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7th Circuit: Officer allowed to resume frisk

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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.
 

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