Question: May a peace officer perform a protective sweep in the passenger compartment of a suspect’s car when the suspect is removed from the car for a non-arresting offense?
Quick answer: Yes, if the officer has reasonable suspicion that the suspect is dangerous and would gain immediate control of a weapon upon returning to the vehicle.
Facts: While responding to a dispatch call, police officers watched defendant Derek Broughton fail to stop at a red light before turning right at an intersection. Then as Broughton turned the corner, he nearly collided with another vehicle. The officers activated the cruiser’s lights and siren and began following Broughton. He drove several blocks before pulling over onto a side street. As Broughton slowed to a stop, one of the officers observed him lean all the way over to the passenger side of the car. The officer thought that, based on her experience, Broughton’s movement suggested that he was reaching for something, hiding something, or putting something away, such as a weapon or drugs.
Once Broughton stopped his car, the officer looked inside with her flashlight and saw no evidence of a weapon or drugs. The other officer ordered Broughton out of the car and conducted a brief pat-down for weapons; none were found. Broughton seemed overly nervous during the interaction. He also didn’t have a license on him, so one officer placed him in the back of the police cruiser while she tried to figure out his identity. In the meantime, the other officer performed a “protective sweep” of Broughton’s car and found a loaded .22 caliber handgun wrapped in a bandanna inside the glove compartment. He was charged with carrying a concealed weapon and improper handling of a firearm. He moved to suppress the evidence based on the warrantless search of his car.
Why this case is important: In a “close call,” the court held that the search of the passenger compartment of Broughton’s car was constitutional. Performing a warrantless protective sweep of a vehicle is permissible if the sweep is limited to areas where a weapon may be placed or hidden. To conduct a sweep, an officer must have a reasonable belief, based on specific and articulable facts, that the suspect is dangerous and may gain immediate control of weapons. In reviewing the totality of the circumstances, courts generally consider factors such as the time of day, the experience of the officers involved, and suspicious activities by the defendant, both before and during the stop, including furtive gestures.
Here, the officers were justified in performing the sweep because Broughton didn’t immediately pull over his car; he didn’t immediately comply with the officers’ demands to turn off his engine; he seemed overly nervous for the traffic stop; and one officer saw him make a furtive movement over to the passenger side of the car. For these reasons, the officers had at least reasonable suspicion to conduct a pat-down for weapons. Plus, because there was no reason to further detain or arrest Broughton, the fact that he would have been able to access any weapon when he returned to his car allowed the officers to extend the Terry pat-down to the inside of Broughton’s vehicle.
Keep in mind: You can extend a Terry pat-down to a suspect’s vehicle, but only if you have reasonable suspicion that the suspect is dangerous and may have access to a weapon. And you can’t do a “protective sweep” of the car if you’ve arrested the suspect because then he wouldn’t have immediate access to a weapon, which is the basis for allowing a Terry frisk of a car. Note: You also might not be able to justify a search of the car under the search incident to arrest warrant exception if the suspect is secured in your custody and no longer within immediate control of the inside of his vehicle, under the U.S. Supreme Court’s Arizona v. Gant case.
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