7th Circuit: Officer allowed to resume frisk

Back to TopE-mailPrintBookmark and Share

As one 7th Circuit Court of Appeals judge cautioned, it’s generally not a good idea to ride around in a car with cocaine on you when police have many reasons why they may legitimately stop the car.

The warning came from Judge Diane Wood in United States of America v. Jermarcus Robinson, No. 09-3955, in which Jermarcus Robinson appealed his conviction of possession with intent to distribute. The federal appellate court affirmed.

Fort Wayne Police Officer Shane Pulver pulled over the car Robinson was riding in because the officer recognized driver David Robinson as a habitual traffic offender who didn’t have a license. Within seven minutes of the initial stop, Pulver saw a pocket knife in Jermarcus Robinson’s pocket, began a pat-down of Robison as his sister and girlfriend drove up, a second officer responded, Pulver stopped his pat-down to search the car and found a digital scale, then resumed the pat-down and found the hard object he felt earlier near Robinson’s backside. The object was a bag of 54 grams of crack cocaine.

Robinson lost his motion to suppress the evidence and entered into a conditional plea agreement.

He argued that the events that occurred in the seven minutes of the stop and search should be divided into three distinct stages and that he should have been let go after stage one – when police first frisked him and then stopped. He claimed stage two – the search of the car – wasn’t authorized by Arizona v. Gant, 129 S.Ct. 1710 (2009), because he wasn’t arrested until after the car was searched so the search wasn’t incident of the arrest. He claimed stage three was when Pulver searched him again and found the cocaine.

“If these events had dragged out over a longer period, then Robinson’s account might be more persuasive,” wrote Judge Wood. “Similarly, we might be more inclined to see things his way if Velma and Sunny had not been hovering just steps away and becoming increasingly agitated. But they were there, and this was a rapidly evolving situation.”

When Pulver stopped his pat-down and went to the car, another officer was there to watch Robinson. Pulver handed off responsibility for Robinson to his partner, not because he had finished his frisk and Robinson was free to go. Robinson also originally tightened up when first frisked to prevent Pulver from finding the drugs. Pulver felt a hard object, believed it wasn’t a weapon, and went to secure the car before finishing the pat-down.

The judges looked at the incident as a single event, not different stages. They also ruled it wasn’t necessary to rely on the fact that Pulver saw the scale in the car to justify resuming his search of Robinson.  

“Finally, just because he indicated after the fact that his initial impression was that the hard object he felt for an instant during the first phase was not a weapon, objectively speaking something hard might have been harmful, and Pulver was entitled to assure himself that his first impression was correct,” wrote Judge Wood.


Sponsored by
Subscribe to Indiana Lawyer
  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.