren, the 1st Circuit Court of Appeals followed its own rule established in United States v. Lott (870 F.2d 778 (1st Cir. 1989)), which pre-dated Whren. In United States v. Lott, the 1st Circuit held an officer must have both subjective and objective safety concerns. Even if there are objective signs a suspect might be armed and dangerous, unless the officer is subjectively afraid, there can be no protective frisk to dispel the officer’s safety concerns.

In this case, the 1st Circuit acknowledged “the Supreme Court has issued opinion after opinion” holding Fourth Amendment analyses should be objective rather than subjective. Let’s see what that means for Juan Guerrero. We’ll also review the frisk rules from Terry v. Ohio and Michigan v. Long. Note: this case discusses a new rule for officers in the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island), and reinforces frisk rules already applicable to the rest of the nation.

Officers responding to a “shots fired” call saw a dark BMW sedan racing away. In two separate patrol cars, officers followed the BMW with lights and sirens activated. The BMW made several quick turns and eventually stopped. The officers approached the BMW with guns drawn and commanded the occupants to get out. The passenger, a minor, immediately complied. He was handcuffed and placed into a patrol car. The driver, later identified as Juan Guerrero, initially did not obey.

After repeated commands, Guerrero got out and got on the ground as ordered. Officers handcuffed him and searched the car. They found a loaded magazine in a backpack behind the driver’s seat but did not find a gun. The officers arrested Guerrero for eluding police. They released the minor passenger to his mother. Guerrero was subsequently indicted on federal charges for unlawful possession of ammunition by a felon. Guerrero moved to suppress the loaded magazine seized in the search.

The trial court granted Guerrero’s suppression motion. The judge agreed that the objective circumstances justified the vehicle frisk that revealed the ammunition in the magazine. The BMW was seen speeding away from a shots-fired call, Guerrero tried to elude the officers pursuing him, and he initially failed to obey reasonable commands to get out of the car and to get on the ground.

Notwithstanding the strong objective basis for the frisk, the judge ruled it was unlawful because the officers were not subjectively fearful. The judge noted the officers’ apparent lack of concern regarding the passenger. The judge also divined the level of fear in the officers’ minds by analyzing their “demeanor, as documented in the body camera footage.” To the judge, the officers did not appear to be concerned for their safety. Instead, he perceived they “demonstrated an eye towards investigation and prosecution, not officer safety.” The judge stated he did “not credit the officers’ testimony” that they were subjectively fearful for their safety.

The law in the 1st Circuit required both an objective safety concern and subjective safety worry by the involved officers. The prosecution appealed, asking the 1st Circuit Court to carefully consider a host of Supreme Court decisions, inviting the appellate court to follow the direction of the Supreme Court. We’ll look at the Supreme Court cases in turn.

The court stated that its rule “runs counter to the strong modern trend in the caselaw repeatedly rejecting a subjective approach.”

First, in Terry v. Ohio (392 U.S. 1 (1968)), the 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 (Arizona v. Johnson, 555 U.S. 323 (2009)). There is only one lawful purpose to a Terry frisk: to remove weapons that threaten the officer or others. A Terry frisk is not intended to search for drugs or other contraband.

Second, in Michigan v. Long, the Supreme Court applied the Terry doctrine to vehicles. The Court held that officers may—without a warrant—search “the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.”

Years later, in Arizona v. Gant (556 U.S. 332 (2009)), the Court limited the search incident to arrest exception applied to vehicles. The Court held that the exception “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” The Gant Court held officers may search a vehicle incident to an arrest only if the arrestee is unrestrained and “within reaching distance of the passenger compartment” at the time of the search or “it is reasonable to believe the vehicle contains evidence” of the crime for which the person is being arrested (see also Thornton v. United States, 541 U.S. 615 (2004)).

The Gant decision contained an exception of its own. The Gant Court limited its new restriction on a vehicle search incident to arrest “where no arrest is made.” Referring to Michigan v. Long, the late Justice Scalia wrote: “We have held that officers may search the car if they reasonably believe ‘the suspect is dangerous and may gain immediate control of weapons.’ In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.”

Finally, consider a pattern of Supreme Court references to objective analysis under the Fourth Amendment. Whren v. United States encouraged objective analysis in a traffic stop. Similarly, in Maryland v. Buie (494 U.S. 325 (1990)), the Supreme Court prescribed an objective analysis for considering protective sweeps during warrant execution. The Court held that officers executing a warrant may conduct a limited protective sweep of the premises to discover persons who might present a danger to the officers if there is an objectively reasonable belief the premises conceal such a person.

The Supreme Court continued its emphasis on objective analysis of the circumstances facing an officer in several more recent cases. In Nieves v. Bartlett (139 S. Ct. 1715 (2019)), the Court observed: “We have almost uniformly rejected invitations to probe subjective intent.” In Ashcroft v. al-Kidd (563 U.S. 731 (2011)), the majority opinion stated, “Fourth Amendment reasonableness is predominately an objective inquiry.” Finally, the current Supreme Court reaffirmed the preference for objective analysis earlier this year in Torres v. Madrid (141 S. Ct. 989 (2021)).

Confronted with a cascade of Supreme Court authority running counter to its own rule, the 1st Circuit reversed the trial court’s decision to suppress the ammunition evidence. The court stated that its rule “runs counter to the strong modern trend in the caselaw repeatedly rejecting a subjective approach.” For us, the court’s very lengthy opinion is a nice review of the frisk doctrine. For Guerrero, the court’s decision sends him back to square one, and this time the prosecution is armed with a full magazine to use against him in court.

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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