The 2nd District Court of Appeals recently ruled on a case involving a “pat-down” search. Police officers often conduct pat-down searches (also known as “frisking”) for officer safety. While officer safety should be paramount, this does not mean that law enforcement can simply conduct a pat-down search whenever they wish. However, police officers often do them after pulling a motorist over and asking them to step out of their vehicle.
The case, State v. Reece, revolved around a protective search (i.e., pat-down) of an individual after the police responded to an area where a child was shot. Reece was sitting in his vehicle when the officers approached him. Reece complied with their order to place his hands up and provide identification. The officers concluded that Reece was not the suspect they were looking for.
However, when Reece reached for his wallet, he used his other hand to cover his waist area. The officers felt this was suspicious. The officers then had Reece exit his vehicle and, upon conducting a pat-down search, found a firearm in his waistband. Reece was arrested and indicted on Carrying a Concealed Weapon, a 4th degree felony, and Weapons Under Disability, a 3rd degree felony.
Reece’s attorney filed a motion to suppress, arguing that the officers did not have a reasonable, articulable belief that Reece was armed and dangerous to justify a pat-down search. The trial court sustained the motion and the prosecutor appealed the trial court’s decision.
The Police Must Have Reasonable Suspicion to Conduct a Pat-Down Search
In order to conduct a pat-down search of an individual, law enforcement must have a reasonable individualized suspicion that the person is armed and dangerous. Terry v. Ohio. While the officer does not need to be absolutely certain that the person is armed, the issue is whether a reasonably prudent person in the circumstances would be warranted in having that belief. The existence of reasonable suspicion is determined by evaluating the totality of the circumstances. State v. Andrews.
In considering the totality of the circumstances, the police are permitted to consider the fact that the area is a high-crime area, but that factor alone is insufficient to justify a pat-down search. State v. Wilcox. Moreover, furtive movements, defined as a situation where the police see a person in possession of a highly suspicious object or unidentified object that the circumstances suggest is contraband, can be considered, but are also insufficient alone to justify a pat-down search. State v. Allen; State v. Abner.
The Court of Appeals deferred to the trial court’s finding that Reece did not make a furtive movement. Thus, the only factor giving rise to reasonable suspicion was that Reece was located in a high-crime area. This alone was not sufficient to justify the pat-down search of Reece and the Court of Appeals affirmed the trial court’s ruling.
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