CopLaw Update

June 2007


Training is the 13th Juror™

United States v. McCargo, 464 F.3d 192 (2d Cir. 09/13/2006)

"Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. . . .

We are not holding that the police are entitled to pat down a person, absent reasonable suspicion that he is armed, simply because they have stopped that person pursuant to a lawful Terry stop. However, in cases where the police may lawfully transport a suspect to the scene of the crime in the rear of a police car, the police may carry out a departmental policy, imposed for reasons of officer safety, by patting down that person. Because the police must have  a legitimate law-enforcement reason to transport a suspect, we see little danger that policies such as these might be used as a pretext for a suspicionless frisk.

"McCargo" was stopped by the Buffalo Police on July 28, 2003, blocks from a reported attempted burglary. The officers decided to take McCargo back to the scene of the alleged crime to see if the victim could identify him. Because the officers planned to transport him in the back of their
patrol car, they frisked him for weapons in accordance with a departmental  policy. During the frisk, the officers discovered a handgun. McCargo was arrested and later charged in federal court with possession of a firearm by a convicted felon. See 18 U.S.C. '' 922(g)(1), 924(a)(2).

White testified that it was departmental policy to pat down all persons before placing them in the back of a police car to protect the officers' safety.

This case requires us to deal with three Fourth Amendment questions: (1) whether the initial stop and brief detention of McCargo by the police was constitutional under Terry; (2) whether the police were entitled, as part of the Terry stop, to transport McCargo to the scene of the crime to see if an identification could be made by the victim; and (3) whether the police were entitled to pat down McCargo before transporting him to the crime scene in a police car. We review de novo each of these legal questions. Ornelas v. United States, 517 U.S. 690, 699 (1996); accord United States v. Singh, 415 F.3d 288, 293 (2d Cir. 2005); see United States v. Moran Vargas, 376 F.3d 112, 114 (2d Cir. 2004). For the weapon to be admissible against McCargo, each question must be answered in the affirmative.

Terry requires that a police officer have only "reasonable suspicion," United States v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994), that "criminal activity may be afoot" to justify  an investigatory stop, Terry, 392 U.S. at 30. Reasonable suspicion requires considerably less of a showing than probable cause.United States v. Arvizu, 534 U.S. 266, 273 (2002)

United States v. Cortez, 449 U.S. 411, 418 (1981) ("[T]he assessment must be based upon all the circumstances . . . . and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.")

The scope of a Terry stop must therefore be reasonable, but the methods police used need not be the least intrusive available. "The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it." United States v. Sharpe, 470 U.S. 675, 686-87 (1985); see United States v. Martinez-Fuerte,
428 U.S. 543, 557 n.12 (1976) (rejecting least-restrictive-means analysis).

Therefore, where the police have a reasonable suspicion that a person was involved in a crime, they do not violate the Fourth Amendment rights of a suspect if they stop the suspect and transport him a short distance to the scene of the crime in furtherance of a legitimate law-enforcement purpose. We also believe that the police may reasonably choose to transport the suspect in a police car where, as here, that decision would shorten the length of the Fourth Amendment intrusion.

The pat-down of McCargo did not violate his Fourth Amendment rights. In Terry, the Court held that police may frisk a person if they have a reasonable belief that the person is armed and dangerous.

Paramount in the Court's reasoning was that the Fourth Amendment should not require the police to investigate crime with their safety unduly at risk. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. . . . We cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest." Id. at 23-24. Weighing this important interest in police and public safety against the "brief, though far from inconsiderable," intrusion on an individual's privacy, id. at 26, the Court concluded that a frisk for weapons was permissible.

A interest in officer safety has been the justification for Terry stops from their inception. Our examination of Terry's progeny reaffirms this conclusion. See, e.g., Michigan v. Long, 463 U.S. 1032, 1049 (1983) ("[P]rotection of the police and others can justify protective searches
when police have a reasonable belief that the suspect poses a danger . . . .); Ybarra v. Illinois, 444 U.S. 85, 93 (1979) ("[A] law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons . . . ."); Mimms, 434 U.S. at 110 ("We think it too plain for
argument that the State's proffered justification -- the safety of the officer -- is both legitimate and weighty."). The lesson we take from these cases is that the strictures of the Fourth Amendment must not be so burdensome as to impose unreasonable and avoidable risks on police officers during their investigations.

In the typical Terry stop, we have no doubt that the powers the police possess over the suspect, including the power to order the suspect to move to a more convenient or safer location, see Place, 462 U.S. at 706; Mimms, 434 U.S. at 110-11, adequately protect the important state interest in the safety of police officers and others. There are important differences, however, between the typical Terry stop where the suspect is detained on the street and this case where the suspect is to be
transported in the back of a patrol car. In the typical case on the street, the officers have the ability to terminate the stop or arrest the suspect at any moment and to control the location of the stop to minimize the danger the suspect poses to the police and others.

The transportation of the suspect in the back of a police car as part of the Terry stop is markedly different. The officers are less able to protect themselves from the possibility of violence. The officers cannot depart or remove themselves temporarily from the situation and call
in additional officers as backup. The suspect and the officers are in close proximity to each other for the duration of the transportation; the suspect sits behind them, a few feet away in the rear of the car, frequently separated by only a wire grate. And the suspect is not subject to the officers' immediate physical control or restraint: if the suspectturns out to be armed, the police are at his mercy.

In sum, we think the dangers posed to police officers in situations where a suspect, who may be armed, is placed in the rear of a police car are substantially different and greater than those posed in the typical Terry stop. The increased threat to police safety informs the balance to be struck between the safety interests of the police and the privacy interests of individuals. See Camara v. Mun. Ct., 387 U.S. 523, 534-35 (1967); see also Terry, 392 U.S. at 9 ("Of course, the specific
content and incidents of [Fourth Amendment rights] must be shaped by the context in which [they are] asserted. For 'what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.'" (quoting Elkins v. United States, 364 U.S. 206, 222 (1960))).

Permitting a limited frisk for weapons before placing a suspect in a police car, pursuant to an established policy, reflects an appropriate balancing of the interests at stake. Because the suspect is placed in the rear of the car - a location where, were he armed, he would expose the
officers to peril - we think the most reasonable, and least intrusive, solution is to permit a pat-down for weapons. The possibility of danger to the officers can be eliminated simply by ensuring that the suspect does not have a weapon that can be used against them.

The justification for the pat-down is not that the suspect is reasonably suspected of being armed; it is rather a matter of sound police administration: police officers should be certain before transporting
members of the public, whom they do not know, that none of them is armed. The administrative nature of the search is evidenced by the existence of the Buffalo Police's department-wide policy that requires the pat-down whenever a person is transported in a police car. The fact that the policy
is administrative and universally applied to all who are transported eliminates any selective-use concern. See Brown, 443 U.S. at 51.

Arrested persons have also been known to injure themselves -- or others -- with belts, knives, drugs or other dangerous items on their person while being detained. Dangerous instrumentalities -- such as razor blades, bombs, or weapons -- can be concealed in innocent-looking articles
taken from the arrestee's possession. The bare recital of these mundane realties justifies reasonable measures by police to limit these risks . . Illinois v. Lafayette, 462 U.S. 640, 646 (1983)


The reader is encouraged to review their agency's policy on Terry Stop transportation of suspects in light of this 2nd circuit court of appeals case precedent.


Reginald F. Allard, Jr.


13thjuror Law Disc

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