Frisks of Vehicles: Subjective vs. Objective Belief that a Vehicle Contains a Firearm
By Robert Phillips, Deputy District Attorney (Ret.)
We don’t get many vehicle “frisk” cases, so I thought this one out of the federal First Circuit Court of Appeal (United States v. Guerrero (1st Cir. RI Dec. 6, 2021) __ F.4th __ [2021 U.S. App. LEXIS 35883].) might be of interest to you. In Guerrero, Rhode Island officers responding to a “shots fired” call chased, and eventually stopped, a motor vehicle speeding from the area and driven by defendant. A search of the vehicle looking for a gun resulted in the recovery of ammunition only. In Michigan v. Long (1983) 463 U.S. 1032 [103 S.Ct. 3469; 77 L.Ed.2nd 1201], the U.S. Supreme Court held that when law enforcement officers conduct investigative detentions, or Terry stops (Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868; 20 L.Ed.2nd 889].), involving automobiles, they may conduct a warrantless “car frisk” of the areas within the suspect’s “grab space,” so long as they have a reasonable suspicion that a suspect could immediately access a weapon. Based upon this rule, defendant was charged in federal court with being a felon in the illegal possession of ammunition.
The trial court, however, granted defendant’s motion to suppress, noting that the law of the Circuit dictated that the officers must have both an “objective belief” that a vehicle contains a firearm, as well as an “actual fear,” or “subjective belief,” in order to conduct a “frisk” of that vehicle (See United States v. Lott (1st Cir. 1989) 870 F.2nd 778.); sometimes also referred to as a “patdown,” or “protective search” of a vehicle. Finding an objective belief only, the trial court suppressed the ammunition.
On appeal, the First Circuit Court of Appeal reversed, ruling that despite its prior decision in Lott, subsequent U.S. Supreme Court decisions (E.g., Whren v. United States (1996) 517 U.S. 806 [116 S.Ct. 1769; 135 L.Ed.2nd 89].) indicate that an officer’s subjective belief is irrelevant in such a case, and that other circuits (the 5th, 8th, and D.C.) have so held. The Court here, as a result, specifically rejected the relevance of an officer’s subjective fear when reviewing the reasonableness of a car frisk under Long. The Court therefore reversed the district court’s ruling that had granted defendant’s motion to suppress the evidence seized from the vehicle.
If interested, I have other California and Ninth Circuit cases I can send you that deal with protective searches of a vehicle based upon no more than a reasonable suspicion.
