Monday, May 19, 2014

Tenth Circuit US v. Garcia 13-2155

Decision here.

   Garcia was a passenger in a car that Ofc. Devos was towing.  He was towing because the windshield was too badly cracked for it to be safely driven (hence the traffic stop in the first place), and the driver was under arrest for driving on a suspended license (and for giving Devos a fake name, although the name he gave also came back to a suspended license).

   Garcia and Devos knew each other.  Devos knew that Garcia was a drug user with a conviction for armed robbery.  Two weeks ago, Devos had chased Garcia down an alley on foot while trying to arrest him for a warrant.  At the end of that chase, Garcia had turned to confront Devos with his fists up, and Devos had tased Garcia.

   The current traffic stop was taking place during the night on a road in the middle of nowhere, and there was no other officer available to assist Devos.  In light of all of the above, he decided to search Garcia before turning his back on him for the inventory.  During the search, he found a handgun magazine.  He handcuffed Garcia, had him sit on the curb, and then released him after the inventory.  Later, he arrested him for being a felon in possession of a weapon (based on the magazine).

   Garcia moved to suppress, arguing that the pat down was unjustified.  The Tenth Circuit held that under the totality of the circumstances, Devos had reason to believe that Garcia was dangerous and that he had the ability (based on his criminal history) to procure a weapons.  So the search was upheld.

   There's a dissenting opinion that would have suppressed the search, holding that Devos knew Garcia was dangerous but didn't have reason to believe that he was armed.  The majority opinion criticizes the dissent for isolating the
"armed" and "dangerous" prongs of the test from each other, and for ignoring the effect that one prong can have on the other (meaning that an officer's knowledge that someone is dangerous may suggest to them that that person is armed, or vice versa).  

   From a law enforcement perspective, it's obvious that Devos did the right thing.  I'm not interested in turning my back on someone who tried to fight me a couple weeks ago without first searching and cuffing him, either.  But the fact that this opinion had a dissent does show the importance of being able to properly explain our actions, and also shows that even something as entrenched as a Terry search could get screwed up tomorrow.

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