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Suspect Has Criminal Record: Reasonable Suspicion for a Pat-Down?

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By Robyn Hagan Cain on July 19, 2012 4:11 PM

A criminal record of violence coupled with questionable driving can transform a run-of-the-mill traffic into an excuse for a full-body pat-down.

But are the fruits of said search admissible in court?

Last week, the Eighth Circuit Court of Appeals ruled that can be, depending on the totality of the circumstances.

Minneapolis Police Officer George Judkins followed a Ford Explorer after the driver made an illegal U-turn, backed into a snow bank, and temporarily blocked an intersection. The driver pulled over without signaling, (and without instruction from Judkins), and a female passenger exited the vehicle, walked down the street, and began knocking on a door. It all seemed suspicious to Judkins, who by that time had run the plates on the car and determined that the car was registered to a car lot, not an individual.

Judkins stopped behind the Explorer, turned on his squad car lights, and approached the driver. While speaking with the nervous-looking occupants of the car -- none of whom could produce a valid driver's license -- he realized that he recognized one of the passengers: Anthony Preston.

Though Judkins confirmed during the stop that there were no outstanding warrants for Preston, he knew that Preston "had a history of domestic violence calls and violence calls and some gun cases" in the precinct.

Judkins had to impound the vehicle, and asked the occupants of the car to get out so the officers could search the vehicle, as required by police policy. During a pat-down search, one of the officers discovered a loaded revolver in Preston's jacket. Preston, who was already on probation for a domestic assault charge, was charged with being a felon in possession of a firearm.

Preston challenged the pat-down that produced the gun, and won in the district court. The government appealed, and the Eighth Circuit Court of Appeals reversed and remanded the case.

Preston argued that a criminal record, standing alone, is not sufficient to create reasonable suspicion to support a search or seizure, so the pat-down was improper. The Eighth Circuit, however, found that the facts in this case, viewed objectively and collectively, created objectively reasonable suspicion to justify a pat-down of Preston.

Here, the situation arose out of a nighttime traffic stop, the driver of the vehicle did not have a license, and the vehicle was registered to a car lot. The combined factors contributed to Judkins' suspicion that criminal activity was afoot and might present a threat to officer safety. His concerns were compounded when he learned Preston's identity, because he knew that Preston had been involved in prior cases in the second precinct involving domestic violence and guns.

Because the totality of the circumstances created an objectively reasonable suspicion that Preston might be armed and dangerous, the pat-down search was constitutionally permissible and the gun was admissible.

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