As previously discussed, the Fourth Circuit has dealt more than a few defeats to federal prosecutors this year on suppression motions arising out of Terry stops and Terry frisks. The unpublished opinions by a split panel in United States v. Braxton reveal that the Terry terrain continues to require careful navigation.
Judge Wilkinson wrote the majority opinion, in which Judge Floyd joined, affirming the district court’s denial of a suppression motion. Although the district court did not invoke the correct formula, the panel majority concluded that the facts revealed by the record justified the district court’s decision:
Here, the officers confronted a dangerous situation presenting numerous indicia of criminal activity. They were outnumbered by the passengers in a vehicle bearing bad tags traveling through a dangerous area with darkly tinted windows. While “[w]e do not exclude the possibility that in some circumstances a patdown is not required[,]. . . we hesitate before criticizing [Officer Williams’s] choice of the means to protect himself in emergent circumstances on the street from the relative calm and safety of chambers.” United States v. Casado, 303 F.3d 440, 448-49 (2d Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).
Proper adherence to the standards of Terry does not require us to gamble with the lives of police officers who exercise reasonable judgment in fulfilling their duty in the trying situation presented by a roadside car stop. The Supreme Court has long noted that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Michigan v. Long, 463 U.S. 1032, 1047 (1983) (citing Mimms, 434 U.S. 106). Officer Williams executed a minimally intrusive frisk, justified at the time by a reasonable suspicion that he and his fellow officers were in a situation that could escalate and place both the officers and the occupants of the car at risk. Where the totality of circumstances supports a reasonable suspicion that Braxton was “armed and dangerous,” the absence of those three talismanic words, while error, is not fatal to the district court’s ruling in this case.
Judge Wynn dissented, objecting that “under the majority’s holding, any passenger in a vehicle with bad license tags could be subjected to a patdown search, even absent a finding of reasonable suspicion that particular is armed and dangerous, if the vehicle is stopped in a high-crime area.” According to Judge Wynn, this contradicts the rule that “an officer must have justification for a frisk or a ‘pat down’ beyond the mere justification for the traffic stop.”
Judge Wynn’s dissent criticizes the majority for making factual findings on a cold appellate record, exceeding the limited role of an appellate court. According to Judge Wynn, this led to at least one apparent factual error:
I can find no support in the record for the majority opinion’s statement that, “Braxton then elbowed Officer Williams in an attempt to escape, but he was subdued after a struggle with Officer Williams and another assisting officer.” Ante p. 3. The transcript shows that Officer Williams recalled that Defendant “attempted to elbow me to get me off of him.” Transcript, at 56. Nothing in the record indicates that Officer Williams stated that Defendant made “an attempt to escape.”
To the contrary, Officer Williams testified under crossexamination that the police report was incorrect if it reflected that Defendant “attempted to push [Officer Williams] back and run” and that in fact Defendant complied with Officer Williams’s request to get out of the vehicle and put his hands up, allowing Officer Williams to pat him down. Transcript, at 61. He further agreed that “any insinuation in the police report” that Defendant did not comply was incorrect. Id. at 62.