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Third frisk of underwear finally revealed the gun

The court rules that evidence discovered in a third pat-down search over the course of a traffic stop is admissible

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Reasonable suspicion supported the final pat-down

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This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

UNITED STATES V. SMITH, 2022 WL 1195030 (7th Cir. 2022)

Chicago police officers pulled a driver over for running a red light. Officer Vasquez approached the driver’s side of the car, while Officer Holden approached Leamon Smith, who was sitting in the front passenger seat. As Smith gave his driver’s license to Officer Holden, the officer commented that Smith was “shaking like a leaf.” Officer Holden asked Smith to step outside and directed him to the back of the car.

Smith got out, did a side-step shuffle and immediately pushed his groin against the car. Officer Holden asked Smith to take a half-step away from the car, then frisked Smith’s waistband, front pockets, and lower leg – but not his groin. Officer Holden placed Smith in handcuffs, explained he was simply being detained and performed a second pat-down by jiggling Smith’s pant legs. Nothing fell out.

Officer Holden asked Smith to walk, observing that he walked with an exaggerated limp, and then frisked Smith’s groin area, plucking a loaded handgun from Smith’s underwear. About 11 minutes elapsed between the initiation of the stop and the discovery of the gun.

Smith was charged as a felon in possession of a firearm. The trial court denied Smith’s motion to suppress the gun and Smith appealed.

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 (Arizona v. Johnson, 555 U.S. 323 (2009)). There is only one lawful purpose for 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.

The appellate court upheld all three frisks. Smith acknowledged the traffic stop itself was lawful and that Officer Holden had reasonable suspicion to conduct the first frisk. The second frisk was reasonable because Officer Holden had seen Smith walk in a side-to-side shuffle twice, repeatedly press his pelvis against the car and continue to appear unusually nervous. Smith challenged the second frisk noting Officer Holden offered to uncuff one of Smith’s hands so he could retrieve whatever was in his pants. Smith argued, and most would agree, that an officer would be unlikely to allow a suspect a free hand to dive into his groin if he were hiding a weapon. But what mattered to the court was not what Officer Holden thought at that moment, but what a reasonable officer would conclude: “An officer in those circumstances could reasonably infer that Smith was hiding a weapon in his pants.”

Before the third frisk, Officer Holden asked if Smith was injured because he had an exaggerated limp. Smith explained he had been in a car accident. Smith claimed Officer Holden should have just accepted his explanation. The court disagreed. “In light of the totality of the circumstances – a nighttime traffic stop of an individual who appeared very nervous, walked strangely, and repeatedly rested his pelvis against cars as if to prop something up – we conclude that reasonable suspicion supported the final pat-down.”

Maybe Smith should have invested in some Thunderwear.

NEXT: Vehicle frisk suppression reversed, creating new rule for frisks

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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