Frisks of Vehicles: Subjective vs. Objective Belief that a Vehicle Contains a Firearm
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.
Comments
Since this would seem to be a Officer safety type search, and by good practice you don’t search cars with people in them, would the officer safety element dissipate once you removed the person(s) from the vehicle for the search?
Only when the subject has been arrested and secured in a patrol car. In that case, the "incident to arrest" rules under Arizona v. Gant (2009) 556 U.S. 332, kick in. In that case, you can do a warrantless search of the car only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Or, under the alternate theory of Gant, when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the car,” then a warrantless search of the car is lawful. (Arizona v. Gant, supra, at pp. 343-344; Davis v. United States (2011) 564 U.S. 229, 234-235 [131 S.Ct. 2419; 180 L.Ed.2nd 285]; People v. Johnson (2018) 21 Cal.App.5th 1026, 1033-1034.) If the subject had been arrested for shooting from that vehicle, then Gant's alternate theory would allow for a warrantless search of that vehicle despite the suspect being arrested and secured in a patrol car. Another argument is that when the subject is stopped for shooting from the vehicle, assuming there is a "fair probability" (i.e., probable cause) to believe you have the right car, then you can do a warrantless probable cause search of the car for the gun.: General Rule: If police officers have probable cause to search a car, they may make a warrantless search anywhere a warrant could have authorized. (Carroll v. United States (1925) 267 U.S. 132, 150-153 [45 S.Ct. 280; 69 L.Ed. 543]; United States v. Ross (1982) 456 US. 798 [102 S.Ct. 2157; 72 L.Ed.2nd 572]; Pennsylvania v. Labron (1996) 518 U.S. 938 [116 S.Ct. 2485; 135 L.Ed.2nd 89]; Maryland v. Dyson (1999) 527 U.S. 465 [119 S.Ct. 2013; 144 L.Ed.2nd 442]; People v. Superior Court [Nasmeh] (2007) 151 Cal.App.4th 85, 100-102; United States v. Davis (9th Cir. 2008) 530 F.3rd 1069, 1084; United States v. Noster (9th Cir. 2009) 590 F.3rd 624, 633-634; People v. Xinos (2011) 192 Cal.App.4th 637, 653-659; People v. Diaz (2013) 213 Cal.App.4th 743, 753-754, search of a vehicle’s “black box,” or “Sensing Diagnostic Module,” or “SMD;” Collins v. Virginia (May 29, 2018) __ U.S. __, __ [138 S.Ct. 1663; 201 L.Ed.2nd 9]; United States v. Cervantes (9th Cir. 2012) 703 F.3rd 1135, 1148-1140; People v. Johnson (2018) 21 Cal.App.5th 1026, 1034-1035; and see Florida v. Harris (2013) 568 U.S. 237, 243-250 [133 S.Ct. 1050; 185 L.Ed.2nd 61], a warrantless search of a vehicle based upon a drug-detection dog’s sniff; People v. Waxler (2014) 224 Cal.App.4th 712, 718-719, a warrantless search of a vehicle based upon the odor of marijuana and observation of a pipe with apparent marijuana residue; People v. Moore (2021) 64 Cal.App.5th 291, search of a backpack found in a car based upon the odor of marijuana.)