Responding to a domestic call, the officer met defendant at the door and he was compliant and holding a bag. There was no reason to believe that defendant was armed, but a stop and frisk was done, actually finding a gun. The stop and frisk was unreasonable. United States v. Smith, 2017 U.S. Dist. LEXIS 71248 (D. Nev. March 2, 2017), adopted, 2017 U.S. Dist. LEXIS 71725 (D. Nev. May 9, 2017)*:
First, Officer Kim’s testimony about seeing the handle of a gun protruding from Smith’s pocket is not credible. At the evidentiary hearing, Officer Kim testified that she could see the black handle of a gun protruding from Smith’s pocket. However, in her arrest report, written shortly after the incident, Officer Kim wrote “[t]he handgun was concealed inside his pocket in such a manner as not to be discernible by ordinary observation.” (ECF No. 18-1 at 3) This statement directly contradicts her testimony. It is unlikely that Officer Kim, approaching a poorly lit landing in the wee hours of the morning, would have been able to discern a black gun handle allegedly sticking out of Smith’s pocket.
Second, the victim had told the officer that it was unlikely Smith would have the gun on his person. This defused any concern of Smith being armed by virtue of a gun being inside the apartment. Third, Smith complied with Officer Kim’s instructions. He calmly answered the officer’s questions and removed his hand from his pocket at the officer’s direction.
Based on these circumstances, Officer Kim did not have facts sufficient to conclude that Smith was armed and dangerous. She encountered a calm, compliant man holding a bag, who she knew was unlikely to be armed. Indeed, Officer Kim acknowledged in her police report she only became aware of the handgun after she began the pat down. (Id.) Thus, Officer Kim lacked reasonable suspicion that Smith was armed and dangerous. The patdown violated Smith’s right to be free from unlawful searches.