MA: Without furtive movement, no RS for car frisk

Defendants’ car was stopped for a traffic offense, and the driver wouldn’t look the officers in the eye and was nervous. His hands were on the steering wheel, and there were no furtive movements. A “protective sweep” of the car producing a gun hidden in the back seat was unreasonable because of a lack of furtive movements. The others were not abnormal. “[N]ervous or anxious behavior in combination with factors that add nothing to the equation will not support a reasonable suspicion that an officer’s safety may be compromised.’ … See Commonwealth v. Cardoso, 46 Mass. App. Ct. 901, 901, 702 N.E.2d 398 (1998) (officer may not conduct patfrisk just because nervous defendant does not maintain eye contact).” Commonwealth v. Johnson, 82 Mass. App. Ct. 336, 973 N.E.2d 146 (2012). [There was also an arrest warrant outstanding for a traffic offense, but that adds nothing, either.]

There was probable cause for plaintiff’s arrest, so a Fourth Amendment false arrest case fails. Ghaith v. Rauschenberger, 493 Fed. Appx. 731 (6th Cir. 2012).*

In a federal DP case, defense counsel’s alleged failures on a motion to suppress which included challenging the search warrant under the state nighttime search law [not a Fourth Amendment issue] were not ineffective assistance and those issues were tried in the original proceeding and already appealed. Barrett v. United States, 2012 U.S. Dist. LEXIS 115360 (E.D. Okla. August 16, 2012).*