Divided Court Upholds Search of Passenger in Traffic Stop

U.S. v. Garcia, -- F.3d --, 2014 WL 1876264 (5/12/14) - Denial of suppression motion affirmed. Client was a passenger in a car pulled over for a cracked windshield; the driver turned out to have a suspended license. As an intrepid protector of public safety, the officer realized the vehicle could not be safely driven and must be towed. Roswell Police Department regulations required him to inventory the car's contents before towing. By 2-1, with a dissent by Judge Ebel, the court says there was reasonable suspicion justifying the pat-down of Mr. Garcia for weapons--resulting in discovery of ammunition--because: (1) he had exhibited combative behavior during a prior encounter with the officer and had to be tased then; (2) the officer knew of Mr. Garcia's violent criminal history that included an armed robbery; (3) the officer was by himself at the time of the stop, which was at night on a lightly traveled road; and (4) Mr. Garcia acted nervous and put on his jacket when getting out of the car, in which he could have secreted a weapon.

Judge Ebel writes a nice dissent, noting that Supreme Court precedent requires reasonable suspicion that the suspect was both armed and dangerous and while the officer had reasonable suspicion that Mr. Garcia was dangerous, there was not reasonable suspicion he was armed. The judge points to the facts that Mr. Garcia was unarmed during the prior encounter and the occurrence of the stop in a light-traffic area around 7:45 p.m., which does not make the driver more likely to possess a weapon than an average citizen.