N.D.Ind.: Long protective weapons search can be based on reasonable suspicion and without an arrest

The officer had probable cause to believe defendant wasn’t staying in his own lane, and the officer also had reasonable suspicion of drugs based on a CI’s statement. After the stop, a “protective sweep” of the car was justified under Long. United States v. Sellers, 897 F. Supp. 2d 754 (N.D. Ind. 2012):

There appears to be some ambiguity in circumstances, like the case at hand, where the suspect has been removed from the car (like the defendant in Long), but has not been handcuffed or arrested (like the defendant in Gant). The Sixth Circuit discussed this issue in United States v. Lurry:

During a Terry stop, Long allows officers to search an automobile’s passenger compartment for weapons if the officers have a reasonable belief—”based on ‘specific and articulable facts’ “—that the suspect is dangerous and may “gain immediate control of weapons.” Long, 463 U.S. at 1049 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). This rule recognizes that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Id. at 1047. Although Long does not apply where the suspect is handcuffed and under arrest, see Arizona v. Gant, 556 U.S. 332, 351 (2009), it applies where the suspect is not secured and might imminently reenter the car. Long, 463 U.S. at 1051.

No. 11-5604, 2012 WL 2337329, at *2 (6th Cir. June 20, 2012) (emphasis added). Additionally, the Sixth Circuit, in Lurry, and other circuits have held that Gant does not apply when a suspect has not been arrested. See id. at 3 (“Gant does not apply to cases where the suspect has not yet been arrested.”); see also United States v. Hagins, 452 F. App’x 141, 145-46 (3d. Cir. 2011) (concluding that Gant did not apply in factual situation similar to the case at hand, with the exception that the defendant in Hagins had been handcuffed outside the vehicle); United States v. Griffin, 589 F.3d 148, 154 n.8 (4th Cir. 2009).

In this case, defendant was not handcuffed, was not under arrest, and was not in the back of the squad car when the search for the gun took place. The officers knew that defendant was the target of a DEA drug investigation and that defendant had a gun in his car. Defendant could have broken away from police and grabbed the gun out of the car. Officer Geyer knew exactly where the gun was, and retrieved the gun from that location. Under the totality of the circumstances, the officers in this case had reasonable suspicion that defendant may have been able to gain immediate control of a weapon, King, 332 F. App’x at 336-37, and thus were justified in carrying out this minimally invasive search to ensure their own safety.

Note: The phrase “protective sweep” came from Buie and premises. Over time, the phrase evolved to encompass Long protective searches of cars.