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Ducking and Hand-Hiding: Reasonable Suspicion for a Car Search?

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By Aditi Mukherji, JD on September 17, 2013 3:55 PM

Shedding some light on Terry stops, the Eighth Circuit Court of Appeals reversed a Nebraska district court's ruling that the Omaha police violated a drug dealer's constitutional rights when they searched his car after he ducked from their line of vision and took some time to raise his hands.

The legality of the car search boils down to "furtive gestures."

Omaha police were patrolling 24-hour stores in response to a string of robberies in the area when they spotted defendant Shawn Morgan's car at the far corner of a grocery parking lot. Police said the car's windows were tinted, but they could see the occupants "ducking down" to keep from being seen.

According to the officers, when they approached the car, Morgan reached under his seat and did not immediately raise his hands when ordered to do so.

Police handcuffed him and the other occupants and searched the car, finding a lockbox under Morgan's seat containing methamphetamine and cocaine.

But is suspicious ducking and prolonged hands-under-the-seat movement enough to create reasonable suspicion? The lower court didn't think so. At the district level, the court found officers exceeded the scope of what is allowed in a Terry stop, which requires "reasonable suspicion supported by articulable facts that criminal activity may be afoot."

But the appeals panel said there was nothing improper about the stop or the search.

Citing United States v. Martinez-Cortes, the court ruled, "Where occupants of vehicle don't promptly comply with police command to show their hands, and move their arms as if to hide something, these 'furtive actions' give officers reason to suspect that criminal activity is afoot, and that the occupants might be a risk to officer safety unless detained."

Since the search was deemed legal, the court also reversed the suppression of Morgan's statements to police in which the 36-year-old Fremont man confessed to being a drug dealer.

Because the totality of the circumstances created an objectively reasonable suspicion that criminal activity was afoot, the car search was constitutionally permissible and Morgan's incriminating statements were admissible.

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