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Samuel II
Samuel II, Attorney at Law
Category: Criminal Law
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Experience:  Handle criminal matters in both state and federal courts.
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A vehicle is pulled over by LE for a minor traffic violation,

Customer Question

A vehicle is pulled over by LE for a minor traffic violation, but is not ticketed and free to go. Another officer asks the passenger, who is wearing his seat belt, for identification. The passenger politely declines. The officer does not feel threatened by the passenger, but demands that the passenger identify himself. Again, the passenger declines. Now the officer commands the passenger out of the vehicle. The passenger complies. Passenger is handcuffed and his person thoroughly searched (more than a simple frisk). The officer discovers a package of methamphetamine and a pipe. The passenger is then placed into the back of a police car. The officer then removes the passenger's ID from wallet and radios in the identification. As it turns out the passenger has an arrest warrant. He is also charged for possession. Shouldn't the methamphetamine and pipe evidence be suppressed due to the officer performing an illegal search of the passenger. The passenger was not obligated to ID himself.
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Samuel II replied 5 years ago.

hi

 

the passenger was legally required to present the requested ID, as the US States Supreme Court has ruled that once a car is legitimately stopped the police essentially "seize" everyone in the vehicle for the duration of the stop.

 

once the passenger denied the request and was handcuffed is where the determination as to whether the "search" was constitutional and therefore whether the evidence is admissible. the court has also ruled, as you note, that a frisk is appropriate for their own safety. in this matter, you state "thoroughly" meaning hands in pockets??

 

if the officer felt something during the frisk that they felt could have been a weapon, then they could have taken the next step beyond the frisk and into the pocket.

 

however, it is something that a local defense lawyer should be consulted on - because there are some lines that need to be drawn - if the pat down was not directly related to the stop at hand - but instead just a suspicion that something else was taking place then the evidence being admissible is questionable. and that is what needs to be determined. even though the passenger was asked to get out of the car because he did not comply with request - was that directly related to the stop at hand or did the officer say anything that would have indicated the handcuffs and search was due to another reason.

 

here is a link to a very recent case Arizona v Johnson that might be of some use to you

 

 

Customer: replied 5 years ago.
Sir,

I am not sure I agree with your conclusion.


The is how I understand the following rulings:

In Arizona vs. Johnson, the ruling states that during a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search (not an "exploration of pockets" search that was performed on the person in my question) a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but has no reasonable grounds to believe the passenger is committing or has committed, a criminal offense.

In Hiibel vs Sixth Jud. Dist., an officer may not arrest a subject for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop.

Arizona Revised Statutes 13-2412: It is unlawful for a person...to fail to refuse to state person's true name on request of a police officer who has lawfully detained based on reasonable suspicion the person has committed, is committing, or is about to commit a crime.

Brendin simply states that the passenger is seized during the course of a traffic stop, and is not free to go. This doesn't mean that the passenger subject to the driver's unlawfulness that precipitated the stop in the first place.

If I am correct in the above assessments, I don't see how the passenger in my question could have been legally searched by the police officer. Thus the evidence would surely need to be repressed.
Expert:  Samuel II replied 5 years ago.

hi

 

i think i summed up everything you are now stating in my last paragraph wherein i pointed out that there are certain circumstances that would have precluded the pocket search.

 

 

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