ND: Search of “squishy” thing in def’s bra wasn’t a search for weapons

The search of defendant after a patdown which included something “squishy” in her bra was unreasonable because it could not be a search for weapons. State v. Broom, 2018 ND 135, 2018 N.D. LEXIS 143 (June 5, 2018):

[¶13] Under the totality of the circumstances, Officer Gallagher did not have reasonable and articulable suspicion that Broom was armed and dangerous after conducting the outside clothing pat-down, thus justifying a more intrusive search. The district court relied on the uncertainty of what Broom was concealing in her bra and her known criminal history to justify the inner garment search. This is not the standard.

[¶14] The search of Broom, conducted while Broom was handcuffed, and away from the vehicle, revealed a “soft” or “squishy” bulge in her bra. Nothing in the record supports it was of the size and density that might be a weapon justifying a more intrusive search. To justify a more intrusive search for weapons, uncertainty as to what the object may be is insufficient. The purpose of the more invasive search is to ensure officer safety and to determine whether the object is in fact a weapon. An officer is only entitled to continue a pat-down search to the inner garments where an object is located when a pat-down reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon. Additionally, there was no testimony that Broom resisted the pat-down or engaged in any threatening behavior justifying a more intrusive search.

[¶15] Because Broom’s rights were violated under the Fourth Amendment and the N.D. Const. art. I, § 8, we conclude the district court erred in denying her motion to suppress evidence.

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