E.D.Wis.: Protective weapons search has a different justification than a search incident

Officer’s reaching into a seat pocket in a Long protective weapons frisk was reasonable. These searches are not constrained like a Gant search incident to a search for evidence of the offense for which defendant was stopped. They are instead based on reasonable suspicion a weapon is present. United States v. Charleston, 2014 U.S. Dist. LEXIS 44620 (E.D. Wis. April 1, 2014).

The searches of defendant’s clothing and for a buccal swab for DNA was with consent. Defendant testified that he thought the consent form was for clothing alone, and he was told that he had to give the DNA swab or they’d get a search warrant. It was all by consent. [And there was probable cause, so a DNA warrant would have issued.] State v. Vansickle, 2014-Ohio-1324, 2014 Ohio App. LEXIS 1241 (12th Dist. March 31, 2014).*

Plaintiff’s case implied the invalidity of his conviction, so it is barred under Heck v. Humphrey. He filed the suit before conviction (so see Wallace v. Kato), but was finally convicted, and the case was dismissed on Heck grounds, and he appealed and lost. Jackson v. Baltimore City Police Dep’t, 2014 U.S. App. LEXIS 6004 (4th Cir. April 1, 2014).*